We have been following this case for a long time – partly because it has been going for almost six years in total and the penalty portion since 2014 when Orange County Assistant Public Defender Scott Sanders came to Davis in November to speak on prosecutorial misconduct and his case.
Aside from Mr. Sanders himself, the hero in this case is fairly unlikely. Judge Thomas Goethals, himself a former Deputy DA appointed to the bench in 2002.
Judge Goethals described himself and the court as patient perhaps to a fault in this case – as order after order was either ignored or slow-played, as official after official obfuscated, spun, if not outright lied.
In our view, based on the Judge’s ruling both the Orange County DA Tony Rackauckas and Orange County Sheriff Sandra Hitchens as well as some of her deputies should face criminal charges.
It is ultimately disappointing to see that two supposedly progressive California Attorney Generals offices have aided and abetted this fiasco. Former Attorney General Kamala Harris and her office fought the Judge’s decision to bar the Orange County DA’s office from prosecuting the case’s penalty phase. Her office attempted to minimize the extent of the misconduct and left it to the appellate court to slap them both down.
Then under current Attorney General Xavier Becerra, the office attempted to keep the death penalty option on the table. Ultimately Judge Goethals ruled against both AG’s offices and felt that the only thing he could do to send the message was remove the death penalty option.
“In this court’s view, these truths matter,” he said. “To ensure the ongoing integrity of the justice system, courts must demand that everyone follow the same set of rules.”
The judge stated plainly: “This court believes that maintaining the integrity and viability of Orange County’s criminal justice system remains of paramount importance.”
Ultimately that determination by the judge overrode his belief that the defendant in this case deserved the harshest penalty available for the crime of eight counts of premeditated mass murder.
It is disappointing that two supposedly reformist minded Attorney General offices would turn what would appear to be a blind eye to a level of corruption that is frankly mindboggling.
However, Mr. Becerra and his office can make this situation better by pursuing criminal charges here. Frankly after reading the 19 page ruling by Judge Goethals, it is surprising that he himself did charge at least the Sheriff’s Department with criminal contempt.
The judge lays out his case in painstaking detail and even provides some direct examples of false testimony. This all started when the DA’s office provided discovery material that suggested that 
“while incarcerated in the Orange County Jail soon after his arrest, the defendant made incriminating statements to another inmate about the murders.”
At the time, they asserted “that the inmate who heard the defendant’s statements did not solicit them; that he asked the defendant no questions; that he never acted as an agent of law enforcement; and that he was not seeking, nor had he been offered, any consideration for his involvement in the investigation of this case.”
All of these assertions turned out to be false – and one of the key questions is at what point in time did they know that they outright lies rather than simply false statements? And who knew it and when.
Over the last several years, there were a series of evidentiary hearings where the evidence “demonstrates the existence of serious misconduct committed by key elements of the prosecution team.”
The DA’s office and the Sheriff then compounded their problems by instead of working to comply with the court’s lawful orders, work to correct “the systemic problems,” the judge wrote, the members of the prosecution team “chose to either deny, or ignore, these glaring illegalities.” The Sheriff and DA not only ignored orders, but continually downplayed the severity of the conduct.
The Judge writes, , “Sheriffs sworn personnel gave false and/or intentionally misleading testimony regarding the existence of relevant jail records. The evidence proves the existence at relevant times of voluminous discoverable data bases created and maintained by OCSD sworn personnel.”
Orange County Sheriff Sandra Hutchens testified and “acknowledged at least some of her Department’s discovery failures in this case and apologized to the court for them.”
However, the Judge writes, “the Sheriff’s testimony included her belief that the jail informant issue has been “blown out of proportion,” perhaps due to “sensational” media coverage. This testimony was consistent with prior statements made by the Sheriff, including those contained in a “LETTER FROM THE SHERIFF” released by OCSD several weeks before her testimony.”
Judge writes, “The court is struck by the content of this recent letter. If the Sheriff continues to deny the existence of the “systemic problems” related to her Department’s use of informants inside the county jail system which was discussed in such detail by the District Court of Appeal, how can this court generate any reasonable optimism that OCSD will effectively address those problems?”
Most damning for the judge is the fact that SEVEN members of the Sheriff’s staff had to invoke their Fifth Amendment rights to remain silent.
The Judge is not blind to the meaning of this as he writes, “Seven current members of law enforcement, sworn peace officers potentially still authorized to wear badges and carry firearms, several of whom appeared to testify wearing their OCSD uniforms, refused to answer questions under oath for fear that their responses might incriminate them and subject them to criminal prosecution.”
He writes most pointedly, “The fact that the People agreed to grant four of these witnesses use immunity (which required them to testify) does not change the fact that in this court’s forty years of experience in the criminal justice system such events are unprecedented.”
In his conclusion, the Judge writes, “During her testimony the Sheriff herself offered no explanation as to how this situation could exist so many years after this court issued its first discovery order.”
The truth, the Judge writes is: “over a course of years, rather than over a course of days or weeks or even months, Sheriff’s deputies operating inside the Orange County jail system intentionally moved working confidential informants … to elicit incriminating statements from targeted defendants.”
This “well established program” he said “is not a myth.” As the DCA concluded, “(t}he magnitude of the systemic problems cannot be overlooked.”
He concluded, “the truth is more than one member of the Orange County Sheriff’s Department has either lied or willfully withheld evidence from this court during testimony given concerning the various defense motions. ”
And the other truth is that the Orange County DA’s office “has been complicit in the Orange County Sheriffs misconduct. In point of fact, there was no legitimate reason for OCSD to create and maintain such a sophisticated, synchronized, and well-documented CI program other than to obtain statements that will benefit prosecutions.”
He wrote, “(D)uring this entire period, prosecutors failed their professional responsibility to properly investigate Perez’s CI work and produce information to Dekraai.”
The truth “is it was neither an accident nor a coincidence that the Orange County District Attorney resisted the defendant’s initial request for discovery concerning the criminal background and informant history of Fernando Perez.”
“Not only did the OCDA intentionally or negligently ignore the OCSD’s violations of targeted defendants’ constitutional rights, but the OCDA on its own violated targeted defendants’ constitutional rights through its participation in the CI program.”
Under a new law passed last fall, it is a felony for prosecutors to alter or intentionally withhold evidence that could be used to exonerate defendants. Violators of the law could be sentenced to up to three years in prison.
The law was passed at least in part with this case in mind. An article by the ABA Journal noted, “Although the Orange County allegations have attracted national attention, they have resulted in very few consequences for the accused prosecutors and sheriff’s deputies.”
That can now change.
Mr. Becerra, the integrity of our system relies on the ability for even guilty men to receive a fair trial, where they get to confront their accusers and the evidence put before them and from the judge’s ruling the people charged with the responsibility to carry out that prosecution have failed in their legal and ethical obligations and therefore as the chief law enforcement agency in the state of California, you are compelled to prosecute these officials to the fullest extent of the law.
—David M. Greenwald reporting
