Tag: penalty phase

Penalty Phase: The Prosecution’s Closing Argument

It was January 7, 2016 and Deputy District Attorney Matt Murphy was soon to begin his closing argument in the penalty phase of Daniel’s trial.  Judge Conley’s courtroom was packed.  The victims’ family members filled many of the seats. There were also quite a few young lawyer types in suits probably there to observe the battle royal about to take place between Murphy and Daniel’s defense lawyer, Scott Sanders.

One / One / One

The action started even before the jury was brought into the courtroom, when Matt Murphy contested a previous ruling in the case.

Normally, the prosecution gets to have the final word with the jury. The prosecution speaks first and last… a defense attorney sandwich, you might say. This “one/one/one” order is a way for the prosecution to rebut any statements made by the defense.

However, in an earlier hearing, Judge Conley ruled that in the penalty phase of Daniel’s trial, there would be a “one/one” order for the closing arguments, which meant that Scott Sanders would get to have the last words to the jury. It wasn’t exactly clear why Judge Conley had made that decision. It almost seemed like he’d done it in error and Sanders wasn’t going to let him just switch it back without a clear legal reason.

Matt Murphy was not happy about this, and he fought more than once to have the decision reversed. Scott Sanders was not backing down, though, and in the end he “one/one/won” the right to talk last.

This meant Matt Murphy would have to guess what Scott Sanders was going to say in his closing, and he wanted to counter any and all possible arguments Scott Sanders might bring up to defend Daniel’s life.

Murphy started his closing with the goal of making a personal connection with the jury. He said he felt he knew each of them from reading their questionnaires, and they would know in their own hearts what they should do. But, a moment later, he called upon the jury members to “put (their) feelings aside” and recommend death for Daniel.

Which is it? Use their hearts or put their feelings aside? These seem like mixed messages.

 Matt Murphy was going to say whatever it took to convince the jury that my friend Daniel Wozniak is irredeemable and deserves to die. Murphy suggested that there could be some situations where society might understand why a person committed murder.  The example Matt Murphy used was a revenge killing of a child molester. That’s the kind of situation where “well, maybe we would kill that guy.”(The child molester.)

But Daniel’s motivation, according to the prosecution, was money.  If Scott Sanders was planning to suggest anything else, Murphy wanted to knock out that idea before it could even be brought up.

Knocking Down The Defense Witnesses

Continuing with his closing, Murphy began to demean some defense witnesses.  He claimed Krystin Bergamasco’s testimony was insignificant, and what she had to say reminded him of when “he watched Glee” because of how much it sounded like high school drama.  Kyle Ruebel‘s testimony wasn’t to be taken seriously, either. Murphy acquiesced that Kyle is a nice guy, but he didn’t understand how he “got all the ladies.”

Dealing With Rachel Buffett

Next up, Murphy dealt with the Rachel card. He knew Scott Sanders would talk about Rachel during his closing, but what would he say? Murphy started listing possible topics Sanders might use in an attempt to throw some blame Rachel’s way:

  • The defense needs a villain to blame.
  • People don’t like Rachel.
  • Rachel was living with Daniel.
  • Rachel would also benefit from any financial gain.
  • Rachel was near Daniel while the texting to Julie was happening.
  • Rachel cried on-stage for the first time on the night Sam was murdered.
  • Rachel lied to the police about seeing a third man with Daniel and Sam on the day Sam was murdered.
  • She didn’t tell the police about Chris Williams.
  • She “echoed” Daniel’s lies about Sam having family problems.
  • Everett said that Rachel should also be on trial for murder.

Murphy didn’t argue against any of the Rachel accusations. In fact, he admitted that he “would love to bring (Rachel) to trial for murder,” but he didn’t have the evidence to do it. Murphy told the jury that he believes Daniel lied over and over when he said Rachel wasn’t involved, but Daniel wouldn’t “sell her down the river.” So, Matt Murphy decided to make it simple for the jury: “If you think she may have done it, just assume she did, but that doesn’t negate what Daniel did.”

That is a valid point. But it makes me wonder. How can the prosecution sell the jury on Daniel’s confession when they don’t believe it?

Murphy then proceeded to insult defense witness Daniel Munoz, calling Munoz an “idiot” and a liar, and claiming he was surprised “that guy didn’t get arrested on his way out of the court.”

I don’t believe it was necessary to be that rude. I think Murphy could have discredited Munoz’s testimony without it being such a personal attack on the guy.

