Several legal experts say a secretly recorded conversation by a Santa Ana Police detective of a suspect in the deadly nightclub beating of a 23-year-old woman would be difficult to introduce as evidence during trial.
Santa Ana Police Det. Patricia Navarro testified Tuesday that she spent an hour with suspect Vanesa Tapia Zavala inside a jail holding cell.
Navarro had testified Monday that she secretly recorded the conversation after Zavala had refused to talk with police and asked for a lawyer.
Zavala and Candace Marie Brito are accused of killing Kim Pham during a Jan. 18 altercation that left the young woman comotose, and dead just days later. Zavala, 25, and Brito, 27, have pleaded not guilty to murder charges.
Of the secret taping, Dmitry Gorin, a former prosecutor and now a prominent defense attorney, said that "questioning cannot continue after the suspect invokes their rights to legal counsel."
The law, he said, allows an officer or detective to silently listen to a conversation or even eavesdrop but not interact by questioning a suspect who has invoked his or her right to an attorney.
Veteran Orange County criminal defense attorney Paul Wallin said he was shocked that a detective had gone undercover to record a conversation with a woman who had invoked her right to remain silent.
"My take is this conduct is outrageous," he said.
Many police departments secretly record inmates in their jails, and prosecutors sometimes use jailhouse informants as witnesses to describe conversations or even confessions they claim to have overheard.
But Gorin said it appears Santa Ana police went a step further by getting a detective to pose as a fellow inmate in an effort to get Zavala to make incriminating statements.
On Tuesday, defense attorney Kenneth Reed accused police Det. Leo Rodriguez of siding with Pham and failing to photograph Zavala when she told him that she had been injured in the fight.
Rodriguez took Zavala -- still in her pajamas -- in for questioning two days after going to her Santa Ana home at 1 a.m.
Cellphone video shown in court shows Pham throwing what investigators said was the first punch of the fight. Pham is also seen straddling and hitting a woman on the ground.
Reed identified that person as Amelia Avila, a woman whose photograph was distributed by police as a person of interest in the case.
Toward the end of the video, another woman – identified by the detective as Zavala – is seen kicking at the ground, in the direction of Pham
Reed stopped one of the video clips and pointed to a man shown pulling Avila by her legs. He said that Zavala kicked Pham in self-defense, in part, because she saw her friend being dragged away.
"All these things are relevant," Reed said. "If she's watching her girlfriend being pulled by some guy by her legs while this other woman is beating on her, that is the essence of what this is about."