Penalty Phase – Opening Arguments

The penalty phase of Daniel’s trial started on January 4, 2016. Court began at 10:30 that day, and I was bundled up while walking to the Orange County Courthouse. I’d even broken out gloves and a scarf for this Californian’s version of a winter morning (I think it was 60 degrees Fahrenheit, so, brrrrrr).

Or, it’s possible that heading up to the eighth floor to watch twelve people decide if my friend should be put to death made me feel cold from the inside out.

The guilt phase of Daniel’s trial was all about facts. But, in the penalty phase, emotions would dominate.

Before the jury could be brought into the courtroom, the judge made some rulings on whether or not to allow certain photographs relating to Sam Herr’s funeral into evidence:

• A photo of Sam’s parents being handed a folded American flag: Allowed.
• Soldiers carrying Sam’s casket: Not allowed.
• Sam’s former fiancée crying over his casket: Allowed.
• Umm, I think there was one of Sam with a puppy he adopted while serving in Afghanistan: Not allowed.

Don’t get me wrong, I certainly didn’t want the jury to give Daniel the death penalty, but was one “puppy picture” going to tip the scale? Of course, people do love puppies. I love puppies. Would it have taken the jury even less time to decide on death if they had seen the puppy picture?

Then there was discussion about the Google searches found on the computer from Daniel and Rachel’s apartment. The jury had already seen the searches during the guilt phase, but Scott Sanders didn’t want them to be reminded that inquiries about cruise ship amenities coincided with questions about hiding bodies. Judge Conley said the law was strict where the death penalty applied, and he ruled that the jury didn’t need to see certain information twice.

I am pretty sure that no one could forget those searches anyway.

Judge Conley gave the jury additional instructions when they were finally brought in at 10:50 AM: “Nothing the attorney says or asks is evidence. Only what the witness says is evidence.”

Okay! Everyone… ignore the lawyers!

Next, there was an explanation about the difference between mitigating and aggravating circumstances. Mitigating circumstances should lean the jury away from choosing the death penalty; aggravating circumstances are the “let’s fry him” details.

So far, there hadn’t been much in the way of mitigating circumstances, so I wondered if we could expect some from Scott during this phase of the trial.

The penalty phase is almost its own mini trial. It starts with opening arguments. Then there’s the questioning and cross-examining of witnesses, and it ends with closing arguments.

An interesting little side note: Normally the prosecution has an opportunity to give a rebuttal after the defense closes. However, because of a previous ruling in this case by Judge Conley, the defense would actually have the last word during the penalty phase. This caused a great deal of contention for Matt Murphy, who continuously tried to fight this motion up until the end of the trial.

Then, it was time to get started. Everyone was in their place. Matt Murphy was raring to go.

Another side note (sorry, but this one is directed to Matt, Scott and Tracy): As a theatre director I need to tell ALL the attorneys to SPEAK UP. My goodness, you folks need to learn how to project and enunciate. Seriously. This is not meant as an insult. It’s just constructive criticism. Maybe you’re trying to make a more intimate connection with the jury. If that’s the case, you can accomplish this without dropping your volume. I’d even be willing to rehearse with any of you if you’d like. As an example, remember on Monday when we were all waiting around in the courtroom for that other case to finish? Well, I had no trouble hearing those attorneys, and they had their backs to the audience. So, just sayin’.

And back to court.

Matt Murphy was up. He started by talking about Daniel’s life. He directed the jury to his first PowerPoint slide.

But, in a rare move for the defense in this case, Scott Sanders actually piped up with “Objection,” and said he needed to address the court in chambers.

MMTVL was intrigued.

Daniel was left alone at the defense table. Usually, he would just stare forward. Maybe he was making anagrams out of the letters on the seal of California.

When everyone was back, Matt Murphy went back to the PowerPoint and BAM, Scott was objecting again. Some spectators scoffed at his request to return to chambers.

Daniel even turned from the table to give me a quick confused glance.

They returned from chambers, and the judge explained what was causing the commotion. The first objection was to some information about Daniel’s life and background contained on one of the PowerPoint slides. During the first trip to chambers, the slide was ruled inadmissible.


It turns out that slide was still up on the screen when the machine was turned back on. This meant that the jury could have easily seen the inadmissible information.

Hence Scott’s second objection.


This could have turned into a huge ordeal, but Judge Conley wasn’t going to stop the trial quite yet.

In addressing the jury, he wanted to know if any of them had seen the information on the slide. Show of hands? Then each of those jury members were brought into chambers to be individually questioned by the judge and the attorneys. After all was said and done, it was agreed that everyone could just forget whatever they saw and we could get on with our trial.


So, what was on that slide? Really, it was just information about how Daniel’s background had been pretty normal. Maybe Matt wanted to point out that Daniel had no excuse for his actions, having been raised in stable family environment.

And why should the defense want to want to keep this from the jury? I know that Daniel wants to protect his family’s privacy as much as possible, but it seemed like such a fuss over something apparently fairly innocuous.