A Reminder Of Motive

Then Murphy’s closing jumped back to the aggravating circumstances that make this a death penalty case: financial gain and multiple murders. He referred to this not being the olden days of Charles Dickens and A Christmas Carol, and how it was disgusting to have wanted money for a “silly wedding.” He wondered why Daniel’s computer didn’t contain Google searches on ways to make money such as selling a kidney or becoming a male prostitute.

Uh…? Charles Dickens? Male prostitute? What?

Obviously, he was trying to make the point that stealing  money to pay for a wedding is a sickening motive for murder, but his analogies were a bit peculiar to say the least.

Also, if Scott Sanders was planning to suggest that Daniel might have a more emotion-based reason for committing murder, Murphy was going to cross that bridge before Scott could come to it. The prosecution wasn’t going to get a rebuttal and had to make sure Daniel was painted as evil, not insane or intoxicated. After all, Daniel hadn’t done any Google searches about “hearing voices,” and no drug evidence was found.

I wasn’t sure if that meant there was no drug evidence found in any of the locations related to the case, or just in Daniel and Rachel’s apartment.  Either way, it surprised me. Early on in our correspondence, I got the impression that Daniel had been abusing drugs at the time of the murders. I don’t think that I misinterpreted this, but I did expect there to be signs of  drug use in Daniel’s  apartment. That is something I’ll want to ask him about. Hmmm…

I’ll finish with the prosecution’s closing argument in my next post.  We’ll start with why Scott Sanders called a sidebar in the midst of it..!

Penalty Phase: Detective Jose Morales

When I learned Detective Jose Morales would be the last witness called by Daniel’s defense team, I was particularly curious to find out how one of the lead detectives against Daniel was now supposedly going to help him.

I knew we weren’t going to get some kind of bombshell moment. Things like that happen during the guilt phase of a trial, and I didn’t expect Det. Morales to say anything that would call Daniel’s guilt into question. At this point, Scott Sanders was just trying to save Daniel Wozniak’s life.

During the guilt phase of the trial, Lead Detective Lt. Ed Everett made it abundantly clear he believes Daniel’s former fiancée, Rachel Buffett, should be facing the same murder charges as Daniel.

However, during Det. Morales’ time on the stand, Scott Sander’s didn’t ask any questions about Rachel during his cross-examination.

Still, I was anticipating a, “hey look over there at Rachel Buffett” approach now that we were in the penalty phase.

I was right.  First thing out of the gate was a question about Rachel’s own police interview.  Det. Morales was asked if he’d been part of Rachel’s questioning.  He had.

Rachel, Rachel, Rachel…

In fact, Detective Morales interviewed Rachel many times between 2010 – 2012.  I got the impression that he doesn’t have the same access to Rachel now.  Maybe a lawyer put the kibosh on her talking to the police?

…On When She Found Out About Julie

During questioning, Rachel had been repeatedly asked when she had found out about Julie’s murder. She always claimed to have learned about Julie death when everyone else did: after Steve Herr found her body in Sam’s apartment on May 22.

But Detective Morales confronted Rachel with the fact that there had been people at the theatre who’d heard Rachel speak about Julie’s murder earlier on that weekend.

…On What She Knew About Daniel’s Money Problems

During his testimony, Det. Morales revealed that Rachel lied to the police about her knowledge of Daniel’s money issues. She’d claimed not to know who’d loaned Daniel money.  She thought he’d borrowed from a loan shark and that Daniel was afraid of “having his legs broken” if he didn’t pay it back.

Scott Sanders led Det. Morales to tell the jury that he’d confronted Rachel. He knew it was Chris Williams who loaned money to Daniel, and he knew she knew. Why did Rachel not tell the police about Chris Williams loaning money to Daniel? Early in the investigation, Rachel stuck to the story that some “bad people” were involved in loaning Daniel money and Rachel was afraid of them.

In a 2012 interview, Rachel told the police that she’d kept Chris Williams’ identity a secret in order to protect his name.  But during Williams own testimony, he told the jury that Rachel knew there were no loan sharks.  So why had Rachel lied to the police about having a fear of them?

Scott Sanders questioned Det. Morales about Chris Williams’ cell phone movements on the day of Sam’s murder.  Williams left Rachel and Daniel’s apartment soon after Daniel, having just murdered Sam, arrived home that day. The jury was reminded that Rachel called Chris Williams not long after he left the apartment, and she was very upset, but didn’t say why.

