The Bane of Prosecutorial Misconduct and What One Man Has Done To Change It

Scott Sanders
Orange County Deputy Public Defender Scott Sanders delivers the keynote speech on prosecutorial misconduct on November 15 at the Davis Senior Center
Orange County Deputy Public Defender Scott Sanders delivers the Vanguard’s keynote speech on prosecutorial misconduct on November 15, 2014, at the Davis Senior Center

Last year when the Vanguard held its annual program for its Court Watch program, it invited Scott Sanders – an Orange County Deputy Public Defender embroiled in a controversy that would absolutely explode in the months following his presentation last November at the Davis Senior Center – to be its keynote speaker.

Little did we realize at the time, but this would be the tip of the iceberg. Mr. Sanders has now been featured in every major publication including the New York Times, the Washington Post, and 60 Minutes, and this past week, the Orange County Register gave a lengthy account of Scott Sanders and his saga.

Included in the article is good outline of events. In October of 2011, “Eight people are killed at a Seal Beach beauty salon in the deadliest mass shooting in Orange County history. The suspected gunman, Scott Dekraai, is arrested shortly after the rampage. District Attorney Tony Rackauckas vows to seek the death penalty.”

In January 2013, “Prosecutors plan to use secret jailhouse recordings of Dekraai describing the shooting as evidence against him. Deputy Public Defender Scott Sanders later files a motion to block their use in court.”

By April 2014, “Prosecutors agree not to use the jailhouse recordings after Dekraai’s defense contends authorities improperly obtained the secretly recorded conversations using an informant.”

The next month, Mr. Dekraai pleads guilty to eight counts of murder.

In August 2014, “Superior Court Judge Thomas M. Goethals denies the defense’s request to bar the death penalty and remove the district attorney’s office from the case. The judge concludes prosecutors were negligent but not malicious when they failed to turn over evidence to the defense.”

In January, Mr. Sanders accused “the district attorney’s office and the Orange County Sheriff’s Department of misusing jailhouse informants in other cases and moves to block the death penalty against suspected murderer Daniel Wozniak. He is accused of killing two acquaintances in 2010.”

In March, in a stunning move, Judge Goethals “removes the district attorney’s office from the case against Dekraai, ruling that authorities improperly withheld key information and maintained a secret system of tracking the movements of jail informants. The state Attorney General’s office appeals the judge’s ruling, saying it ‘lacks legal justification.’”

In July, DA Rackauckas “says he will assemble a committee of legal experts to review the use of jailhouse informants. The U.S. Department of Justice warns that it is keeping an eye on the district

Missed Scott Sanders last year? Catch our discussion on Wrongful Convictions on November 15 - click on the photo to purchase your tickets
Missed Scott Sanders last year? Catch our discussion on Wrongful Convictions on November 15 – click on the photo to purchase your tickets

attorney’s office.”

As the Register reports this week, “As a member of the felony unit at the Orange County Public Defender’s Office, where he has worked for 22 years, Sanders has emerged as a lightning rod for controversy for exposing entrenched problems in how Orange County prosecutors and law enforcement agencies used jailhouse informants to build their cases against defendants while withholding evidence from defense attorneys.”

They note, “Sanders’ dogged efforts to unearth abuses has made him the bane of the Orange County District Attorney’s Office, which has been barred from prosecuting the biggest mass-murder case in the county’s history: the shooting deaths of eight people at a Seal Beach beauty salon in 2011.”

The DA’s office views him with disdain.

“He gets and deserves no respect,” said Mark Geller, a senior deputy district attorney who has been a target of Sanders’ sweeping accusations against prosecutors. “Scott Sanders shouldn’t even be a lawyer based on the tactics he’s engaged.”

But, as the Register reports, “Anti-Sanders sentiment is at least equaled by the fervor of his supporters.”

They quote Jeff Adachi, San Francisco’s public defender, who summed up the viewpoint of those who admire the work of Scott Sanders stating, “Scott Sanders has become a folk hero.”

Count me among those who admire the work and also the man. Last November we got a chance to not only hear what Scott Sanders said, but meet the man. I found him to be a man who was very committed to seeking justice, but also very unassuming and modest.

The Orange County Register quotes me in the article.

“How many other places is this happening? How many innocent people might have been railroaded in this kind of system and it hasn’t been discovered?” asked David Greenwald, executive director of the People’s Vanguard of Davis, a nonprofit group that monitors the justice system.

