Orange County DA Ejected From Capital Murder Case

 Don DeBenedictis

SANTA ANA, Calif. (CN) — Sharply criticizing prosecutors and sheriff’s officers for misusing jailhouse informants and withholding evidence, a California appellate court unanimously agreed last week to kick the Orange County District Attorney’s Office off the worst mass-murder case in county history.

It’s a striking development in the county’s 3½-year-old jailhouse snitch scandal, which has forced sentence reductions or new plea bargains in half a dozen formerly closed serious cases, including gang murders. It has also led to three investigations and a new state law.

The Nov. 22 ruling in The People v. Scott Evans DeKraai means District Attorney Tony Rackauckas’s office cannot handle the sentencing phase for Scott Dekraai, who could receive the death penalty or life in prison for killing eight people, including his ex-wife, in or near a Seal Beach beauty salon in 2011.

“The record before us demonstrates that from the outset, the OCDA [district attorney] failed in its duty as the primary county prosecutor to supervise its prosecution team … and ensure its prosecutors and its law enforcement team complied with its constitutional and statutory obligations,” the three-judge panel for the Fourth Appellate District, Division Three wrote.

Attorney General, now Senator-elect, Kamala Harris, could appeal to the state supreme court. Otherwise, her office will take over the penalty phase of Dekraai’s case.

Dekraai pleaded guilty in 2014.

Before he did, Assistant Public Defender Scott Sanders had begun what would turn out to be six months of hearings before Orange County Superior Court Judge Thomas M. Goethals into the use of select jail inmates to gather information about suspects in high-profile murder and gang cases.

Sanders claimed that specially assigned sheriff’s officers in the jail placed informants in cells near targeted suspects, whom they would illegally question without lawyers present. Sanders said prosecutors did not inform defense attorneys about the informants, including whether the informants would receive any benefits for their testimony.

By the end of two sets of hearings, Goethals discovered that sheriff’s personnel had kept secret a database listing the placement of informants and targeted defendants. He found that at least two sheriff’s deputies lied on the stand about the informants and at least two prosecutors were woefully unclear about their constitutional duty to turn over exculpatory evidence to defense counsel.

Goethals ruled that the entire district attorney’s office had to be recused from the Dekraai case because its loyalty to the sheriff’s office created a continuing conflict of interest with its duty as prosecutor.

With the district attorney’s office removed, the attorney general’s office appealed. In a unanimous opinion by Presiding Justice Kathleen O’Leary last week, the appeals court agreed with Goethals — and went further.

“The magnitude of the systemic problems cannot be overlooked,” O’Leary wrote for the unanimous panel.

The district attorney’s office’s participation in the informant program created a “divided loyalty”: to protect the sheriff’s department “at the expense of Dekraai’s constitutional and statutory rights.”

Calling the prosecutors’ office “complicit” in the problem, she asked: “How could the trial court expect the OCDA to properly supervise OCSD and fairly prosecute the penalty phase when one of the DAs prosecuting Dekraai failed to acknowledge any wrongdoing on the prosecution team’s part in the Dekraai case?”

The result provides “substantial evidence the OCDA’s conflict of interest was so grave it was unlikely Dekraai would receive a fair penalty hearing.”

Rackauckas said in a statement after the ruling: “Our hearts, of course, first go to the victims and their families in this case, and we feel tremendous pain for their loss.”

He said it would be up to the attorney general’s office to decide whether to appeal, seek the death penalty or agree to a sentence of life without parole.

“No matter who handles this case, the OCDA believes that these murders were callous, cruel, and committed with a malignant heart. The defendant deserves the ultimate punishment of death,” Rackauckas said.

Defense attorney Sanders said in a statement that “the opinion marks an important moment for the criminal justice system by recognizing the enormous problems that have come to light and what the justices appropriately describe as a judge’s search for truth.”

The court’s 53-page opinion arrived the same day that Orange County officials disclosed a three-month-old investigation by the county grand jury into the jailhouse informant scandal.

The Board of Supervisors on Nov. 22 approved a $400,000 increase in the grand jury’s budget to hire two prominent attorneys as special investigators. Officials said they could not recall the grand jury hiring outside counsel before.

The attorney general’s office selected former U.S. Attorney and current Los Angeles Ethics Commissioner Andrea Ordin and Michael Strumwasser and his law firm Strumwasser & Woocher, which regularly serves as outside counsel for state agencies.

The grand jury probe follows ones by Rackauckas and by Harris, which is continuing.

The snitch scandal also contributed to a decision by the State Bar of California to propose a rule making it unethical for prosecutors to withhold evidence defendants could use to exonerate themselves.

And in October, Gov. Jerry Brown signed a law making it a felony for California prosecutors to alter or intentionally hide such exculpatory evidence.