…On Internet Use

Next, Det. Morales was questioned about the timing of internet activity at Daniel and Rachel’s apartment that day. I think the purpose of this was to show that Rachel was online when Daniel wasn’t home.

Scott Sanders didn’t link this to any of the incriminating searches that were used as evidence during the guilt phase. So why is it important that she was on the computer when Daniel wasn’t home? Oh, and by the way, the reason the police know Daniel wasn’t home: because that was when Sam was being murdered.

More Red Flags

Detective Morales had other suspicions about Rachel:

  • Rachel originally said she didn’t know what time she went to bed on the night of Julie’s murder. But later, she gave an exact time.
  • Rachel signed on to Daniel’s Facebook account during the weekend of the murders. He didn’t seem to believe her when she said this was common for her to do.
  • Rachel claimed she didn’t notice Daniel using a flip phone to send texts to Julie on the night she was murdered, even though Daniel owned a smart phone.
  • Some of those texts were “eerily similar” to statements Rachel made to the police during interviews.

Why All The Attention On Rachel Buffett?

So what was the point of all this, and did we learn anything new? At one point it was mentioned Daniel had made three calls to Rachel from jail (only one was played for the jury). I don’t think I knew that before, but I don’t know if it’s important, either.

I think Scott Sanders was trying to remind the jury that the police have doubts about Rachel. What did she know and when did she know it? Did she help cover up Sam’s murder? Was she directly involved in Julie’s murder?

And was any of it going to make a difference in determining Daniel’s fate?

When it was Matt Murphy’s turn to cross-examine Detective Morales, it felt like Murphy was giving Morales the opportunity to finish his sentences… as though Scott Sanders had been cutting him off.

I liked that little twist where a prosecution witness was now being cross-examined by the prosecutor – even if it did feel like they were still on the same side.

Murphy wanted to clear up any question the jury might have about the charges against Rachel Buffett. She is accused of lying to the police and being a murder accessory after the fact. Murphy asked Morales if he had anything to indicate that Rachel was involved with the planning of either murder. The answer was no.

Det. Morales was questioned about some of Daniel and Rachel’s computer searches. But they weren’t incriminating, so I’m not sure of the point of bringing them up.  They were all seemingly related to wedding and honeymoon planning: party rentals, cruise ship information, and Sandals Resort in Mexico. The searches were all done on Daniel’s laptop, not on the shared desktop.

That sounds like Daniel was doing a lot of the planning, but on Dateline, Rachel said he wasn’t interested or involved with the wedding plans.  I think either she or Josh Mankiewicz referred to him as a “typical guy.”

Detective Morales admitted that he doesn’t buy Daniel’s confession story, but pointed out that Daniel has always maintained that Rachel had nothing to do with the murders of Sam and Julie.

Det. Morales personally believes that Daniel told Rachel about the murder of Sam and the two of them planned to cover up Sam’s murder by killing Julie.  His theory is that Rachel had knowledge but she did not participate.

Matt Murphy was quick to point out that no matter what Det. Morales believed, there’s no proof that Rachel did anything but “echo Daniel’s lies.”

That was the end of it.  There would be no more witnesses and the jury was told to report the following Tuesday at 9 AM to hear the closing arguments.

In the next post: the beginning of Matt Murphy’s closing arguments. Matt and Scott Sanders each spoke for about six hours.  I have lots of notes.

Penalty Phase: Daniel’s Character Witness

We were down to the last two defense witnesses, including a character witness, and I don’t know if it would have been possible to find individuals on more opposite ends of the justice spectrum.

The first was Daniel Munoz, who met Daniel Wozniak when they were housed together at the Orange County Jail Intake and Release Center. They were like next-door neighbors… only in cells. The other defense witness was one of the lead detectives on the case: Det. Jose Morales of the Costa Mesa PD.

The Character Witness: Daniel Munoz

Okay, I’m going to admit it: my first reaction to seeing Munoz on the stand was, “WTF?” (I actually wrote that in my notes.)

I mean, I’m Daniel Wozniak’s friend, but no, I did not have an immediate positive reaction to Mr. Munoz being the one character witness the defense decided to put on the stand.

Don’t get me wrong. I’m not badmouthing Munoz as a person, but him having a rap sheet as long as my arm probably didn’t do much to impress the jury. Matt Murphy made quick work of besmirching Munoz’s reputation during his cross-examination.

