Judge Says Prosecutors Guilty of Misconduct in Dekraai Case but Won't Remove Them

UPDATE at 2:36 p.m.

By PAUL ANDERSON
City News Service

A judge ruled today that prosecutors may not use statements a convicted mass killer made while in jail, but stopped short of removing the District Attorney’s Office from the case or barring prosecutors from seeking the death penalty.

Orange County Superior Court Judge Thomas Goethals Goethals did rule that investigators engaged in serious misconduct by using jail informants in the case against Scott Dekraai but said it was due more to negligence, not conspiracy as alleged by defense attorneys.

“We’re pleased that he found there was misconduct, but we think the remedy should have been a stronger one,” said Assistant Public Defender Scott Sanders, who filed the 505-page motion earlier this year that led to the evidentiary hearing that began in mid-March.

Orange County District Attorney Tony Rackauckas told reporters, “I do agree with many of the findings of Judge Goethals.” But he added that while some of his prosecutors were guilty of “errors,” there was no “intentional misconduct.”

Rackauckas said he was working with sheriff’s officials to reform the unit that handles jailhouse informants.

Dekraai, 43, pleaded guilty to killing his ex-wife and seven other people, and almost killing a ninth victim, in and outside a Seal Beach beauty salon on Oct., 12, 2011. The penalty phase of his trial was scheduled to begin this month, but will be postponed. Attorneys will back in court Sept. 12 to discuss new dates.

In his 12-page written ruling, Goethals said some investigators were “credibility challenged,” while others “lied” during the evidentiary hearing. The judge did not name names.

“It would have been helpful to the system to know who these people are,” Sanders said.

Rackauckas said he felt some of his prosecutors, particularly those assigned to gang cases, have been burdened with too much work, leading to mistakes made when turning over evidence to defense attorneys as required by law.

“We’ll have to work to reduce the caseloads,” Rackauckas said.

In one case, four pages of background on a jailhouse snitch were turned out when it turned out there were hundreds more, according to testimony in the evidentiary hearing. Prosecutors have since decided to vacate the murder conviction against Leonel Vega in that case and will pursue a retrial.

Deputy District Attorney Erik Petersen, who prosecuted that case, was booted by Goethals in March from a jail-beating case that was part of a federal and state crackdown on the Mexican Mafia, known as Operation Smokin’ Aces, for not turning over all evidence as required to defense attorneys.

Petersen said he did not think he was required to turn over the evidence in question, but he testified during the Dekraai hearing that his understanding of the legal obligations requiring the exchange of evidence was “evolving.”

Rackauckas said his office has conducted further training and held seminars for his attorneys on their so-called Brady obligations.

“But I don’t think this is a training issue,” Rackauckas said. “I think our training has been good.”

Prosecutors had already given up on a motion to prohibit them from using a statement made by Dekraai in which he appears to “brag” about the Salon Meritage massacre. But, without Goethals’ ruling, they could have used it if Dekraai had testified on his own behalf in the penalty phase.

Prosecutors also were scolded by Goethals for failing to share information with defense attorneys and “repeated improper attempts” to get Dekraai’s psychiatric records.

Attorneys for Dekraai claimed sheriff’s deputies give jailhouse snitches easy access to inmates to pump them for information that can be used to prosecute them. In Dekraai’s case, confidential informant Fernando Perez was put in a cell next to Dekraai.

Goethals ruled that “more likely than not” Perez was not placed next to Dekraai to further a “specific plan by law enforcement.”

Dekraai, in fact, was assigned to the cell by an Orange County Health Care Agency nurse, not someone from law enforcement, Goethals said. Perez was in the neighboring cell for some weeks before the Seal Beach massacre.

The judge, however, took issue with prosecutors for not looking into Perez’s background earlier and discovering he had been actively working as a jailhouse informant. Prosecutors argued that Perez was instructed not to question Dekraai, which would have violated his constitutional rights, but to just “listen and report.”

Goethals did not buy that argument.

“The owner of a starving dog cannot evade liability for the dog’s destructive behavior inside a butcher shop by instructing that dog not to eat just before releasing him into the shop knowing at the time that it is teeming with fresh cuts of prime beef,” Goethals wrote in his ruling.

Prosecutors also erred when they filed a sworn statement that Perez was not given any “leniency or consideration” for his work on the Dekraai case, Goethals said. The judge, however, accepted Assistant District Attorney Dan Wagner’s testimony that he was unaware at the time he signed the declaration that Perez was a government snitch expecting favoritism on his pending sentence in a gang case.

Goethals said in his ruling that he had to focus on whether Perez had violated Dekraai’s rights and whether that merited the sanctions sought by defense attorneys. He said he allowed the evidence about the other unrelated gang cases because of the conspiracy allegations.

“It is not the appropriate function of this court at this time to attempt to fashion a global remedy related to all of the prosecutorial misconduct issues raised by the evidence it has heard,” Goethals wrote.

“The history of the Office of the Orange County District Attorney is proud and accomplished. The events associated with the current hearing do not constitute the District Attorney’s finest hour,” Goethals wrote. “Nonetheless, after an exhaustive evaluation of the totality of this record, the court finds that the District Attorney’s well-documented failures in this case, although disappointing, even disheartening, to any interested member of this community, were negligent rather than malicious.”

PHOTO Police lead Scott Dekraai from the scene of Orange County’s worse mass murder at a Seal Beach hair salon. Patch file photo.