Motion Claims State’s Cheating Compels Court to Block Death Penalty

Orange County Public Defender Scott Sanders

Orange County Deputy Public Defender Scott Sanders, who will speak at the Vanguard’s event on Saturday, filed a motion last week that indicates he has uncovered “additional efforts by the Orange County district attorney’s office (OCDA) and sheriff’s deputies to sabotage the defense of Scott Dekraai by hiding evidence and offering dishonest testimony,” reported the Orange County Weekly yesterday.

Mr. Sanders is trying to get the death penalty thrown out in the case of Scott Dekraai, who has admitted to being the shooter in a 2011 Seal Beach salon massacre. However, Scott Sanders alleges that the Orange County District Attorney’s office, and Sheriff’s Department, cheated in hopes of securing the death penalty for his client.

Prosecutors continue to insist any errors to be “innocent mistakes” and have promised retraining. However, Mr. Sanders argues there has been “a systematic and ongoing process of concealing evidence favorable to the defense,” practices that have caused him to divert focus on the “litigation at hand” to chase what the OC Weekly calls “seemingly endless examples of unethical law-enforcement conduct tied to the case.”

In August, Judge Thomas Goethals ruled that, while the prosecutors committed serious misconduct in their investigation, their actions were “negligent rather than malicious.” That means that the defendant will still face the death penalty when the penalty portion of the trial begins.

Judge Goethals ruled misconduct in failing to turn over exculpatory evidence. He wrote, “The court further finds that the misconduct was the product of woefully inadequate legal training, along with a lack of professional energy and strategic imagination.”

“It is assumed that the priority of law-enforcement and prosecutorial agencies is to ensure that justice is done, not to ensure victory,” Mr. Sanders wrote in his most recent motion. “A system in which the governing principle of the state is self-protecting and winning by any means rather than the assurance of justice is one in which we can never be confident that all favorable evidence discovered by the state is divulged to the defense and, thus, presented to a jury.”

The OC Weekly writes, “For prosecutor Dan Wagner, Dekraai earned the ultimate punishment as the instigator of the worst mass killing in Orange County history.

“But Sanders believes Wagner, who heads the OCDA homicide unit, has been overzealous in attempting to send Dekraai to San Quentin State Prison’s notorious Death Row. For example, Wagner improperly obtained ‘four or five’ records pertaining to Dekraai’s consultations with mental-health experts and his lawyers and, though the case is more than three years old, advised Sanders of the fact in recent weeks, according to the new motion.”

The account continues, noting, “Perhaps more alarming to Sanders is that prosecutors and sheriff’s deputies testified for hours and hours downplaying the suspected orchestrated movements of informants in the jails to win confessions after a defendant had been arraigned and had a lawyer, an illegal government tactic.

“Despite evidence otherwise, government officials denied they’d participated in such schemes or declared themselves in the midst of sudden memory loss. In a few cases, jail deputies known for relatively keen intellects appeared on the witness stand to be dumber than a box of rocks or more forgetful than your drooling great-grandfather. Nonetheless, Goethals–a former prosecutor–ruled in August that the informant movements hadn’t been part of a conspiracy.”

Mr. Sanders is now arguing for a reconsideration of the decision in light of new evidence: “Testifying jail deputies–Ben Garcia, Bill Grover and Seth Tunstall–concealed the existence of a decades-old, computerized ‘TRED’ system that records daily inmate movements, and that concealment allowed the deputies to mislead the court about the coordinated use of informants.”

The Weekly reports, “Garcia, for example, distanced himself from the movements by claiming Dekraai’s cell location next to a prolific informant had been the result of a nurse’s housing recommendation and, he claimed with a straight face, that deputy wishes were secondary.”

But in discovering the secret TRED system, the Weekly reports that Scott Sanders found this entry written by Garcia’s own Special Handling Unit: “[Dekraai] is not to be moved regardless of medical or mental health request. All movement has/will be approved by [the Special Handling Unit].”

They report, “To the public defender, this revelation ‘alone’ requires the judge to reverse his prior finding.”