For me, it ended up being rather ironic, because when Daniel Munoz described our friend Daniel Wozniak, it didn’t sound much different from how I would describe him.

He told the jury that everybody liked Daniel Wozniak and he was always willing to help anyone who needed it. Daniel Wozniak was cheerful, honest, and generous.  He would share anything he had.  Daniel Wozniak never got into any fights. He never got angry or confrontational with anyone. Munoz even credited Daniel Wozniak for helping him get his own life back on track when he helped Munoz find religion.

Yes, I know the “finding religion” business is a prison cliché, but that doesn’t mean it can’t be true.  God and religion are very important in Daniel Wozniak’s life, so it doesn’t surprise me that these topics would come up in conversation. 

Munoz told the jury how you meet a lot of different types of people when you’re in jail. It seemed like he was saying this life experience gave him an ability to be a good judge of character.

It’s not as illogical an argument as it might sound. Making friends in jail must have its challenges, and the inmates in Orange County are even more wary after all the information that came out in the past year.

Oh, and Munoz also said that even the deputies at the Orange county jail like Daniel Wozniak.

This is actually true. I’ve seen it. He gets along really well with the deputies. He doesn’t cause trouble. He doesn’t get write-ups. He’s basically a model prisoner.

Cross-Examining Daniel Munoz

Matt Murphy’s cross of Munoz went exactly how I expected. There was a lot of talk about Munoz’s criminal record. Murphy asked questions about Munoz’s tattoos, suggesting that Daniel Wozniak might have been afraid of Munoz because he looked scary and had a bunch of “prison tats.”

 Matt Murphy, that just seems like a nonsensical argument considering the large proportion of inmates who have ink.  Tattoos are pretty common these days, both in prison and in “the real world.” I have seventeen myself.  Daniel Wozniak is probably one of the only inmates  without any tattoos.

 I wonder if any of the jury members have tattoos..?

Determined to discredit Daniel Munoz as a character witness, Matt Murphy hammered away at Munoz’s criminal record, to the extent that at one point Munoz even complained to the prosecutor, “You’re making me feel like I’m on trial here.”

Oh yeah? Try writing a blog about Daniel Wozniak…

When it was time for Scott Sanders to re-cross, he asked Munoz if there was benefit in coming to testify for Daniel Wozniak.  No, there wasn’t.  No deals were made. Munoz just insisted on testifying because he wanted to show the jury another side to Daniel Wozniak… the side he knows… the same side I know.

Why Didn’t I Testify?

That brings us to a question I’ve been asked more than once: Why didn’t I testify for my friend?

I’m an upstanding member of society; wouldn’t my opinion mean something to the jury?

My answer is: if I had been asked, I would have.  Daniel didn’t want those close to him to testify.

My personal gut feeling is that Scott Sanders might have wanted to call Daniel’s parents or other relatives to the stand.  Aside from me, Daniel has numerous people who are still close to him. It wouldn’t surprise me at all if there were other people willing to testify on Daniel’s behalf.

That didn’t happen, though, and I’m pretty sure it was because Daniel wanted to spare his friends and loved ones from being cross-examined.

More questions for any jury members who are reading this:

  1. What did you think of Daniel Munoz’s testimony?
  2. Did you wonder why no one else testified for Daniel’s character?
  3. Would it have made any difference to you if there had been other character witnesses?

Coming Up: Detective Jose Morales

It was an interesting choice to call one of the CMPD officers in charge of the entire case as the last defense witness.

During the penalty phase, when the prosecution called Detective Morales to the stand he was mostly questioned about locations related to the crime.  He’d shown the spots on a map. Morales was also the officer who took the photos of the texts on Julie Kibuishi’s phone, the ones displayed during the guilt phase.

At that point in the trial, Scott Sanders didn’t even cross-examine Det. Morales when he was on the stand.

Now, the officer would be the final witness in an attempt to convince the jury not to execute Daniel.

I was intrigued.

That testimony will be up next on DWIMF.

Penalty Phase Prosecution Witnesses: Day Two

Day two of the penalty phase in the trial of Daniel Wozniak started with a ruling about bringing up the criminal background of defense witness Daniel Munoz, who would vouch for Daniel’s character later that day. Judge Conley used what he called a “quick and dirty approach” to go through the rather long rap sheet of this witness, and told Matt Murphy to “make (him) an offer” about what priors he wanted to mention to the jury. Munoz met Daniel when they were both in jail.