Rachel Buffett was next on Murphy’s agenda. He was pretty sure that Rachel would be a much-discussed topic during the defense’s arguments (she was), and if the jury was going to have any doubts about Daniel’s level of guilt, he wanted to nip them in the bud now.

Matt admitted that there are plenty of reasons to suspect Rachel of being involved with Daniel and the crime:

• Some people don’t like her (specifically certain police officers).
• She was living with Daniel, and they were always together. So she must have known what he was doing.
• If Daniel gained financially, then so would Rachel.
• She cried onstage (during a crying scene).
• She lied to the police about seeing a third man with Sam and Daniel on the day Sam was murdered.

But then Matt Murphy went on to defend Rachel’s claims of having no involvement whatsoever:

• None of Rachel’s DNA was found on the murder weapon.
• Her DNA was not found on the backpack
• Rachel didn’t borrow any money from Chris Williams.
• She told Chris that Dan was a pathological liar and not to trust him.
• Rachel called Detective Morales and turned over evidence to him.
• She’s had steady employment at Medieval Times and hasn’t been in any trouble since the murders happened.
• During his confession, Daniel himself insisted that Rachel wasn’t involved.

I think that Matt wanted to try to cover all the bases and be ready for whatever the defense was going to say. It appeared that he wasn’t taking any chances that the jury might blame Rachel and possibly not choose death for Daniel.

Will the Orange County D.A.’s office emphasize Rachel’s good qualities when they have her on trial?

Daniel's Google search (courtesy of ABC7)
Daniel’s Google search (courtesy of ABC7)

Next, the prosecution went on to remind the jury about a few of those Google searches, including the “making sure a body isn’t found,” and “head gunshot.” Matt wasn’t allowed to talk about the search for “Sirius” (This is probably because the brightest star in the night sky, also known colloquially as the “Dog Star” isn’t likely an important issue in this case).

Then Matt summerized the testimonies of witnesses Chris Williams and Wesley “ATM kid” Frielich. The prosecution did not want the jury to forget about how emotional each of them had been on the stand. They both talked about feelings of betrayal and fear as a direct result of Daniel’s actions.

All of this was Matt’s argument proving that Daniel Wozniak doesn’t deserve to live. The jury should see he is callous, self-serving, and that friendship means nothing to him. Murphy connected Daniel to his ironically similar character Guido Contini, in the musical Nine. The jury heard that while Daniel and Rachel were singing and dancing onstage, Julie’s and Sam’s families were in a panicked search for their loved ones.

Matt Murphy went through the timeline again. He reminded the jury of Sam’s murder in the theatre attic. After that, Daniel started taking out some of Sam’s money. And to make it look like Sam was on the run, there was the plot to lure Julie to Sam’s apartment in order to kill her and frame Sam.

Matt claimed Daniel knew that Julie and Sam were good people. He was aware they both had friends and family members who loved them, but he didn’t care. As he finished his opening arguement, Murphy wanted to convey to every one in the courtroom that today was for those friends and family.

It was time for the defense’s opening arguments. Once again, Tracy LeSage took the stage.

She started by telling the jury that the defense appreciated and respected the thoughtful consideration they used during the guilt phase. She also admitted that the defense was in no way trying to excuse or justify Daniel’s actions. However, she asked that they be fair to both sides, to please keep an open mind and look deep inside themselves, and to bring justice to the process.

That was it. She didn’t really cover any more ground than she had in her closing for the guilt phase.

As far as Daniel avoiding the death penalty, well…let’s just say I wasn’t hopeful (good thing, right?).

Next up: The Prosecution’s witnesses and victim impact statements. You might want to have a box of tissues nearby.

19 thoughts on “Penalty Phase – Opening Arguments”

    1. How so Bill? Scott Sanders did not have a lot to work with. Not sure if they really needed two PDs on the case. There may have been some different angles to take, but the defendant may have not wanted to venture down that road. I was surprise that the prosecution was so tough with the death penalty, considering that the defendant gave them an easy confession.

  1. I am torn about the death penalty phase. Daniel did terrible things – he deserves to be punished. After much thought, I think he should have gotten life without the possibility of parole. For a person who could kill a friend and an acquaintance, the death penalty would be too easy. Cold, I know, but it’s reality. Daniel obviously needs psychiatric help because he was able to go against his normal upbringing and commit murders. Help which he will not receive in prison. I’d like to hear Daniel’s take on all his actions now that he has been caught and tried and now sentenced. That would be eye-opening.

  2. that was a short one, please elaborate in your next post a bit more as I was unable to attend any of the hearings and I wanna know more! I will definitely be trying to attend the next one to hear his final sentence cannot wait!

  3. I couldn’t find an answer to one of my comments. Have you asked Daniel if he is guilty? Have you talked to him about motive? Does he feel the same about Rachel? What about his parents – not much info about them. Do you still visit? How often? Where will be moved to to await his sentence?