Greenwald invited Sanders to give a keynote speech at a November fundraiser and take part in a panel discussion about prosecutorial abuses. He said many of those who attended – the crowd was thick with defense lawyers – seemed “blown away” by what one man had accomplished in challenging the government’s powerful legal machinery.

“It’s hard to imagine that Orange County is worse than anywhere else,” Greenwald said. “You’ve got to imagine there are all sorts of shenanigans going on. D.A.s need to get their convictions to stay in office. The incentive structure is poor; it sets things up for misconduct.”

We have often noted the difficulty in sanctioning and disciplining dishonest prosecutors. We have cited the work of the Northern California Innocence Project from 2010, showing that only a small handful of prosecutorial misconduct is ever disciplined through the California bar. There was the US Supreme Court decision a few years ago that removed sanctions against a New Orleans prosecutor in the John Thompson case. And then there was Judge Alex Kozinski who admonished judges and the bar earlier this year for failure to discipline wrongdoing.

That is the backdrop for a New York Times editorial from Wednesday.

The Times writes: “Prosecutors who bend or even break the rules to win a conviction almost never face any punishment. But even given lax controls, the blatant and systemic misconduct in the Orange County district attorney’s office in Southern California stands out. In a scheme that may go back as far as 30 years, prosecutors and the county sheriff’s department have elicited illegal jailhouse confessions, failed to turn over evidence that is favorable to defendants and lied repeatedly in court about what they did.”

The Times continues: “These unconstitutional abuses are all the more troubling because Orange County is not some corrupt backwater with one rogue prosecutor. With more than three million residents, the county itself is more populous than nearly half the states in the country. Its district attorney’s office employs 250 prosecutors.”

“Among other things, the defense argued, deputies intentionally placed informants in cells next to defendants facing trial, including Mr. Dekraai, and hid that fact,” the Times writes. “The informants, some of whom faced life sentences for their own crimes, were promised reduced sentences or cash payouts in exchange for drawing out confessions or other incriminating evidence from the defendants. This practice is prohibited once someone has been charged with a crime. Even when using an informant is allowed, defendants and judges must be told of the arrangement.”

However, in Orange County there was no disclosure that this occurred. As Mr. Sanders discovered, “the sheriff’s department kept secret a computer file showing where jailhouse informants were placed that went back decades. The prosecutor’s office kept separate files of data on informants and their deals. Some of the informants have helped law enforcement repeatedly in exchange for favors, a fact that is highly relevant in weighing their credibility.”

The Times writes: “The debacle in Orange County may be notable for its sheer size and impact — already, some murder convictions have been thrown out while other prosecutions have fallen apart — but such misconduct is an all-too familiar scenario when prosecutors value winning above justice. Alex Kozinski, a federal appeals court judge in San Francisco, has written that the withholding of exculpatory evidence has reached ‘epidemic’ levels, and that the only way to stop it is for judges to hold prosecutors accountable.

“Judge Goethals has set an important example on that count. The district attorney’s office continues to deny any wrongdoing, and has recently sought to have the judge removed from dozens of cases. Meanwhile, District Attorney Tony Rackauckas says the office’s failings are no more than the result of overworked prosecutors making isolated mistakes. Given the scope of what has been uncovered, that explanation is implausible.

“The Justice Department should conduct a thorough investigation. But there is no indication that’s going to happen. In fact, it appears that Erik Petersen, one of the prosecutors Judge Goethals found had withheld key information from the court and defense lawyers, was offered a job in the federal prosecutor’s office in Omaha. When questioned about this inexplicable decision, a Justice Department spokesman would say only that Mr. Petersen will not become an employee in the department.”

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Dave Hart

    Uncovering facts about or even talking about prosecutorial misconduct scares the hell out of most people.  After all, we are calling attention to the condition of the very foundation of our nation state itself.  In an age where our government executes people with armed drones without any kind of due process, prosecutorial misconduct ranks as a petty crime.  We’d rather argue about whether there should be a three or six story building on a given parcel of land downtown than take on an issue that is far more profound.  But keep up the coverage.  It is only because so many people believe misconduct is not possible that it has progressed so far.  Making it an issue is the first step to retarding the progress of the disease.

  2. Davis Progressive

    i think david’s point is critical – it’s easy to look at orange county and be appalled.  but this stuff is happening everywhere, we just don’t know about it.

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