Defense in double-murder case plans to take fight to remove judge to state Supreme Court

The lawyer for a Costa Mesa man accused of double murder said Friday that he will petition the California Supreme Court to consider his attempt to bar an Orange County judge from overseeing the trial.

A day earlier, a three-judge panel of California’s 4th District Court of Appeal had denied public defender Scott Sanders’ appeal in the matter.

Sanders so far has been unsuccessful in getting Superior Court Judge John Conley removed from the capital murder trial of Daniel Patrick Wozniak, an aspiring actor accused in the slayings of two Orange Coast College students in 2010.

According to grand jury testimony from police, Wozniak has admitted to killing Sam Herr and his friend Juri “Julie” Kibuishi.

Prosecutors allege that Wozniak tried to throw police off his trail by staging Kibuishi’s body to look as if Herr had sexually assaulted her and then dismembering Herr’s body to hide it in hopes that police would assume Herr had fled after attacking his friend.

Wozniak’s trial has been on hold while Sanders fights to take the death penalty off the table based on his allegations that the Orange County district attorney’s office and Sheriff’s Department illegally directed or aided jailhouse informants and a TV production crew to coax damaging information out of Wozniak and other high-profile defendants.

Sanders asked last month that Conley be pulled from the case because Sanders planned to call the judge as a witness during hearings on the allegations.

Conley was a homicide prosecutor in Orange County from 1980 to 1982, and Sanders said the judge could have crucial information on how that unit used jailhouse informants.

Conley declined to step aside, saying the last time he had used an informant was 30 years ago and that any knowledge he had would be irrelevant to the case at hand.

When a Los Angeles County judge sided with Conley in March, Sanders appealed.

On Thursday, the state panel rejected his request, which sought to delay any movement in the trial until the appeal was resolved.

Sanders said he intends to petition the California Supreme Court to take up the issue, but in the meantime, the case will edge toward trial.

“I don’t want us to sit here just looking up at the sky while the time is ticking,” Conley said.

He said it is statistically unlikely that the high court would grant Sanders’ petition.

Conley was assigned to the case in February after Judge James Stotler recused himself, citing his concern that he may have become biased against Sanders.

Conley said he will turn his attention to issues that have been lingering in the case, including a subpoena of cable TV network MSNBC.

Sanders said he is seeking information from the network because he believes sheriff’s deputies might have helped arrange a jailhouse interview with Wozniak for the show “Lockup.”

Sanders also is seeking to subpoena information from the Sheriff’s Department about a group of deputies who he alleges work to gather leads to help prosecutors.

“They work on high-profile cases,” he said. “They help develop information.”

Last month, Superior Court Judge Thomas Goethals replaced the district attorney’s office as the prosecution for Sanders’ client Scott Dekraai, who has pleaded guilty to killing eight people in a Seal Beach salon in 2011.

Goethals wrote that certain sheriff’s deputies had lied or willfully withheld details about the informant program while they were under oath. He said the district attorney’s office had chronically failed to turn over evidence to defendants.

The California attorney general’s office, which replaced the district attorney on the Dekraai case, said it plans to appeal that decision.

In court Friday, prosecutor Matt Murphy argued that the people’s case against Wozniak does not have the same issues as the Dekraai matter.

Murphy said he learned of the MSNBC interview only when the network began airing ads about the segment. He added that any potential wrongdoing in the jails should not taint his case because the Costa Mesa Police Department, not the county Sheriff’s Department, investigated the Wozniak case.

“I have never spoken to them, your honor,” Murphy said of the jailers in question. “I never met with them.”