The Orange County District Attorney’s Office Monday released an audit of the prosecution of Scott Dekraai, the worst mass killer in the county’s history, that concluded the two prosecutors assigned to the case “committed malpractice due to intentional negligence” in the use of a confidential informant.
The audit does not name former prosecutors Dan Wagner and Scott Simmons, who retired in December, but makes it clear they are the ones being criticized throughout the report.
Simmons and Wagner declined comment.
The report recommended discipline of Wagner and Simmons, but noted that is no longer possible because they retired. “Notwithstanding, this report is available to state compliance and law enforcement agencies for their review.”
The report also found that there was “insufficient evidence to determine prosecutorial misconduct or malpractice in the five other cases where confidential informants were also utilized” and that the District Attorney’s Office “has implemented significant reforms to address the deficiencies involving the use of confidential informants.”
The report is the product of a 15-month internal investigation ordered by District Attorney Todd Spitzer in April 2019 to get to the bottom of what has become known as the jailhouse informant scandal.
Patrick Dixon, special counsel to Spitzer and a prosecutor with 37 years of experience with the Los Angeles County District Attorney’s Office, wrote the report with Steve Danley, a consultant who previously was a chief human resources officer and performance auditor for Orange County.
The authors found that prosecutors were so fearful Dekraai would try a defense of insanity and avoid the death penalty that they improperly used a confidential informant to gain incriminating comments from the defendant while the two were jailed together.
Danley and Dixon concluded that the prosecutors were spooked by what happened with Edward Charles Allaway, who had committed the worst mass killing prior to Dekraai in 1976 and avoided the death penalty with an insanity defense.
Sources say Dekraai bragged about the killings to the confidential informant, saying he felt like he was “in the matrix,” a reference to the film, when he went on his killing spree targeting his ex-wife and friends at the Salon Meritage in Seal Beach following a hearing on child custody that went against him in family law court. Eight people died, and a ninth person survived the Oct. 12, 2011, attack.
The informant scandal ultimately led then-Orange County Superior Court Judge Thomas Goethals to remove the death penalty as a punishment for Dekraai, who pleaded guilty to the salon massacre and was sentenced to life in prison without the possibility of parole.
Spitzer attended the Dec. 5 retirement party for Wagner and Simmons and promoted Wagner to head the North Justice Center in Fullerton after he took office.
A main issue in Dekraai’s prosecution was whether confidential informant Fernando Perez was directed to question Dekraai as a government operative, which would be against the law because a defendant cannot be questioned if they are already represented by defense counsel. Perez claimed in testimony he overheard Dekraai’s comments regarding the murders, which would have been OK.
Goethals, now an appellate justice, ordered three rounds of evidentiary hearings as more evidence surfaced about the confidential informant program.
A key issue in the first round of evidentiary hearings was whether Perez was intentionally placed in the cell next to Dekraai, which was denied by sheriff’s deputies.
However, evidence later surfaced that records were found that tracked the movements of defendants, which had been denied by deputies in the first round of evidentiary hearings.
The scandal led to plea deals in other murder cases that allowed killers to walk free, including one who avoided a life sentence. Spitzer unseated then-District Attorney Tony Rackauckas in 2018 in part because he criticized Rackauckas’ handling of the Dekraai prosecution.
Dekraai’s attorney, Assistant Public Defender Scott Sanders, panned the report.
“This was not the report that was needed for those most affected by years of informant-related misconduct — defendants,” Sanders said.
“It identifies the misconduct in the Dekraai case by prosecutors no longer employed by the office, including Dan Wagner — misconduct already found to have occurred years ago by trial and appellate courts. No other current or past prosecutors or prosecutions are called out.”
Sanders added that Spitzer has previously said the U.S. Department of Justice has focused on 100 jailhouse informant scandals, but “more than a year and a half into the current administration, no discovery has been turned over in those cases and the prosecution continues to block the disclosure of misconduct by members of the sheriff’s department who operated the illegal informant program.
“So are those defendants whose rights were violated by an illegal informant program in any better position than they were when Mr. Rackauckas led the office? The answer is no, and this report certainly doesn’t offer anything to suggest otherwise,” Sanders said.
Paul Wilson, whose 47-year-old wife, Christy, was killed in the Seal Beach salon, also criticized the report. Wilson campaigned for Spitzer, but has since become a critic of him.
“We knew all this before (Wagner and Simmons) left the office,” Wilson told City News Service. “But they’ve already (flown) the coop. It’s just the same old stuff. He says what we already knew about Wagner and Simmons, but doesn’t hold anyone accountable who is still in the office who have done stuff wrong. It is absolutely ridiculous.”
Wilson said he had supported Spitzer because he promised reform.
“This was a Todd Spitzer who rolled out a red carpet to me and told me all the things I wanted to hear,” Wilson said.
“I’ve been dealing with that office since 2011. That office is no different under Spitzer than it was under Rackauckas. It’s the same office, the same corruption, the same ship without a rudder with a different name on the door.”