Orange County Deputy Public Defender Scott Sanders acknowledges his client, Scott Dekraai, is guilty of being the shooter in a 2011 Seal Beach salon massacre. However, he alleges that the Orange County District Attorney’s office, and Sheriff’s Department, cheated in hopes of securing the death penalty for his client.
Regardless, in August Judge Thomas Goethals ruled that, while the prosecutors committed serious misconduct in their investigation, their actions were “negligent rather than malicious.” That means that the defendant will still face the death penalty when the penalty portion of the trial begins.
Judge Goethals ruled misconduct in failing to turn over exculpatory evidence. He wrote, “The court further finds that the misconduct was the product of woefully inadequate legal training, along with a lack of professional energy and strategic imagination.”
Scott Sanders, who will be the keynote speaker next week in Davis at the Vanguard’s Dinner and Awards Ceremony that focuses on Prosecutorial Misconduct, told the Vanguard on Monday that he was disappointed in some aspects of Judge Goethals’ ruling.
Nevertheless, Mr. Sanders said, “He also showed a level of courage that we haven’t seen in this county (and) probably see in most counties around the state. He allowed us to really explore these issues.” He added, “He really should be commended for what he did.”
Scott Sanders told the Vanguard he defended two capital murder cases where the same informant, Fernando Perez, had gathered information. What they discovered was that they were moving inmates around in order get statements incriminating to them on their cases.
In this case, they actually put Mr. Sanders’ client in isolation with the informant and then failed to disclose to the defense the full report.
“We wanted to know how on earth the biggest mass murderer in history in Orange County had found himself within a few days of his arrest with one of the most prolific informants in the county,” Mr. Sanders said. The evidence, he said, “was pretty compelling that these movements were taking place within the jail to put these folks in close proximity with two particular targets and that wasn’t revealed to the defendants.”
He said significant evidence in three cases was held back in what he calls “a coincidental contact scheme.” He said, “What we learned over time was this was just a scam. They were moving them to get (the defendants to talk to the informant).”
This is “relevant just to the credibility of the informant,” he noted. In other cases, they found recordings that were not turned over to the defense and, in those cases, he said it was obvious that “the recordings were not turned over because they were terribly damaging to their cases.”
Different information was recorded, saying that “his memory could be improved or worsened depending on the consideration (he was offered).” Mr. Sanders added, “He was talking about wanting a reward.” He said, “Any defense council that had (the informant) on the stand was entitled to know about that and cross-exam.”
A recent case in Orange County with defendant Isaac Palacios was a case that could have earned the death penalty, but ended up with the judge dismissing a murder charge due to evidence that DA Tony Rackauckas’ prosecutors used jailhouse informants to improperly garner information and then withheld that evidence – that legally needed to be disclosed.
The result of that case was the judge dismissed a murder charge with penalty enhancements, and the defendant then took a guilty plea on the second murder charge and was amazingly granted probation.
“It’s bad outcomes,” Mr. Sanders stated. “It just speaks to the willingness to cross lines to win.”
The problem, according to Mr. Sanders, both in Orange County and throughout the state and really throughout the nation, is that “prosecutors just don’t live in fear of engaging in prosecutorial misconduct. And in a place like Orange County, the win has become the greatest value,” he said, noting “it’s probably been that way for decades.”
“Unless there is a fear that is created by an outside force that there are ramifications when you commit misconduct, it’s going to happen,” he stated. In his case, he said, “I think all we did is touch the surface of what’s been going on here.”
We have been talking about issues involving jailhouse informants, but he finds it difficult to believe that the misconduct is “limited somehow to discovery problems with informants. These are deeply rooted problems where due process and Brady is very much secondary to the first goal, winning.”
While he continued to praise Judge Goethals here, he said the biggest problem with people speaking out is that “people don’t like to do things which they think will damage their careers, damage offices, damage sometimes their own chances of being on the bench and staying on the bench.”
Orange County, he said, is a county that depends on the support of the District Attorney’s office. “It’s very hard to be a judge without that support.” Many of the judges are former prosecutors.
While the judge ruled against them, he does not believe that they are done here. He believes another outcome is still possible. His goal remains to have the death penalty eliminated as a possibility. Mr. Sanders has thus far failed to block the death penalty, which would occur when the penalty phase trial happens, potentially next year.
“That’s really the goal,” he said. “We think that the level of misconduct is so great that it is not reasonable to have faith that this prosecution will turn over materials.”
Mr. Sanders said that the statements used by the informant have been excluded for all purposes. One of the remaining questions is whether the defense will be able to use this information during the penalty phase to impeach the prosecution.
“I think what’s taken place is relevant to the penalty phase,” he said. “I think when the prosecutor’s office withholds evidence then that conduct is relevant to when the jury’s receiving all of the evidence to which their entitled.”
Prosecutorial misconduct, Scott Sanders stated, is “occurring everywhere, courts don’t want to report it, courts don’t want to call it out.”
“The problems that we have here,” he said, “commonsense says these things are taking place everywhere.”
“At the root of this are some really incredibly significant stuff for defendants,” he added. What is happening is that they are using people in the jails to collect information from inmates, “what they don’t want to do is release information that is good for those inmates. That is beyond troubling.”
“They somehow believe that informants are only usable for the government,” Mr. Sanders stated. “That they don’t have to comply with Brady, they don’t have to comply with Penal Code Section 1054.”
He asked how many people are sitting in prison for the rest of their lives, potentially, when the DA’s office or law enforcement has exculpatory evidence they just decided not to turn over?
“There inevitably has to be trust in the system that we can have access to everything they know,” he argued. “There are law enforcement folks and prosecutors who actually can live with themselves and not turn over materials helpful to the defendants, it’s just simply a disaster for the criminal justice system and it’s happening everywhere.”
“I have no reason to believe we have something unique going on in Orange County, just don’t believe it,” he said.
Scott Sanders will be in Davis on Saturday, November 15, 2014, at the Davis Senior Center. The event starts at 5 pm and costs $50 in advance. You can purchase tickets here. In addition to a speech by Mr. Sanders, he will participate on a panel with David Angel, Deputy D.A. Santa Clara County, Director of Conviction Integrity Unity; Prof. Deborah Davis, Ph.D., Professor of Psychology, University of Nevada, Reno; Attorney Todd Leras, former candidate for Sacramento County D.A.; Prof. Gabriel “Jack” Chin, Professor of Law, University of California, Davis.
—David M. Greenwald reporting