Commentary: AG’s Office Looks Other Way at Orange County Wrongdoing

Scott Sanders
Orange County Assistant Public Defender Scott Sanders speaking in Davis in 2014 about the Orange County jailhouse informant practices

Back in August, we asked why the supposedly liberal California Attorney General’s office was trying to seek the death penalty in the case of Scott Dekraai, despite Attorney General Xavier Becerra’s (and his predecessor Kamala Harris’) professed opposition to the death penalty particularly in the wake of claims of “outrageous governmental misconduct.”

That became more obvious a week later when, despite the office’s efforts to keep the death penalty option on the table, Judge Thomas Goethals, no liberal himself, ruled against both AG offices and felt that the only thing he could do to send the message was to remove the death penalty option.

“In this court’s view, these truths matter,” he said. “To ensure the ongoing integrity of the justice system, courts must demand that everyone follow the same set of rules.”

The judge stated plainly: “This court believes that maintaining the integrity and viability of Orange County’s criminal justice system remains of paramount importance.”

We wrote at the time that it is disappointing that two supposedly reformist-minded Attorney General offices would turn what would appear to be a blind eye to a level of corruption that is frankly mindboggling.

Now Scott Moxley, whose excellent work on this case in the Orange County Weekly has kept the heat on the criminal justice system, asks the basic question, “Why Is California’s AG Turning Blind Eye to Orange County Deputies’ Perjury?

Mr. Moxley quotes federal appellate Judge Alex Kozinski from February: “The public thinks that we have the best criminal-justice system in the world and that we never make mistakes…  And that is reinforced by television. . . . There are a lot of shows where they catch the bad guy and the public believes that is the case: that prosecutors are [always] fair, forensic examiners are [always] accurate, and everything is hunky-dory. It’s not.

“When I talk about prosecutorial misconduct, I don’t want to be understood as saying that all prosecutors or most prosecutors are dishonest or commit misconduct,” he said. “Most, in my experience,
are honest, reliable and trying to do the right thing. The problem is that there are some out there who misbehave, and occasionally, an entire prosecutorial office misbehaves because of the leadership.”

Mr. Moxley writes, “Kozinski’s last line might as well have named Rackauckas, the 74-year-old elected politician assigned the task of safeguarding our local criminal-justice system, but who declined to punish a single wrongdoer on his staff. He also hasn’t filed charges against three sheriff’s deputies (Bill Grover, Seth Tunstall and Ben Garcia) who are, according to Superior Court Judge Thomas M. Goethals, guilty of committing perjury in their testimony during 2014 and 2015 special evidentiary hearings for a death-penalty case. There’s no mystery for the DA’s inaction—the lies benefitted his office.”

He adds, “Like his predecessor U.S. Senator Kamala Harris, AG Xavier Becerra possesses the legal authority, if not the moral obligation, to pursue charges when a cop is caught brazenly lying under oath.”

Mr. Moxley writes that 30 months ago, under the watch of Kamala Harris, “the office opened an investigation into sheriff’s department antics, including the perjury.”

He continues, “This supposedly ongoing probe appears to have been nothing more than a sham.”

Mr. Moxley notes that to some extent the AG’s office has contributed to this problem.  He writes, “In addition to producing no charges, AG investigators obeyed an assistant sheriff’s commands that interviews not be recorded. Perhaps worse, Deputy AG Michael T. Murphy huddled this year with Hutchens not to pressure her to clean up her soiled act, but rather to offer strategy on how to downplay the scandal during her own testimony in front of Goethals, according to court records. Murphy also gave immunity to numerous members of Hutchens’ command staff involved in the scandal.”

Mr. Moxley concludes: “If the AG’s office heeded the judge’s call for honest oversight of law-enforcement shenanigans, officials had the perfect opportunity in the Orange County snitch scandal to demonstrate rehabilitation. But it seems they are destined to blow it once again by sending an unambiguous message to dirty cops: You’ve got a free pass to lie on the witness stand and walk away smiling.”

In the meantime, the fact that the AG’s office is looking the other way here is frankly appalling.

What we found out is that, over the last several years, over the course of a series of evidentiary hearings, the immediate discovery of a coordinated effort to get inmates to snitch on other inmates, the DA’s office and the sheriff then compounded their problems by, instead of working to comply with the court’s lawful orders or working to correct “the systemic problems,” the members of the prosecution team according to the judge “chose to either deny, or ignore, these glaring illegalities.”  The sheriff and DA not only ignored orders, but continually downplayed the severity of the conduct.

Judge Goethals writes, “Sheriffs’ sworn personnel gave false and/or intentionally misleading testimony regarding the existence of relevant jail records. The evidence proves the existence at relevant times of voluminous discoverable data bases created and maintained by OCSD sworn personnel.”

Orange County Sheriff Sandra Hutchens testified and “acknowledged at least some of her Department’s discovery failures in this case and apologized to the court for them.”

In his conclusion, the judge writes, “During her testimony the Sheriff herself offered no explanation as to how this situation could exist so many years after this court issued its first discovery order.”

The truth, the judge writes, is that “over a course of years, rather than over a course of days or weeks or even months, Sheriff’s deputies operating inside the Orange County jail system intentionally moved working confidential informants … to elicit incriminating statements from targeted defendants.”

This “well established program” he said “is not a myth.”  As the 4th DCA concluded upon appeal and in upholding the lower court’s decision, “(t)he magnitude of the systemic problems cannot be overlooked.”

The judge concluded that “the truth is more than one member of the Orange County Sheriff’s Department has either lied or willfully withheld evidence from this court during testimony given concerning the various defense motions.”

And the other truth is that the Orange County DA’s office “has been complicit in the Orange County Sheriff’s misconduct. In point of fact, there was no legitimate reason for OCSD to create and maintain such a sophisticated, synchronized, and well-documented CI program other than to obtain statements that will benefit prosecutions.”

And still another truth is that the California AG’s office has done nothing to hold the wrongdoers here accountable, and that may be the most disappointing aspect of all.

—David M. Greenwald reporting

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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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