Last November, Orange County Deputy Public Defender Scott Sanders came to Yolo County to talk about his battle in Orange County against prosecutorial misconduct and Orange County. Since then, the case has only gotten more heated, and what started out as a happenstance discovery, in a case where Mr. Sanders acknowledges his client, Scott Dekraai, is guilty of being the shooter in a 2011 Seal Beach salon massacre, now threatens to bring down the district attorney and perhaps more.
The allegation is simple – the Orange County District Attorney’s office, and Sheriff’s Department, cheated in hopes of securing the death penalty for Mr. Dekraai, by placing an informant in his close proximity in the jail and then covering it up through Brady violations (failure to disclose evidence favorable to the defendant) and worse.
In March, Orange County Superior Court Judge Thomas Goethals disqualified the D.A.’s office from continuing to prosecute Mr. Dekraai. In retaliation, the D.A.’s office launched a series of 170.6 motions (Cal. Code of Civil Proc. section 170.6) to disqualify Judge Goethals from future cases.
Under state law, there is no explanation needed for prosecutors or defense attorney to use Section 170.6 to remove a judge on the grounds of prejudice. However, its tactical use as retaliation can be a relatively powerful tool.
The bar association noted that the “excessive use of Section 170.6 … can give the appearance of being designed as punitive and retaliatory and going beyond the realm of appropriate criticism.”
Late last week, UC Irvine School of Law Dean Erwin Chemerinsky wrote that there are big problems at the Orange County DA’s office. The disqualification of the DA’s office, he said, “rarely, if ever, occurs.” The judge concluded that the “District Attorney has a conflict of interest in this case, which has actually deprived this defendant of due process in the past.”
Dean Chemerinsky notes that the Constitution limits the use of jailhouse informants. “Once a criminal defendant is represented by an attorney, the government is not allowed to question the defendant without the attorney being present,” he writes. “Prosecutors, though, may use incriminating statements by a criminal defendant to a cellmate or others so long as the government did nothing to encourage or procure them.”
However, in the Dekraai case and others, “it has been learned that the D.A.’s Office has systematically used jailhouse informants to elicit incriminating statements, including by offering benefits in exchange for information and by taping conversations. This is clearly unconstitutional.”
As the Dean notes, “Judge Goethals found that the D.A’s Office was systematically and continually violating this obligation. There also is evidence that sheriff’s deputies lied in court about the program and the frequency of its use.”
Moreover, “These are not obscure rules or mere technicalities. These are basic constitutional rights that have been long established.”
However, the wrongdoing goes further. Noting that the LA Times reported that “the D.A.’s office asked to disqualify Judge Goethals in 57 cases since February 2014. Over the three previous years, court records show prosecutors submitted five such requests.”
In a recent article in the Huffington Post, Linda Fernandez, a senior Liman Fellow at Yale Law School who studies prosecutorial misconduct around the nation, said that what “Orange County prosecutors appear to be engaging in is some of the worst she has ever seen.”
“For a bar association to conclude that prosecutors have in essence attempted to intimidate not just one judge, but the entire judiciary, is nothing short of extraordinary,” Professor Fernandez said.
It is not usually the crime, but the effort at “concealment” that forms the critical element in cases like these.
“Put simply,” Professor Fernandez said, “in Orange County, the cover-up has been even more egregious than the underlying violations — themselves incredibly serious — and appears to have included actual criminal conduct by both law enforcement officers and prosecutors in the form of perjury and obstruction of justice.”
The Post also talked to Sidney Powell, a former Assistant U.S. Attorney who worked at various positions within the Department of Justice for a decade. She said some of the worst corruption she has encountered has been in Orange County.
“[Orange County] is notorious within California and has been for years,” Ms. Powell told HuffPost. “A thorough cleansing with bleach and firehoses would be appropriate. The voters need to wake up.”
Meanwhile, there are cracks starting to appear in Orange County.
In mid-March, the OC Weekly had a story where DA Tony Rackauckas held a press conference where he wanted “residents to know that while there have been numerous screw-ups his prosecutors are ‘honest and hardworking,’ and that the real villain is a system that delays justice for the family and friends of Dekraai’s eight murdered victims.”
“I think the system has let them down,” the DA said. “I’m trying to bring these [types of] cases to justice in a more expeditious way. It’s getting worse, rather than getting better. The process has gotten more complicated over time.”
The paper reports, “Paul Wilson, who lost his wife in the tragedy, told Goethals he doesn’t know how Assistant Public Defender Scott Sanders, Dekraai’s lawyer, lives with the ‘blood on his hands’ by representing ‘that coward.’”
However, Mr. Wilson also blasted the DA, “whose prosecution team lost the judge’s confidence that they could obey well established court rules against hiding exculpatory evidence from defendants or discouraging perjury by Orange County Sheriff’s Department deputies tied to the case.”
“Tony, you let me down,” Mr. Wilson said. “This was a ship and you were the captain. That ship sank and I blame you. We shouldn’t be here [debating recusal]. None of this should have happened.”
The OC Weekly reported that Todd Spitzer, chairman of the Board of Supervisors, former state Assemblyman and prosecutor under this DA, “seethed at his old boss.”
“The system did not fail,” he said. “It was Tony Rackauckas who failed. The buck stops there.”
Mr. Spitzer, himself a victims’ rights attorney, reportedly “defended the work of Sanders and Goethals while denouncing what he sees as the DA’s cheap politicization of the case.”
He added, “It’s so insulting that the day after Judge Goethals makes his decision on recusal, the DA’s campaign manager [Michael J. Schroeder] is in the newspapers making personal attacks [on the judge]. That’s typical of this DA. He takes horrible advice from his handlers. Judge Goethals made a decision based on the law and the facts, and yet Rackauckas’ campaign manager denigrates him. This should be about justice. What a debacle. People are now questioning whether you can get justice from this DA’s office. The time has come for him to stand up, but he never admits he’s wrong about anything.”
All of this started with a deputy public defender who stumbled onto information that the DA’s office was intentionally moving an informant around the jail in an effort to get incriminating information against various defendants.
“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.”
The consequences here have been enormous, from vicious murderers let go with time-served to cover ups by the DA’s office, a recusal by the judge and now an attempt to intimidate the judge through papering the courts.
State Attorney General Kamala Harris has appealed Judge Goethals’ ruling to pull the entire DA office off the case, but did announce that her office will launch an investigation into all allegations.
Dean Chemerinsky calls on the state and Ms. Harris to conduct a thorough investigation. In fact, he writes, “A more independent investigation is warranted because there are sufficiently close ties between the A.G. and D.A. offices. Harris should appoint an independent, blue-ribbon commission, with full investigatory powers, to examine the O.C. D.A.’s office. The investigative commission should be given a short timeline, such as four months, to gather information and present recommendations for reform.”
He adds, “Prosecutors have enormous power. Prosecutorial abuses undermine the Constitution and risks the imprisonment, or even execution, of innocent people. The law is clear that prosecutors are to seek justice and uphold the Constitution, not just convictions and sentences. Unfortunately, the Orange County District Attorney’s Office seems to have forgotten this far too often.”
—David M. Greenwald reporting