My View: Why is California AG Seeking DP in Tainted Case?

It is disappointing that the California AG, a purported opponent of capital punishment, would continue the prosecution of the case of Scott DeKraai – a case that is so tainted it may bring down a DA and perhaps far more.

Back in 2014, Orange County Assistant Public Defender Scott Sanders came to Davis to speak on prosecutorial misconduct.  At the time, the county and the case of Scott DeKraai was not quite national news, but what Mr. Sanders found would rock the nation – a scandal that would bring Orange County to its knees.

During the penalty phase of trial, in which Mr. DeKraai pleaded guilty to murdering eight people and attempting to murder a ninth person at a Seal Beach hair salon in 2011, we would learn of a jail informant program in Orange County – where laws and rights were blatantly violated as jail officials would move informants around in order to gather intel on notorious defendants, to use the information against them in a court of law.

The 4^th District Appellate Court noted that deputy sheriffs “placed CIs [confidential informants] near represented defendants, including Dekraai, to obtain statements, and prosecutors were aware of the CI program and either explicitly or implicitly promised CIs they would receive a benefit. There was also evidence that after DAs met with a CI and learned the CI questioned Dekraai, DAs obtained permission from OCSD to place a recording device in Dekraai’s cell to obtain additional statements. OCDA prosecutors and investigators also testified their discovery practices concerning the CI program were deficient in this case and others.”

The issues are still ruminating in court, but Judge Thomas Goethals’ recused the Orange County District Attorney’s Office from the prosecution of the DeKraai case, and then appellate courts ruled in favor of the judge’s ruling.

The AG put blame on the sheriff’s department for the misconduct, and argued that the DA did not have a conflict of interest.

The appellate court concluded that “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 three-judge panel described the argument made by the AG’s office: “The trial court’s order recusing the OCDA from prosecuting Dekraai’s penalty phase trial was a remedy in search of a conflict,” and called that, “Nonsense” (emphasis in the original).

However, the trial court denied the motion to dismiss the death penalty. “The court reasoned that although the prosecution team committed significant, negligent misconduct in this case as evidenced by the OCDA’s constitutional discovery violations and interference with Dekraai’s constitutional right to counsel, evidence concerning prosecutorial misconduct in other cases was not relevant in this case.”

The judge here found the misconduct to be “negligent and not malicious.”  More importantly, “The court concluded that when considered in its totality, the prosecutorial misconduct did not constitute outrageous government conduct requiring dismissal of the special circumstance Dekraai already admitted or the death penalty.”

Despite the court’s finding, “it concluded a significant sanction was appropriate and prohibited prosecutors from using Dekraai’s custodial statements during the penalty trial.”

How bad is this case?

“The magnitude of the systemic problems cannot be overlooked,” the court continued. “Wagner, a 20-year veteran of the OCDA and supervisor of the homicide unit, admitted his legal reasoning on a prosecutor’s fundamental ethical obligations under Massiah was flawed. Simmons, a 24-year veteran of the office, explained his understanding of his ethical obligation was ‘evolving.’”

The court concluded, “This record does not support a finding there was a reasonable basis for the trial court to have confidence the OCDA will prevent future misconduct from occurring in this case.”

In February, Judge Goethals rebuked Orange County Sheriff Sandra Hutchens as she continued to deny wrongdoing.  Judge Goethals took the step of reading a series of internal OCSD memos and then recited remarks the sheriff made to local news stations denying the existence of the informant program.

“The deputies in the jail are not conducting investigations … we don’t have our folks working informants,” Judge Goethals said, quoting Sheriff Hutchens repeatedly after each memo that clearly offered evidence to refute her claim.

“The train has left the station on this, folks,” Judge Goethals said in February. “The debate is over.”

Despite this misconduct, the trial court denied the motion to dismiss the death penalty. “The court reasoned that although the prosecution team committed significant, negligent misconduct in this case as evidenced by the OCDA’s constitutional discovery violations and interference with Dekraai’s constitutional right to counsel, evidence concerning prosecutorial misconduct in other cases was not relevant in this case.”

When Scott Sanders came to Davis a few years ago to speak on prosecutorial misconduct, he noted that the family of the victims are angry that this case has dragged out – and who can blame them?

But AG Xavier Becerra could have put an end to this fiasco by simply assigning Mr. Dekraai life without parole – the most likely effective punishment anyway.

Such egregious conduct by prosecutors and the authorities needs to have clear consequences and, by setting this as life without parole, the family of the victims would have their closure.

But this week, disappointingly, AG Becerra, who is against the death penalty, continued seeking execution.

“This tragic event has caused so much harm to far too many families,” said Attorney General Becerra. “After weighing the evidence, considering the law and the responsibilities of my office, I have concluded that the appropriate course of action is to seek the death penalty in this case.”

That is unfortunate because, while the incident was tragic, this case has become much bigger than the crime – horrific as it may be – of one man.

This is a systemic problem and, unfortunately now, two California AGs – Kamala Harris and now Mr. Becerra – have refused to come down on the misconduct in Orange County.  Ms. Harris nonsensically fought Judge Goethal’s recusal of the Orange County DA’s office and now Mr. Becerra is continuing to seek the death penalty.

—David M. Greenwald reporting