    1. Daniel doesn’t deny guilt, but you readers know that I don’t believe the motive for many reasons. Does Daniel feel same about Rachel? No. That love story is long over.
      I visit Daniel regularly – about once a week. I expect the judge to follow the jury’s advice and sentence Daniel to death. If that is the case, he will be sent to San Quentin. That is only death row location in California. I plan to visit him there as well.

      1. if you don’t believe that was the motive than what was!!!?? Have a better reason why this insane person committed such a disgusting, atrocious crime? Other than a total lack of empathy and sympathy.

  4. This is a very clear cut case where the death penalty is appropriate. This person planned out the murder of a friend trying to help him, then he planned the murder of another one to try and destroy the first ones memory. In the course of doing this he destroyed two family’s, three if you count his.

    As far as why he did it, don’t over think it, sometimes the simple answer is the correct one. He is a sociopath who knew Sam had some money saved up and he wanted it. My guess is he would have willingly killed more people if he had to and felt he could get away with it.

    There is no reason why he should continue to exist. There are some lines that once crossed you cannot come back from. Execute him quickly and with a minimum of fanfare.

  5. Is it possible that Sam Herr and Rachel had an affair? Could there be a money + revenge motive?

    It’s too bad the DA didn’t leave some room for Daniel to testify against Rachel.

    1. BINGO! I watched Plot Twist, was horrified, greatly saddened but consumed with figuring out what Dan’s real motive could have been. I’ve read every post, every comment and FINALLY! That suspision has been nagging at me since almost the first. 0h, man!

      Down the rabbit hole…dark and scary.

      1. You all know that I don’t believe the confession. I’ve always believed that this crime wasn’t planned and calculated, but was much more emotion based.

        So, then the question is – Why wouldn’t Daniel tell that to the police?


    2. My thoughts exactly. I have a funny feeling Rachel may have been less than faithful to Daniel (and not just with Sam, allegedly.)
      Is there any evidence that juri knew or had met Daniel prior to the murders?
      Her being a dancer an all, could they have met?

  6. Totally agree with Jim. What an idiotic monster!!!! Rachel is playing dumb. I mean her life was in upheaval in an instant and her demeanor is so full of bs. And that email she sent Julie was so CYA. Words she chooses in response to this is cunning. She admits not having helped the monster, but when she says she didn’t have anything to do with it–in her mind, she (and God) knows she didn’t participate IN physically committing the murders. I really hope she goes down too.

  7. Rachel Buffett is a perfect example of someone with Narcissistic Personality Disorder. It’s certain that she is not innocent. Her affect, their relationship, her need for approval and inability to feel… I guarantee that she is one of those people that never apologize for anything. They tend to be likable from the outside, but create mental abuse without their loved ones even knowing that they’re being manipulated. Watching interviews with her is disturbing on so many levels. The fact that she TRIES to be a victim is sick. The funny thing about NPD is that they’re right on the same level as socio/psychopath. They completely lack empathy. They’re also very smart. Incest, sadly, often lends itself to NPD families. After seeing how the only form of emotion she showed was when she talked down about his family, and complaining that they were so non-chalant… That hammered it home. NPD/socio/psycho people find partners in codependants that will die for them, and also similarly-minded individuals. I guarantee she hates his family, but I also doubt that she knows that it’s because she is just like them. Your ‘friend’ is guilty as fuck, but crazy people don’t claim that they’re crazy, as he did. NPD people don’t get their hands dirty, ever. I guarantee she co-conspired in this, even if it was masterfully without outright saying it. These were NOT her friends that were murdered. These were people that were nice to them and these dimwits were secretly jealous of their ease with true happiness and love. It’s sad, really. They simply lack all form of empathy… And I’d be willing to bet… She’s far worse. Extreme NPD people can’t feel love- and he really wanted love from her, so much that he may never realize that it was never there. Most people live their whole lives around NPD people, never knowing what the hell is happening. Truth is, anything that people do cruelly is out of a lack of understanding unconditional love. People don’t kill out of hate for another- they kill out of a hate for themselves. Too bad, dude. Maybe he’ll work on building his soul, not his ego, in the next life.

  8. Dear author, Can you ask Daniel if he didn’t have a bench warrant out for his DUI arrest, could he honestly see these murderers happening? Also, Rachel had to have something to do with it. Dan’s confession was in sequence to cover up for her and his brother Tim. Also, Rachel would have to wonder where Daniel was getting all this money from. She seems to be a pretty smart girl who wouldn’t take just any explanation.

      1. Thanks. Yes, I looked up Daniel’s court records and it was interesting to see that he was arrested by Costa Mesa PD a week before he was arrested for the murders. It shows he used a bail bond of $15,000 to bail out. Later, he showed Wesley (ATM kid) bail bond papers and I also believe that this arrest and experience for Daniel started a conversation at the apartment jacuzzi among the group about Sam’s past trial. It’s pretty ironic that the OC District Attorney’s probation violation against Daniel can be the first domino to fall. Just for someone not going to MADD classes…

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