Photo by John Schreiber.
Photo by John Schreiber.

A judge on Thursday recused the Orange County District Attorney’s Office from the case of a man who potentially faces the death penalty for committing the worst mass killing in the county’s history, on grounds that his rights were violated by the use of jailhouse snitches.

But Orange County Superior Court Judge Thomas Goethals stayed his ruling — under which the state Attorney General’s Office would take over the penalty phase of the case — until March 20 to give the D.A.’s office a chance to appeal.

Goethals laid much of the blame for the violation of Scott Evans Dekraai’s due process rights at the feet of Orange County sheriff’s investigators in the Special Handling Unit, but said he does not believe prosecutors can be trusted to police their actions in this case.

The judge accused some of the investigators of lying in their testimony.

“As the chief law enforcement officer in this county, the district attorney is responsible for the actions of his agents,” Goethals wrote in his ruling. “In this case the evidence demonstrates that some of those agents have habitually ignored the law over and extended period of time to the detriment of this defendant … The district attorney has a conflict of interest in this case, which has actually deprived this defendant of due process in the past.”

The judge went on to say that Dekraai, now 45, cannot get a fair penalty phase trial as a result, if the district attorney is handling it.

“This court does not order the district attorney’s recusal as a punitive measure,” Goethals said, but to ensure Dekraai’s right to a fair judicial process.

“Certain aspects of the district attorney’s performance in this case might be described as a comedy of errors, but for the fact that it has been so sadly deficient,” Goethals said. “There is nothing funny about that. In fact, what makes the situation here especially disconcerting is that this performance has deprived this defendant, the people of Orange County, and especially the community of Seal Beach, of the timely resolution of this case which all parties deserved. And which should have, could have, and likely would have been achieved but for this performance. Justice delayed has resulted in the denial of justice to all concerned here.”

Goethals further ruled that prosecutors, during the penalty phase, will be restricted to telling jurors about the crime, statements the defendant made prior to his booking and how the killings affected the victims.

Goethals declined to take the death penalty off the table. Dekraai’s only other potential sentence is life in prison without the possibility of parole.

Goethals previously ruled last August that prosecutors cannot use damning statements Dekraai made to a jailhouse informant during the penalty phase.

Assistant District Attorney Dan Wagner said it hasn’t been decided whether to appeal the ruling. He said prosecutors would “absolutely” consider the feelings of some victims’ family members who prefer that the Attorney General take over the case.

Deputy Attorney General Theodore Cropley said his office needed time to consider whether to appeal.

Dekraai will return to court March 20 for a hearing to discuss the status of his case and whether any appeals of the judge’s latest ruling have been filed by that date.

Dekraai’s attorney, Scott Sanders of the Orange County Public Defender’s Office, alleged his client cannot get a fair penalty hearing. Prosecutors countered that even if the defense allegations were true, the remedies being sought are not allowed.

At issue is whether some investigators lied about how government informant Fernando Perez was placed in a cell next to Dekraai, where Perez befriended him and heard him “brag” about the Oct. 12, 2011, massacre of his ex-wife and seven others in and around Salon Meritage in Seal Beach.

Last August, Goethals ruled that serious misconduct occurred in the handling of jailhouse informants in the case, but he chalked it up more to negligence than a conspiracy.

After that ruling, however, Sanders became aware of jail records — known as TRED records — that he argued contradicts evidence in the first round of evidentiary hearings that indicated a nurse put Perez next to Dekraai’s cell, not sheriff’s officials seeking to gather more damning evidence against the defendant. That could have been a violation of his constitutional rights since he was represented by an attorney.

In today’s ruling, Goethals called out two deputies, Seth Tunstall and Ben Garcia, accusing both of dishonest testimony.

“Tunstall and Garcia at least generally understood when they were first called to testify on the current motion what the issues to be discussed would be, and that these issues involved inmate movements within the jail,” Goethals wrote. “Neither mentioned the existence or content of the TRED records at any time during their initial testimony on the current motions.”

The judge went on to say “this is not the first time during this protracted hearing that Deputy Tunstall’s testimony lacked credibility. This court did not believe the earlier testimony of either Tunstall or Deputy District Attorney Erik Petersen when they unsuccessfully tried to shift responsibility for a serious discovery breach in another case to the shoulders of a former federal prosecutor.”

Instead, Goethals wrote, he relied on testimony from two other deputies who contradicted Tunstall and Garcia.

Orange County Sheriff Sandra Hutchens issued a statement, saying, “Though we are disappointed, we take very seriously the opinion offered by Judge Goethals this morning that our deputies intentionally lied or willfully withheld material evidence from the court.”

“As our department core values state, ‘Integrity without compromise,’ we are gravely concerned and take any allegation or suggestion of untruthfulness very seriously,” she said. “We will use the information brought to light during the court proceedings to serve as a roadmap for our ongoing internal investigation. It would be premature to take any immediate action; we will defer to the ongoing criminal proceedings until they conclude.”

Tom Dominguez, president of the union that represents sheriff’s deputies, said it would “stand firmly” behind the deputies involved in the case.

“The deputies in this case were not trained investigators, let alone homicide investigators,” he said. “They are not educated in discovery requirements or investigative and informant protocols. The deputies involved relied on the prosecutors’ legal expertise.”

Dominguez said the union agrees with Hutchens’ earlier statements that any violations could be chalked up to poor training. Dominguez backed up Tunstall’s and Garcia’s claims that the jail records were confidential and not to be publicly disclosed.

“The deputies were not trained to deal with these conflicting obligations,” Dominguez said. “We believe that a thorough appellate review of the record and of the legal requirements will make it clear that the deputies testified to the best of their ability.”

The union also maintains that “the broader issues” raised by the motions involve “document management, storage and coordination with prosecutors responsible for discovery. There is no indication that any materials were intentionally left out of the record-keeping system.”

Sanders alleged that sheriff’s officials would place some informants into disciplinary isolation — even though they had done nothing to merit any punishment — so they could be with other inmates and seek more evidence against them. He also alleged that some informants spur their targets to confess or face the wrath of the Mexican Mafia.

— City News Service

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