OC Prosecutors In Seal Beach Mass Murder Case Get Scathing Report

SEAL BEACH, CA — Orange County District Attorney Todd Spitzer's office Monday released an audit of the prosecution of Scott Dekraai, the largest mass murderer in the county's history, that concluded the two prosecutors assigned to the case "committed malpractice due to intentional negligence" in the use of jailhouse informants in the case.

On Oct. 12, 2011, Scott Dekraai, then a 41-year-old former tugboat operator, put on body armor, armed himself with several guns, and walked into a Seal Beach hair salon. There, he executed his ex-wife and seven others in what would become Orange County's deadliest mass shooting. A ninth victim survived the massacre.

Dekraai was arrested just minutes after the shooting and booked into the Orange County Jail. Rather than achieve the death penalty in this case, an Orange County Superior Court judge recused the entire Orange County District Attorney's Office from prosecuting him.

Instead of being sentenced to death, Dekraai is serving life without the possibility of parole.

Orange County District Attorney Todd Spitzer says that they "trampled on the defendant's rights, violated discovery laws and OCDA policies and protocols."

Most importantly, they prevented the victim's families the full imposition of justice, Spitzer said.

Former prosecutors Dan Wagner and Scott Simmons, who retired in December, were not named in the scathing report. Spitzer's office made it clear that both are the targets of criticism in the scathing 57-page document, finally published after a 15-month investigation.

Simmons and Wagner have said they would comment on the report after they have a chance to read it.

Though the report recommended discipline of Wagner and Simmons, that is no longer possible due to the pair's retirement.

"Notwithstanding, this report is available to state compliance and law enforcement agencies for their review," it reads.

The report also found that there was "insufficient evidence to determine prosecutorial misconduct or malpractice in the five other cases where confidential informants were also utilized."

The report's authors found that the office "has implemented significant reforms to address the deficiencies involving the use of confidential informants."

Spitzer ordered the report to "get to the bottom" of what has become known as the jailhouse informant scandal.

Patrick Dixon, special counsel to Spitzer and a prosecutor with 37 years of experience with the Los Angeles County District Attorney's Office, wrote the report with Steve Danley, a consultant who previously was a chief human resources officer and performance auditor for Orange County.

The authors found that prosecutors were so fearful that Dekraai would try a defense of insanity and avoid the death penalty. They improperly used a confidential informant to gain incriminating comments from the defendant while the two shared a cell.

Both Danley and Dixon concluded that the prosecutors worried that Dekraai would seek an insanity defense, as had Edward Charles Allaway in 1976. Allaway avoided the death penalty with an insanity defense in his mass shooting at the Cal State Fullerton Library.

The original prosecutors went the route of employing a "jailhouse informant" who was trusted by officers, to learn more within the confines of their cell without a lawyer present, in what the report calls malpractice.

Sources say Dekraai bragged about the killings to the confidential informant. Dekraai said he felt like he was "in the matrix," a reference to the film when he went on his killing spree targeting his ex-wife and eight of her friends at the salon after a child custody hearing went against him in family law court. Only one person survived the attack.

The informant scandal ultimately led then-Orange County Superior Court Judge Thomas Goethals to remove the death penalty as a punishment for Dekraai, who pleaded guilty to the salon massacre and was sentenced to life in prison without the possibility of parole.

Spitzer attended the Dec. 5 retirement party for Wagner and Simmons and promoted Wagner to head the North Justice Center in Fullerton after he took office.

According to the report, the main issue in Dekraai's prosecution was whether confidential informant Fernando Perez was directed to question Dekraai as a government operative. If he was, that goes against the law, which states that a defendant cannot be questioned if defense counsel already represents them. Perez claimed in his testimony that he overheard Dekraai's comments regarding the murders, which would have been OK.

Goethals, now an appellate justice, ordered three rounds of evidentiary hearings as more evidence surfaced about the confidential informant program.

A vital issue in the first round of evidentiary hearings was whether Perez was "intentionally placed" in the cell next to Dekraai, which was denied by sheriff's deputies. Later, however, evidence surfaced that records were found that tracked the defendants' movements, which deputies denied in the first round of evidentiary hearings.

The scandal led to plea deals in other murder cases that allowed killers to walk free, Spitzer says, including one who avoided a life sentence.

Spitzer unseated former District Attorney Tony Rackauckas in part as he criticized Rackauckas' handling of the Dekraai prosecution.

City News Service, Patch Editor Ashley Ludwig contributed to this report.