Prosecutors Avoid Judge Who Booted DA from OC's Biggest Case

By PAUL ANDERSON

A half-dozen prosecutors in the Orange County District Attorney’s Office deny being encouraged to avoid trying cases before a judge who recently removed the office from handling the penalty trial of the worst mass killer in the county’s history.

Some defense attorneys have speculated or claimed in at least two published reports that prosecutors were advised to avoid taking cases before Orange County Superior Court Judge Thomas Goethals, who ruled the District Attorney’s Office can no longer be fair in the way it handles the case of Scott Dekraai.

He pleaded guilty last year to killing his ex-wife and seven other people in and a round a Seal Beach beauty salon on Oct. 12, 2011.

Interviews conducted by City News Service with six veteran prosecutors from multiple units in the office, ranging from sex crimes to special investigations, yielded the same response -- that no one has been directed to object to trying a case before Goethals in a legal maneuver known in slang terms as “papering” a jurist.

All of the prosecutors spoke to CNS on condition of anonymity.

“There is no edict for this office to paper (Goethals),” one senior prosecutor said. “It’s an individual call.”

That prosecutor willingly brought a high-profile murder case to Goethals “without any blowback at all.”

The Los Angeles Times recently reported that the District Attorney’s Office asked to disqualify Goethals in 57 cases since February 2014, which was about the time Public Defender Scott Sanders filed a 505-page motion seeking to have the District Attorney’s Office removed from the Dekraai case and the death penalty taken away as an option.

In 2011, Goethals was “papered” three times, according to the newspaper. In 2012, there were no disqualification requests involving the judge, followed by two in 2013, the Times reported.

Goethals’ courtroom clerk said he has refused requests in the past to comment on the issue.

The move to disqualify a judge for appearing to be “prejudiced” can be done without explanation by either side.

Many of the prosecutors interviewed by CNS pointed out that during the years that there were only a smattering of disqualification requests filed against Goethals, he was an assignment judge at the Central Justice Center in Santa Ana. There are almost no scenarios in which a prosecutor would “paper” a judge who is deciding which courtroom to assign for a trial, the prosecutors said.

“When you’re in (Department) C5, no one papers you,” one veteran prosecutor said.

It could happen if the judge in that courtroom wanted to make a plea deal that prosecutors objected to, the prosecutor said. But otherwise, it’s unheard of, he said.

Goethals has drawn a relatively high number of disqualification requests, but they stem mainly from his perceived stance and past rulings in sex-crime cases, not because of the Dekraai evidentiary hearings, which took months, the prosecutors said. At issue is the civil code 1108, which allows for evidence of uncharged criminal acts.

Multiple prosecutors who worked in the sex-crime unit said it was commonly known that Goethals might limit how much evidence a jury could see on their cases. Particularly at issue was the use of “1108” evidence, meaning testimony from “victims” a defendant has not been charged with attacking because the statute of limitations ran out or due to a prosecutor’s discretion.

Those types of witnesses, prosecutors say, can be useful in establishing a pattern of crimes and countering a defendant’s claim of a “my word against your word” defense.

“We’ve been papering him for a long time because of 1108,” said one prosecutor. “We just knew we would not go to Goethals if we have 1108 evidence in our cases. There was never really any policy, no blanket-paper discussions. We just talked about it among ourselves.” Another experienced prosecutor with background in the sex-crimes unit said he tried a case before Goethals without any problems because there were no issues related to “1108 evidence.” He did not receive any feedback from his office or supervisors that he shouldn’t have taken the case before Goethals, he said.

For some prosecutors, objections are filed on a case-by-case basis.

“There are still people in the gang unit who have gone to him on preliminary hearings and trials, and in terms of blanket-paper that hasn’t happened. It’s still up to the individual prosecutor as far as I’ve seen,” another veteran prosecutor said.

Goethals’ most recent ruling, however, may be a tipping point that pushes more prosecutors to avoid the judge’s court altogether, the prosecutor said.

“People just feel anything can happen in there,” he said.

“It’s definitely concerning. I wouldn’t want to try a case in there,” another prosecutor said.

“We’re representing our client and if the thought is a particular bench officer isn’t going to allow us the freedom to present what we think is admissible evidence or is going to do something harmful to the case, then we have the right to a preemptory challenge,” another prosecutor said.

Goethals’ ruling to recuse the District Attorney’s Office from the Dekraai case wasn’t the first time he has taken on prosecutors.

In 2013, Goethals removed Deputy District Attorney Eric Scarbrough from a case mid-trial when defense attorney John Barnett objected to a law enforcement officer’s delay in turning over a police report to the prosecutor, who was obligated to turn it over to the defense. Deputy District Attorney Nicole Nicholson was brought in to finish off the case, which resulted in the conviction of Jesse Andrew Green, a former Garden Grove police officer who sexually assaulted three women he dated.

Green’s trial, ironically, included testimony from a fourth victim whom Green was not charged with sexually assaulting because the statute of limitations prevented it.

In July 2013, Goethals, the former defense attorney and prosecutor, removed Deputy District Attorney Sandra Nassar from a case after she admitted she withheld potentially exculpatory evidence for strategic reasons.

In March of last year, just before the first round of evidentiary hearings were held in the Dekraai case, Goethals removed Deputy District Attorney Erik Petersen from a case because he found that Petersen did not hand over evidence to defense attorneys as required by law.

The judge found Petersen made a so-called Brady violation, named after a landmark case where the U.S. Supreme Court held that a defendant is entitled to get any and all evidence that may prove innocence.

Brady violations were a sticking point in the Dekraai motions alleging government misconduct involving the use of jail informants and Petersen was named throughout those pleadings and was called to testify.

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