Is OCDA The True Public Enemy Number One?

Orange County prosecutors quietly handed white supremacist thug and pre-trial inmate Jason Fenstermacher a spectacular, sweetheart deal in August. It was an unexpected coda to a career in lowbrow crime that began around 2002, when the heroin-addled car thief and burglar needed to toughen his image as a scared, 21-year-old newbie in a California prison.

Back then, Fenstermacher–a San Clemente High School product–burned plastic, trapped the soot, mixed in mouthwash and, using the battery-fueled motor from a dismantled tape player, converted the shaft of a pen into a sharpened tool that ejected ink for a conspicuous neck tattoo: “OCS.”

Wearing the Orange County Skins tattoo was reward for Fenstermacher committing assaults and stabbings for the gang, and over the years, he inked his body with other symbols, including a pro-Adolf Hitler swastika and the words Driven by Hate, another less-than-subtle hint about his contempt for non-whites.

Increasingly skilled in hoodlum arts, Fenstermacher in 2007 moved up to join the ranks of Public Enemy Number One Death Squad (PEN1 or PENI), a more powerful, OC-created, criminal outfit. But he faced a dilemma. What to do about that OCS tattoo that robbed him of PEN1’s more-lethal stature? He couldn’t wear turtlenecks in a group that prefers to don wifebeaters while they ingest methamphetamine and grunt to screeching white-power tunes. So Fenstermacher altered the “OCS” to “PDS” for PEN1 Death Squad.

The con wasn’t just into symbolism. He eventually served as a willing assassin for the Aryan Brotherhood that enjoys superiority over PEN1 because its members are more criminally insane. In June 2007, two white supremacists–Jeffrey Paxton and Sam Hardcastle–held fellow Chino State Prison inmate Joseph Govey while Fenstermacher repeatedly stabbed the target in the neck and head during a daily exercise break, according to court records.

The attempted murder failed, but not for a lack of effort. The shank–the thug brought a plastic one because a prison guard tipped him off that metal detectors would be in use to get to the yard–broke off in the victim’s head during the gruesome assault. For unknown reasons, law enforcement officials, who’d collected evidence of the attempted killing, didn’t file charges.

By 2012, Jim Mendelson, an Orange County district attorney’s office (OCDA) prosecutor, knew Fenstermacher had tried to kill Govey, but he didn’t care. A gruff, near-permanently scowling ex-military officer, Mendelson wanted to inflict as much criminal-justice pain as possible on Govey, who was then back inside the Orange County Jail after a wild car chase in 2011 ended in a gun-possession charge. The prosecutor’s beef? According to court records obtained by the Weekly, he believed Govey tried to arrange his murder in 2007.

Normally, when basic, legal ethics apply, prosecutors who may have a reason to hold a personal grudge hand off a case to a colleague to escape a conflict of interest. Mendelson, however, wanted to nail his supposed stalker–and needed Fenstermacher to do it. Posing as a neutral officer of the court, the prosecutor went to the grand jury after Govey’s arrest to win an additional attempted-murder charge–but not involving himself. Instead, Mendelson claimed Govey sought to kill Marcel Irizarry, a longtime Huntington Beach police snitch.

The prosecutor’s moves seemed puzzling. He convinced the panel to indict Govey for ordering the Irizarry hit to benefit PEN1. But Mendelson kept from jurors a crucial fact that didn’t jibe with his version of the truth: On unambiguous orders from gang boss Donald Mazza (a.k.a. Popeye), PEN1 soldiers such as Fenstermacher had been trying to murder Govey for years. Indeed, he has somehow survived at least three ambushes, events the authorities had, at least partially, set the stage for by housing him with PEN1 members–despite Govey’s protests.

Is it possible the prosecutor didn’t know the gang wanted this defendant dead?

No.

During a Jan. 26, 2012, secret meeting inside the jail, Mendelson gave Fenstermacher immunity, and the hoodlum explained that Mazza used a prison “kite”–a tiny, scribbled note–to order Govey’s hit. An attending sheriff’s deputy asked, “Just killed?”

