San Joaquin County investigators are trying to salvage what case they once had against Loren Herzog, who was convicted three years ago of murdering Clements resident Cyndi Vanderheiden and two other people.
Herzog's conviction was overturned by a 6th Appellate District panel of three judges who ruled that Herzog was improperly coerced by investigators into admitting to the 1984 murder of Paul Cavanaugh, 31, of Stockton and Howard King III, 35, of Lathrop, court papers say.
Herzog, 38, a Linden-area resident, was convicted on Oct. 23, 2001, of murdering Vanderheiden, 25, in 1998 along with Cavanaugh, 31 and King in 1984. Herzog was also convicted of being an accessory in the death of Henry Howell, 45, of Santa Clara.
Herzog was sentenced to 78 years in state prison on Dec. 10, 2001. He is in custody at Calipatria State Prison, about 150 miles east of San Diego. Herzog was stabbed by an inmate two years ago at High Desert State Prison in Susanville, but he recovered after undergoing surgery, according to prison records.
On Aug. 18, a panel consisting of Justices Nathan Mihara, Patricia Bamattre-Manoukian and Richard McAdams threw out the conviction, stating several instances where Herzog was "coerced."
"The actions of the deputies and officers in this case necessitate that this matter be retried with the attendant burdens that a retrial places on the court system, the witnesses and the families of the victims," according to the unanimous court opinion written by Mihara.
"We do not reach this result lightly," the opinion says. "Constitutional rights must be protected even where the rights in question are those of a person suspected in a killing."
Kim Vanderheiden, Cyndi Vanderheiden's sister, said she is concerned for her family's safety that Herzog may someday be released from prison. Kim Vanderheiden has three children.
John Vanderheiden, Cyndi Vanderheiden's father, doesn't agree with the ruling.
"I think it is unjust," Vanderheiden said in a phone interview Friday. "I don't see how they can overturn three murder convictions."
Vanderheiden said he was kept in the dark until after the ruling was issued.
"I feel (someone) should have let me know," he said.
Vanderheiden said he was notified when Deputy District Attorney Thomas Testa, who prosecuted the Herzog and Shermantine cases, phoned him last week. Testa didn't know about the hearing either until he got an e-mail after the appellate court decision was rendered, Vanderheiden said.
"I suspect those busy appellate court judges did not take the time to watch the 14-odd hours of videotaped interviews," said Testa.
Instead, the justices relied on the bare transcripts, a significant difference because Herzog continually joked and wisecracked with deputies while being questioned, Testa said.
Testa said he hopes to refile charges against Herzog, but he needs to review the court decision and and re-read the transcripts.
Deputy District Attorney Lester Fleming was unavailable for comment Friday on the possibly of filing new charges against Herzog and did not return numerous calls on Friday.
The San Joaquin County Sheriff's Department was also surprised by the ruling. Spokeswoman Nellie Stone said her department wasn't informed about any hearing until the county District Attorney's Office informed them last week.
Herzog's long-time friend, Wesley Shermantine, 38, was also convicted in Vanderheiden's death, but his case was not up for review last week. Shermantine was sentenced to death after being convicted in the deaths of Cyndi Vanderheiden, King, Cavanaugh and Chevelle "Chevy" Wheeler, 16 of Stockton. Herzog was not charged in Wheeler's murder.
Herzog and Shermantine were tried separately, with both trials being held in Santa Clara County Superior Court. Both defendants were awarded a change of venue from San Joaquin County due to pre-trial publicity.
Cyndi Vanderheiden's body has never been found. She was last seen in the early morning hours of Nov. 14, 1998 at the Linden Inn, where she had been with Herzog and Shermantine, according to the sheriff's report.
Cyndi Vanderheiden's car was found later that morning at Glenview Cemetery on Mackville Road in Clements.
"We're kind of devastated," John Vanderheiden said about last week's decision to throw out Herzog's conviction. "He's already been tried once and found guilty."
In issuing its ruling the 6th District Court of Appeal, the justices indicated several reasons for reversing the convictions.
Interrogations made on March 21 and 22, 1999 caused Herzog to make statements that were "involuntary and therefore inadmissible."
"He expressed great trust in the officers and deputies and appeared to mistakenly believe that (investigators) were looking out for his best interests," the justices said.
An interrogation on March 17, 1999 lasted nearly four hours and was followed by a 90-minute ride with deputies and a trip to a hospital to extract hair and blood samples, according to the justices. He was then arrested and booked into county jail at 3:22 a.m. on March 18, 1999.
"After these many hours of interrogation and transport, (Herzog) was exhausted," the opinion says. "He was allowed to sleep, but was not fed before the next afternoon's resumption of interrogation."
Herzog was also improperly advised of his rights when Sheriff's Deputy Joe Herrera said that while Herzog had the right to remain silent, but it was the last chance for him to talk to Herrera or Deputy Antonio Cruz, the justices noted.
"This is the last opportunity," the opinion quotes Herrera as saying. "If you are not guilty, you are going to have to be able to talk to me."
Herrera was out Friday and unavailable for comment, Stone said. In any case, the Sheriff's Department couldn't comment on the ruling because no one there had read the 62-page appeals court opinion, Stone said.
Deputy Deborah Scheffel, who interviewed Herzog during the initial investigation, didn't return calls Friday.
Interrogations by sheriff's and Stockton police investigators on March 17, 18, 19 and 21 were also excessively long, the justices said. Additionally, Herzog's right to a quick arraignment was violated because it took more than four days for him to be arraigned, the justices added.