“Garcia was telling [under oath] half-truths and, at times, telling no truth at all,” Mr. Sanders told Judge Goethals, according to the Weekly. “Garcia had a sudden bout of amnesia. . . . Quite obviously, his refusal to reference these [TRED] records can only be rationally viewed as consciousness of wrongdoing. . . . The reality is that when these deputies testified, they understood their objective: avoid giving a single, careless answer that could lead to a revelation about the existence of the TRED records. They were successful, if conspiracy to obstruct justice by a law-enforcement officer is considered an achievement.”

The Weekly also reports that Mr. Sanders’ motion targets “Senior Deputy District Attorney Larry Yellin for publicly attacking his contentions while allegedly himself hiding critical informant records in a major 1998 Orange County homicide case: People v. Nuzzio Begaren. Gunmen ambushed Begaren on a 91 freeway off-ramp in Anaheim and murdered his wife, a passenger in the vehicle, and a prison guard. A jury convicted Begaren for hiring hoodlums to kill his wife.”

In an interview with the Vanguard last week, Scott Sanders, who is the Vanguard’s keynote speaker on Saturday at an event on Prosecutorial Misconduct, told the Vanguard, “It just speaks to the willingness to cross lines to win.”

The problem, according to Mr. Sanders, both in Orange County and throughout the state and really throughout the nation, is that “prosecutors just don’t live in fear of engaging in prosecutorial misconduct. And in a place like Orange County, the win has become the greatest value,” he said, noting “it’s probably been that way for decades.”

“Unless there is a fear that is created by an outside force that there are ramifications when you commit misconduct, it’s going to happen,” he stated. In his case, he said, “I think all we did is touch the surface of what’s been going on here.”

We have been talking about issues involving jailhouse informants, but he finds it difficult to believe that the misconduct is “limited somehow to discovery problems with informants. These are deeply rooted problems where due process and Brady is very much secondary to the first goal, winning.”

While he continued to praise Judge Goethals here, he said the biggest problem with people speaking out is that “people don’t like to do things which they think will damage their careers, damage offices, damage sometimes their own chances of being on the bench and staying on the bench.”

Orange County, he said, is a county that depends on the support of the District Attorney’s office. “It’s very hard to be a judge without that support.” Many of the judges are former prosecutors.

While the judge ruled against them, he does not believe that they are done here. He believes another outcome is still possible. His goal remains to have the death penalty eliminated as a possibility. Mr. Sanders has thus far failed to block the death penalty, which would occur when the penalty phase trial happens, potentially next year.

“That’s really the goal,” he said. “We think that the level of misconduct is so great that it is not reasonable to have faith that this prosecution will turn over materials.”

Mr. Sanders said that the statements used by the informant have been excluded for all purposes. One of the remaining questions is whether the defense will be able to use this information during the penalty phase to impeach the prosecution.

“I think what’s taken place is relevant to the penalty phase,” he said. “I think when the prosecutor’s office withholds evidence then that conduct is relevant to when the jury’s receiving all of the evidence to which they’re entitled.”

Prosecutorial misconduct, Scott Sanders stated, is “occurring everywhere, courts don’t want to report it, courts don’t want to call it out.”

“The problems that we have here,” he said, “commonsense says these things are taking place everywhere.”

“At the root of this are some really incredibly significant stuff for defendants,” he added. What is happening is that they are using people in the jails to collect information from inmates – “what they don’t want to do is release information that is good for those inmates. That is beyond troubling.”

He asked how many people are sitting in prison for the rest of their lives, potentially, when the DA’s office or law enforcement has exculpatory evidence they just decided not to turn over?

“There inevitably has to be trust in the system that we can have access to everything they know,” he argued. “There are law enforcement folks and prosecutors who actually can live with themselves and not turn over materials helpful to the defendants, it’s just simply a disaster for the criminal justice system and it’s happening everywhere.”

“I have no reason to believe we have something unique going on in Orange County, just don’t believe it,” he said.

Scott Sanders will be in Davis on Saturday, November 15, 2014, at the Davis Senior Center. The event starts at 5 pm and costs $50 in advance. You can purchase tickets here. In addition to a speech by Mr. Sanders, he will participate on a panel with David Angel, Deputy D.A. Santa Clara County, Director of Conviction Integrity Unity; Prof. Deborah Davis, Ph.D., Professor of Psychology, University of Nevada, Reno; Attorney Todd Leras, former candidate for Sacramento County D.A.; and Prof. Gabriel “Jack” Chin, Professor of Law, University of California, Davis.

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—David M. Greenwald reporting

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