While Matt Murphy discussed Munoz’s numerous “scary” tattoos, I couldn’t help feeling that this man might not impress the jury that much.  I think his crimes were all theft related… maybe some gang stuff… I’m not sure.  Either way, I’m not knocking Mr. Munoz as a person, but as a character witness. He probably wasn’t up there with church pastor, you know?

After this business was settled, the bailiffs brought Daniel Wozniak into the courtroom.  You always know when they are bringing him into the courtroom because you can hear the cell doors clanking open and slamming shut right before he enters. It’s like a sound cue.

In spite of being on trial for murder, Daniel has a natural bounce in his step even when chained and handcuffed.  That probably rubs some people the wrong way.

There was a short wait before the jury was brought back in. One of them was running late. In that person’s defense, it had been seriously pouring rain that morning and there was flooding and traffic jams everywhere.  Give us Californians an earthquake and we’re fine, but when water falls from the sky, it causes problems.

Once everyone was in their spots, it was time for the prosecution to continue with witness testimony.

Emi Kibuishi

The next person up was Emi Kibuishi, the youngest of the Kibuishi children.  She described her big sister, Julie, as a loving protector with a big personality.  She, and a cousin, looked up to Julie and the three of them were always together.  They loved to dance.

At one point, Murphy put up a picture of the girls from Halloween.  Emi was a bunny and Julie was Jasmine from Alladin.

Julie’s murder happened on the day of Emi’s senior prom. The next morning, Emi was scheduled to try out for the spirit squad at the University of California, Irvine.  The family decided to keep her sister’s death from her until after.

Emi thought it was strange When the entire family came to pick her up after the tryout. But when she saw that her mother was crying, she immediately realized that Julie wasn’t in the car, and she knew something terrible had happened.

There was no cross-examination. Another good decision for Scott.

June Kibuishi

Julie’s petite and soft-spoken mother, June Kibuishi, was the final prosecution witness.  When I was going over my notes from the trial, I noticed that I didn’t have that many for Julie’s mom.  I don’t think she was on the stand for that long, but I still felt like my notes might have been lacking.

There were a lot of times that I cried during this trial, and I suspect that was the reason my notes are choppy.

When June Kibuishi had been pregnant with Julie, she was told she was having another boy. But on Valentine’s Day in 1987, the Kibuishi family was thrilled to welcome their first girl.  On the stand, June described her daughter as a bubbly and athletic tomboy who balanced playing softball with her love of dancing.  Her voice cracked as she told the jury about little girl’s fondness for skirt spins and curtsies.

Julie was accepted into the Commercial Dance Conservatory at the prestigious Orange County School of the Arts (OCSA) in the eighth grade.  June Kibuishi proudly explained that this was when the school had first started accepting junior high students.

OCSA held a memorial for Julie at the ten-year reunion of her high school graduation. A plaque in her honor was put up at the school with the words: Juri “Julie” Kibuishi. Always in our hearts. Next to the message is an inlaid image of a dancing young woman.

Various photographs were displayed on the video screen during June Kibuishi’s testimony. We saw a picture of the plaque, one of the Kibuishi extended family in front of a Christmas tree, and another Julie and June together.  The two of them looked so happy in that image; June’s head resting on Julie’s shoulder.

At the end of her testimony, a sobbing June Kibuishi held up the tiara her daughter Julie was wearing when she was murdered.

And again, there was no cross-examination.  Phew.

The jury was sent out for a break, and an agitated Scott Sanders had a point to make with the judge.

The Tiara

There had been no disclosure to the defense that the clearly inflammatory tiara would be brought into court. It hadn’t been previously introduced as a piece of physical evidence.

Matt Murphy insisted that he had no idea what June Kibuishi had planned to say on the stand that morning, and that up until then, he thought the tiara had been cremated.

Scott countered that there was no way he could address the tiara with June—or question any of these grieving witnesses—without (I can’t remember exactly how he phrased it, but this is what I wrote in my court notes, so I’m not quoting here) looking like a dick.

Next time: the very first defense witness of the entire trial.

Penalty Phase – Prosecution Witnesses

After opening arguments in the penalty phase of Daniel’s trial, it was time for the prosecution witnesses.

Miles Foltz

The first witness was Sam Herr’s best friend, fellow combat veteran Miles Foltz.

