SANTA ANA, Calif. (CN) — Nearly 5½ years after Scott E. DeKraai massacred eight people at an Orange County beauty parlor and four years after DeKraai’s public defender began exposing the jailhouse informant scandal that rocked the county’s criminal justice system, the judge in the case says important information is still being kept from him.
During a hearing Tuesday on possible sanctions for alleged discovery abuse, Superior Court Judge Thomas Goethals criticized the Orange County Sheriff’s Department for not turning over documents that he demanded years ago, and suggested he may order Sheriff Sandra Hutchens into court to explain the delay.
“I am underwhelmed by the level of diligence in complying with my discovery order after several years,” Goethals said after learning from a witness that the Sheriff’s Department has thousands of potentially relevant paper files it has not gone through.
Goethals in April threatened to do the “almost unthinkable” by denying the possibility of the death penalty against DeKraai as a sanction for what he called “ongoing significant failures of discovery compliance” by the Sheriff’s Department.
DeKraai shot his ex-wife and seven others to death in October 2011 in Orange County’s worst mass murder. He pleaded guilty to the crimes in 2014.
His attorney, Assistant Public Defender Scott L. Sanders, spotted records showing that the same jail inmate had talked with DeKraai and another of his clients. That led Sanders to discover material showing that the District Attorney’s Office and Sheriff’s Department for many years had been using jailhouse informants to question suspects in high-profile and gang-related crimes, in violation of the defendants’ constitutional rights.
In March 2015, Goethals barred the office of District Attorney Tony Rackauckas from prosecuting DeKraai, finding it had a conflict of interest between its commitment to the informant system and its constitutional duties. He ordered the state attorney general’s office to take over the case.
The state Court of Appeal agreed with Goethals last November.
The U.S. Department of Justice soon announced it was investigating Orange County’s use of jailhouse informants, joining other investigations by the county grand jury and the state attorney general already underway. Rackauckas set up his own independent panel to study and report on the scandal and his office’s procedures.
Tuesday’s hearing focused on Sanders’ efforts to obtain Sheriff’s Department records involving the many inmate informants it used over the years.
Sheriff’s deputies have described a “special handling unit” in the department that monitored informants and moved them from cell to cell as needed to be near targeted suspects. It tracked them in a “special handling log,” but there is a 5½-month gap in the log records that Goethals wants explained.
He also wants to know why the log was abandoned and whether, as Sanders has alleged, the department sought a change in county policy to allow it to destroy informant documents.
Goethals said he asked the sheriff for material on informants four years ago.
“I don’t think it’s all been produced,” the judge said. “What is the likelihood of full, 100 percent compliance with all my discovery orders? We’ll see.”
The only witness who testified Tuesday did not ameliorate the judge’s pessimism. Lieutenant Andrew Stephens, a 24-year sheriff’s veteran, disclosed, apparently for the first time, that the department has 68 banker’s boxes worth of files compiled by the special handling unit on inmates it monitored as far back as the early 1980s.
Stephens took custody of the files — about 100 per banker’s box — in late 2016 when he was assigned to oversee the department’s new “custody intelligence unit,” which partially replaced the special handling unit.
He said his unit is scanning the files’ documents for computer storage in response to a request by the state attorney general’s office. But in answer to a question from Goethals, Stephens said he does not believe the documents have been looked through carefully or catalogued.
He said his unit could respond to a discovery request about a named inmate from the files but could not search the files for a more generic discovery request.
Goethals did not like that.
“I find it very interesting that several years after I made that broad discovery order, there are 68 boxes of material still sitting over at [a county jail] generated over 30 years that nobody has looked through,” the judge said. “I am underwhelmed at this moment by the diligence of the search, based on what this witness said.”
As for bringing Sheriff Hutchens into court, Goethals said, he would like to think she “would welcome the opportunity … to testify so she can explain her position to the community here in open court. I hope I’m not being naïve when I say that.”
D. Kevin Dunn, a deputy county counsel observing the hearing for the sheriff, told the judge that “discussions are ongoing right now” about whether Hutchens should testify.
The hearing continues on Thursday and is expected to last a month or more.