Orange County’s worst mass killer apparently won’t see the local district attorney in court any longer after an appeals panel agreed with a judge that prosecutors would not ensure a fair penalty phase trial due to loyalty to law enforcement.
A state appellate panel upheld a Superior Court judge’s recusal of the Orange County District Attorney’s Office from prosecuting the penalty trial of Scott Evans Dekraai, the worst mass killer in the county’s history.
The three-justice panel of the Fourth District Court of Appeal backed Orange County Superior Court Judge Thomas Goethals, who found that the DA’s office could not ensure that Dekraai would receive a fair shake in the penalty phase of his trial because of loyalty to the Orange County Sheriff’s Department, which Goethals mainly faulted for issues with the handling of jailhouse informants.
Dekraai pleaded guilty to the murders of eight people in and around a Seal Beach beauty salon five years ago and is awaiting a resolution on Goethals’ ruling for the penalty phase to begin.
The District Attorney’s Office was seeking the death penalty, but if the appellate court ruling is not overturned by a higher court, then it will be up to the California Attorney General’s Office on how to proceed with the continued prosecution of Dekraai. Orange County District Attorney Tony Rackauckas said he would support Attorney General Kamala Harris’ decision on how to proceed.
Rackauckas’ office Tuesday released the following statement:
“Our hearts, of course, first go to the victims and their families in this case, and we feel tremendous pain for their loss. Many of them know that we truly care about them and that we worked tirelessly and vigorously to seek justice in this case.
The OCDA worked hard along with the Seal Beach Police Department and many first responders to make sure this defendant was convicted. As a result of hard work by local law enforcement, Dekraai will never see freedom outside of prison.
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.”
The Attorney General’s Office appealed Goethals’ ruling, arguing that the Sheriff’s Department was to blame for the misconduct related to the handling of informants in the case against Dekraai and others and that local prosecutors did not have a conflict of interest.
The sole issue is whether the trial court erred by recusing the entire OCDA’s office from prosecuting Dekraai’s penalty phase,” the appellate justices’ opinion states. “…we conclude it was well within the court’s discretion to recuse the entire OCDA’s office from prosecuting the penalty phase because the OCDA had a disqualifying conflict of interest.”
The justices noted that the Attorney General’s Office argued that Goethals’ ruling “was a remedy in search of a conflict.” They replied, “Nonsense. The court recused the OCDA only after lengthy evidentiary hearings where it heard a steady stream of evidence regarding improper conduct by the prosecution team. To suggest the trial judge prejudged the case is reckless and grossly unfair. These proceedings were a search for the truth.”
Dekraai’s attorney, Scott Sanders, has argued that Dekraai’s constitutional rights were violated in the way informants were used to glean damning evidence against his client. Prosecutors have denied the claims.
Dekraai went on a rampage Oct. 12, 2011, at the Salon Meritage at 500 Pacific Coast Highway that killed Dekraai’s ex-wife, 48-year-old Michelle Marie Fournier, 47-year-old Christy Wilson, store owner 62-year-old Randy Lee Fannin, and Victoria Ann Buzzo, 54, Lucia Berniece Kondas, 65, Laura Lee Elody, 46, and Michele Dashbach Fast, 47.
After leaving the salon, Dekraai gunned down his last victim, 64-year- old David Caouette, as the victim sat in his Range Rover, which was parked next to the gunman’s vehicle.
Dekraai pleaded guilty May 2, 2014, to the eight murders and an attempted murder involving a ninth victim, 77-year-old Hattie Stretz, who survived.
In response to a motion filed by Sanders in early 2014, Goethals held a series of evidentiary hearings but denied the attorney’s request to dismiss the death penalty and recuse the OCDA’s Office.
However, the matter resurfaced when new evidence arose that the sheriff kept a log of inmate movements — known as TRED records — that hadn’t been disclosed previously. Following a new round of hearings in 2015, Goethals recused Rackauckas’ office from the case.
At issue was whether the informants simply overheard incriminating statements and passed them on to their handlers or if they questioned cellmates about their cases, which is a violation of the law if the defendant has an attorney. Another legal no-no is promising a reward to an informant in exchange for information.
Sanders also argued that sheriff’s deputies would move defendants around the jail to be near informants so they could elicit evidence. In some cases, he said, informants would be placed in disciplinary isolation with another defendant even though the snitch did nothing to merit such punishment.
Mexican Mafia shot caller turned informant, Fernando Perez, befriended Dekraai in Orange County Jail and alerted authorities to conversations they had. Because prosecutors did not wish to use Perez as a witness they instead had Dekraai’s cell wired with a recording device.
While Goethals concluded in 2014 that the conduct did not rise to the level needed to toss the District Attorney’s Office from the case, the surfacing of the TRED records changed his mind. He noted last year that two sheriff’s deputies “either intentionally lied or willfully withheld material evidence” from him.
The appellate panel concurred, writing, “Based on the entire record, we conclude substantial evidence supported the trial court’s conclusion OCDA had an actual conflict because its loyalty to OCSD prevented the OCDA from performing its constitutional and statutory obligations in this case.”
The justices, like Goethals, singled out two deputies, Seth Tunstall and Ben Garcia, for their conflicting statements on the handling of informants.
“Needless to say, there was overwhelming evidence supporting the trial court’s conclusion Garcia and Tunstall intentionally lied or willfully withheld information at the first hearing and they lacked credibility,” the justices wrote.
The justices also had harsh criticism for Dekraai’s prosecutors, Dan Wagner and Scott Simmons.
“Both Wagner and Simmons admitted they were aware Perez had initiated conversations with a represented defendant,” they wrote. “This should have been a red flag for them.”
The Dekraai hearings also raised questions about the use of informants in crackdowns on Mexican Mafia violence in the jails. The justices criticized former Deputy District Attorney Erik Petersen for what they called lapses in his legal duties. Multiple cases Petersen prosecuted had to be revisited with some killers getting plea deals that allowed them to walk free or escape life sentences.
Goethals was right to recuse Rackauckas’ office because case law allows for it when there are “institutional” problems between law enforcement agents, the court concluded.
“Here, institutional interests and structural incentives between the OCDA and OCSD constituted a genuine conflict of interest,” the justices wrote.
“In Orange County, the OCSD is charged with investigating crimes, and the OCDA is charged with prosecuting those crimes. In this case, though, the evidence demonstrates the OCSD, in its secondary capacity as county jailer, created and maintained a CI program whereby it continued to investigate criminal activity in contravention of targeted defendants’ constitutional rights.”
The justices ruled there are “systemic problems” in the use of informants in Orange County.
“The magnitude of the systemic problems cannot be overlooked,” the justices wrote.
—City News Service