Okay, if you are Matt Murphy, and it’s your goal to make the jury hate Daniel Wozniak, then Miles Foltz is a dream witness. Here was this tough looking solider guy who couldn’t stop his voice from cracking with emotion while he talked about his best friend Sam and how they were stationed together at Camp Keating in Afghanistan. Miles opened up about the daily dangers they faced during that time in “the fish bowl,” and how they joked about their bullet dodging skills.

“No matter where we’d go, we’d always get shot at, but they never got us,” Miles Foltz choked out.  It was during their time at Camp Keating that Sam accrued quite a bit of combat pay, which all went into the bank because there was, “no place to spend your money.”

Sam and Miles had even made a “we’ll be each other’s best man” plan for when either of them got married, but when Miles Foltz did get married, his friend Sam wasn’t there.  He had survived combat only to be was murdered after coming home. Sam’s dad Steve Herr stood in for his son as the best man at Miles wedding.

Remember the end of the last post, when I told you to bring tissues..

The defense didn’t have many questions for Miles during the cross, but Scott Sanders asked him if he’d met Rachel Buffet and if she had ever made any comments about having an issue with a loan shark. Yes and yes.  And during the re-cross, we learned this made him immediately suspicious of Rachel and Daniel.  That’s one of the reasons Miles contacted the police and Steve Herr when Sam went missing.

I had no idea that the term “loan shark” was still in use until this trial. The expression seems so Jimmy Cagney/Turner Classic Movies.

When the grief-stricken Miles Foltz left the stand, Sam’s parents embraced him.  The prosecution could have stopped right there and still easily convinced the jury to choose the death penalty. But they did not.

Steve Herr

The next witness for the prosecution: Steve Herr

Steve Herr (who pronounces his name like “hair”) is easily recognizable with his grey hair and blazer. During the hearings, he always wore jeans, but he switched to khakis during the actual trial.

I’ve spoken with Steve on a few occasions and overheard him talking on many others. He is a chatty guy who has remained personable throughout this nightmare. All the media people know him.  He greets with hugs and handshakes and smiles. This man who could be a “grandfather type” from central casting won’t have that opportunity now, because his only child was murdered.

Sam grew up in California, near Magic Mountain.  Without going into specifics, Steve Herr admitted that his son had gotten into some trouble when he was younger, but Sam had made a complete turnaround after joining the Army.  “The event,” as Steve referred to Sam’s killing, happened right before finishing his first year of college.

Steve Herr’s testimony was gut-wrenching.  He often apologized about “rambling on,” as anger and frustration poured out him while he jumped from point to point.

When he found Julie’s body in Sam’s apartment, he called 911 immediately and was positive that his son hadn’t done it.

  • When he found Julie’s body in Sam’s apartment, he called 911 immediately and was positive that his son hadn’t done it.
  • “I wanted to find the MF who did this!”
  • For reasons that were not explained, he’d had a deep fear that Sam would be dismembered, and then he found that to be the case.
  • On his son’s birthday, he was praying that they find Sam’s head so they could give him a proper burial.
  • “The worst thing you can ask of a man is to feel helpless,” he stated about not protecting his only son.
  • He talked about his wife Raquel and how sad she looks when she sees people with their children.
  • Steve Herr said of seeing Sam at his funeral that he “never want(s) to forget seeing (his) son all sewed up.” He never wants to forget the evil.
  • Even though Steve didn’t personally witness the dismemberment of Sam’s body, he can’t stop picturing Daniel “hacking and sawing” his son.

The human mind is fascinating.  I don’t doubt what happened, but I’m personally not able to picture the man I know as my friend doing those horrific actions. Truth is, I have tried, actually, but the mental image morphs into him being on-stage and waving his arms around during a musical number.  I probably just don’t want to be able to “see” it, you know? It’s easier to be his friend that way.

 When Steve Herr finished testifying, the defense chose to not ask any cross-examination questions.  That seemed like the smart choice.  Sometimes I feel like Steve might dislike Scott Sanders as much as he does Daniel Wozniak.

Raquel Herr

The next witness up was Sam’s mother, Raquel Herr.

This was the first time the jury would hear from Sam’s mom. Unlike Steve, she wasn’t an actual witness in the criminal case.

Raquel said that even though she had been told she could not have children, she was blessed with her only child when she was 35.  Sam was her “prince,” she told the jury, and while the police and her husband were searching for Sam, her fear and anxiety caused to her to be bedridden for six days.

