Scott Evans Dekraai. Photo courtesy of the OCSD
Scott Evans Dekraai. Photo courtesy of the OCSD

The state Attorney General’s Office will apparently be prosecuting the death penalty phase of the trial of the worst mass killer in Orange County history, meaning the Orange County district attorney’s office will be on the sidelines.

The AG’s office announced Tuesday it will not seek an appeal to the California Supreme Court of a ruling removing the Orange County District Attorney’s Office from further prosecution of Scott Evans Dekraai, the worst mass killer in the county’s history.

A panel of Fourth District Court of Appeal justices in November affirmed a lower-court judge’s recusal of the District Attorney’s Office from prosecuting Dekraai, who has pleaded guilty for the Seal Beach beauty salon massacre that killed eight and nearly nine victims, in the death penalty phase of the defendant’s trial.

Kristin Ford, a spokeswoman for the Attorney General’s Office, confirmed there would be no appeal to the state’s high court, but did not say whether a decision was made to seek the death penalty for Dekraai or let him be automatically sentenced to life in prison without the possibility of parole.

The three-justice panel of the Fourth District Court of Appeal backed Orange County Superior Court Judge Thomas Goethals, who found that the District Attorney’s Office could not ensure that Dekraai received 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.

The state 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.”

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.

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 so-called TRED records on inmate movements changed his mind. He noted in his ruling 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.

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 New Service

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