“Killed,” Fenstermacher replied.

“Really?” the deputy responded.

“Yes. Not stabbed, killed.”

Later, during the debriefing, Mendelson tried to get Fenstermacher to change his story to erase Govey as the intended victim of the prison stabbing.

“No, [it was] Govey,” replied Fenstermacher.

The deputy chimed in: “Govey–he wanted him killed.”

Mendelson said, “Oh, oh.”

Still later, the prosecutor returned to the subject.

“Going back to the hit on Govey,” he said, “there was no doubt that was supposed to be?”
Fenstermacher answered, “That [he] was supposed to be killed. Yes, sir.”

After the snitch provided PEN1 history and bragged about stabbing “a lot” of people, Mendelson sought wiggle room to justify charging his target with committing a crime to benefit that gang. “Is [Govey] still in the hat [listed to be killed] to this day?” asked the prosecutor.

Fenstermacher replied, “Yes, sir. Absolutely.”

In fact, the snitch said there had been a PEN1 attempt on Govey’s life in OC jail showers in late 2011–after Mendelson had his target giving PEN1 orders.

Exasperated, the law-enforcement officers tried a final time to bolster their case, asking if orders to kill Govey might have been quietly rescinded.

“Irreversible,” said Fenstermacher.

Though an officer of the court compelled to protect justice and never sanction vigilante violence, Mendelson made clear he doesn’t mind assaults on in-custody defendants he doesn’t like. Fenstermacher mentioned he’d seen court records stating that fellow white supremacist Wayne Marshall faced rape-related charges. If true, Marshall could be assaulted for violating the gang’s personal code. But OCDA officials, including Investigator Kevin Thomas, moved quickly to clear the neo-Nazi on the point.

“The attempted-rape thing,” Mendelson Thomas** said during that January 2012 meeting with the prosecutor present. “That was a momentary flash, a clerical error. I mean, if [Marshall] gets hit, I want it to be for the right reasons.”

[**UPDATE: The first government-produced transcript of the Fenstermacher meeting attributed the controversial statement to Mendelson, who in recent days provided the Weekly an audio recording showing that Thomas uttered the words.]

The prosecutor didn’t call Fenstermacher to testify at the grand jury against Govey, who denies he sought Mendelson’s killing; didn’t tell the panel about the rat’s assertions undermining the case; and then, in collaboration with fellow prosecutor Beth Costello (who took over the case post-indictment), withheld records of the debriefing with Fenstermacher from defense lawyers for years.

But the charade eventually caught up to the prosecutor. During Judge Thomas M. Goethals’ special evidentiary hearings in June on prosecutorial cheating, Assistant Public Defender Scott Sanders called Mendelson to testify about his conduct in the Govey case.

“Now, you can point and nitpick and take stuff out of context,” the prosecutor lectured Sanders. “In 20-20 hindsight, maybe [the Fenstermacher evidence] should have been out there.”

A seething Mendelson added, “And I will make one thing absolutely certain for everybody in this room: It was not part of any conspiracy with the DA and the sheriff’s [department] or anybody else to hide information from the defendants.”

Actually, a different point is more certain about the mess: The OCDA–an organization suffering a series of self-inflicted wounds involving its lack of commitment to provide honest services during prosecutions–doesn’t want further embarrassment and is willing to drop felony cases to accomplish that goal. On Aug. 1, it saved Fenstermacher from his third prison trip, freeing him with a punishment of “time served” in jail for assault with a deadly weapon and street-terrorism charges. The office had also previously dropped pending narcotics charges.

But the biggest, inadvertent admission of OC’s cracked criminal-justice system occurred on Sept. 22. With Govey lawyer Renee Garcia demanding access to still-hidden, potentially exculpatory documents and Goethals becoming impatient with the stalling, Costello abandoned Mendelson’s 2-year-old attempted-murder indictment against Govey. OCDA chief of staff Susan Kang Schroeder says the move wasn’t an admission of misconduct, but rather the result of a judge improperly ordering the surrender of sensitive informant records that could jeopardize the lives of snitches. And the beat goes on. . . .