At one point, the judge had to ask Raquel to slow down for the court reporter.  She apologized to the jury that her emotions and Spanish accent were making her difficult to understand.

Raquel Herr said she has God and her faith, and she doesn’t want to be angry. She wasn’t on the stand for long, but her impact was powerful.

Again, there was no cross-examination by the defense.

Miriam Nortman

After Raquel Herr, her twin sister, Miriam Nortman, took the stand.

Sam’s aunt, the self-proclaimed “firecracker” in the family, was overwrought as she explained how difficult it was to see her sister suffer. She spoke of the joy felt by their entire family when Sam was born. But now Miriam’s own children and grandchildren are a constant reminder of what her poor sister lost when Sam was killed.

Her anger and sadness boiled over as she explained that when she thinks about her nephew being dismembered, it makes her feel like her own arm, leg and head were being cut off.

Again, the defense made the smart choice of not cross-examining the witness.  Why upset these people more, right? There is the stereotype of the ruthless defense attorney who will do anything to free a client, but I just don’t think that is Scott Sanders.  He seems like a guy who just cares a lot about the law and following it to the letter.

The Kibuishi Family

The next group of witnesses would be members of Julie’s family, with Taka Kibuishi, Julie’s older brother, called first.

This is not to belittle Sam’s murder, but just for me personally, the murder of Julie has always been the most heartbreaking in this crime. She just seemed like such a sweet and defenseless innocent.  There really wasn’t a huge age difference between Sam and Julie, but Sam had seen so much of the world and he had faced death before. It’s like he’d at least had the opportunity to live, but she was just getting started.  Also, she was a girl.  Yup, I have a double standard there.  Anyway, Daniel knows that I am particularly sickened by the murder of Julie. I don’t mince words with him.  He knows that I am his friend, but I won’t ever forget why he is where he is.

As you probably all know, Julie had been wearing a princess tiara when she was shot twice in the head.  It’s a small element to the story, but its symbolism is gut-wrenching.  She still lived at home with her parents, she had a Taylor Swift ringtone, and she was wearing a tiara when she was murdered.  Julie was wearing that tiara because her brother Taka had given it to her over dinner.  She had just been asked by Taka and his fiancée to be a bridesmaid in their wedding.

Have you notices that there are a lot of weddings in this story: Taka’s, Miles’ and Rachel and Daniel’s?

Taka continued by saying they’d gone out to a restaurant that evening to celebrate and “everything was great.”  Six months later, when the police returned Julie’s car to her family, they would find the leftover Thai food that had been sitting in it since that dinner.

Taka Kibuishi described the closeness of his family.  He talked about how the two older Kibuishi brothers always looked out for the two younger sisters.  There was help with studying and creating job resumes.  Taka had even grilled Julie about her relationship with Sam, who Julie had insisted was just like another big brother.

Julie Kibuishi was sweet, artistic, talkative and a great dancer.  The arts high school that she’d attended is very close to the Santa Ana courthouse, so the Kibuishi family is constantly reminded of happier times whenever they return to this neighborhood.

I have a personal connection to that arts school.  The kids there are amazing.  After a rigorous academic school day, they spend an extra three hours a day taking classes focused entirely on their artistic discipline.

Taka’s love for his little sister was undeniable as he broke down on the stand, beating himself up for not stopping her from going to Sam’s apartment that fateful night.  “I had so many chances to try to stop her,” he lamented. And Julie’s murder has caused so much stress and grief for this very private family.

His anger flared as he described Daniel Wozniak as a disgusting monster who had disrespected his beautiful sister just to use her as a decoy.

You know the expression, “there wasn’t a dry eye in the house?” Well, there wasn’t. 

The defense did not cross examine this witness either.

At that point, Judge Conley decided to break for the day.

As I watched the jury file out of the courtroom, noticeably moved by Taka’s words, the expression “another nail in the coffin” seemed fitting in describing Daniel’s fate.

Up Next: More Prosecution Witnesses…

In the next post, I’ll continue with the prosecution witnesses and you’ll get to hear the defense’s argument for giving Daniel life without the possibility of parole.

If you haven’t been following the story in the news, Daniel’s sentencing hearing has been re-scheduled for May.  Scott Sanders is filing a brief to have the death penalty removed in Daniel’s case.

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.

BUT…

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.

Oops?

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.

Phew?

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.