Judge Erred in Booting DA from Salon Massacre Trial, Attorney General Says

An Orange County Superior Court judge erred when he booted Orange County District Attorney Tony Rackauckas’ office from prosecuting the worst mass killer in the county’s history, according to court papers the state Attorney General’s Office filed with appellate justices that were obtained today.

The Attorney General’s Office, which was assigned the case after Judge Thomas Goethals recused the District Attorney’s Office from the prosecution of Scott Evans Dekraai, has appealed that ruling and filed its opening brief this week.

State prosecutors argue in the brief that the bar is much higher than the standard Goethals cited as his reason for removing Rackauckas’ office from the case because of issues with how the government handled jailhouse snitches in the investigation of Dekraai.

“The law is resoundingly clear that prosecutorial misconduct, even egregious misconduct, cannot form the basis to recuse a district attorney,” the Attorney General’s Office argues in its brief.

“Moreover, even if it could be an appropriate remedy for prosecutorial misconduct, recusing the OCDA will not ameliorate the systemic problems within the (Orange County Sheriff’s Department) identified by (Goethals) and, more importantly, have no bearing on Dekraai receiving a fair trial in this case.”

At issue in the case against Dekraai, who is facing the death penalty, is the placement of an informant -- Fernando Perez -- next to the defendant in Orange County Jail. Perez struck up a friendship with Dekraai, prompting authorities to secretly wire his jail cell and catch him bragging about the shootings.

Orange County District Attorney’s Office prosecutors planned to use the statements against Dekraai in the penalty phase of his murder trial. Dekraai’s attorneys, however, argued that Perez was questioning Dekraai after he had already been represented by a lawyer, which is a violation of his constitutional rights.

Orange County prosecutors capitulated the point during an evidentiary hearing on the issue last year and agreed not to use the statements in the penalty phase. Goethals last August found there was some misconduct, but stopped short of booting Rackauckas’s office from the case and dismissing the death penalty option.

When new records that logged the placement of inmates in Orange County Jail cells surfaced it touched off another round of evidentiary hearings that led Goethals to recuse Rackauckas’ office.

Goethals said the Orange County prosecutors had displayed too much loyalty to sheriff’s investigators, who he said had been untruthful in their testimony, and therefore Rackauckas’ Office had a conflict of interest that would not allow for a fair trial of Dekraai.

However, the Attorney General’s Office argued that prior legal precedent sets the bar much higher, and that even if Goethals’ assessment of the case was correct then it still shouldn’t trigger recusal.

Rather, the state’s prosecutors argued, the problem has already been remedied by Goethals’ ruling that prosecutors cannot use Dekraai’s comments to Perez in the penalty phase and that jurors will only here about the crime and how the shootings affected the families of the victims.

The Attorney General’s Office also argued that prosecutors were not to blame for Dekraai’s attorneys not receiving the records logging jail cell movements of inmates, but, rather the Sheriff’s Department is at fault.

“Here, misconduct by members of the (Sheriff’s Department) that was unknown to the OCDA cannot logically establish that the OCDA suffers from a conflict of interest that will prevent it from conducting its responsibilities in a manner that interferes with Dekraai’s right to a fair trial,” the Attorney General’s Office argued.

The Attorney General’s Office cited a case out of Los Angeles Superior Court in which the District Attorney’s Office was booted from a case for failure to provide defense attorneys’ evidence as required by law, but the ruling was overturned on appeal and the state Supreme Court denied a petition for review.

Dekraai, 45, pleaded guilty last year to killing his ex-wife and seven other people in and around Salon Meritage on Oct. 12, 2011.

City News Service; Photo: Patch Archive