Orange County Assistant Public Defender Scott Sanders came to Davis back in 2014 to talk about the Scott Dekraai case and the sheriff’s informant scandal. Mr. Sanders first filed a motion in that case in January of 2014.
Judge Thomas Goethals, himself a former prosecutor, finally had enough and laid down the gauntlet after years of evidentiary hearings and failure by the Orange County Sheriff’s Department and the DA’s office to come clean.
Judge Goethals announced in court, “This court finds that [Tony Rackauckas’ Orange County District Attorney’s office and Sandra Hutchens’ sheriff department] are unwilling or unable to comply with lawfully issued orders.”
Scott Dekraai was arrested back on October 12, 2011, and charged with the worst mass killing in the history of Orange County.
This was a slam dunk case. As the judge pointed out, the shootings were of such “horrible magnitude they can hardly be compared to any others in the history of Orange County.”
The sheriff’s department and the DA’s office took what should “have been a slam-dunk case” and turned it into a fiasco perhaps of unparalleled proportions.
The judge cited the belated, repeated discovery of additional records and said that Sheriff Sandra Hutchens, who testified in the hearings, “could offer no explanation as to how this situation could exist so many years after this court issued the first discovery order.”
The sheriff’s department “consistently responded to this court’s lawful order with such indolence and obfuscation,” Judge Goethals said, stating that he could not ensure compliance from the prosecution team moving forward.
“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.”
Judge Goethals continued: “These truths matter because what has always made America a beacon of justice, stability and hope both at home and abroad is the fact that this great country operates under the rule of law…No individual or agency is above the law.”
The OC Weekly, which deserves an award for their coverage of this story, reports that “the sheriff and DA issued lame press releases stating their disappointment and, as usual, pretending that the judge hadn’t witnessed four years of remorseless perjury and evidence hiding by badged individuals.”
Judge Goethals also took time to ridicule the “Orange County Grand Jury’s June report dismissing the snitch scandal as imaginary.
“The informant program is not a ‘myth,'” he said.
Deputy Attorney General Michael Murphy, the lead prosecutor on the Dekraai case, said his office will weigh an appeal. “We’re going to examine the opinion closely and make a decision soon.”
County Supervisor Todd Spitzer, a former prosecutor and Republican state Assemblyman, reportedly “reacted to the historic ruling by calling for Hutchens and Rackauckas to resign before the end of 
their elected terms in office because of their ‘reprehensible’ conduct.
“I am incredulous that the Orange County criminal justice system has earned a national reputation for corruption that will take years, if not decades, to repair,” Mr. Spitzer said in a press statement.
In a 19-page ruling, Judge Goethals lays out how this case went from “slam dunk” to unraveling. Mr. Dekraai was indicted on January 17, 2012, on eight counts of murder along with special circumstances. He initially pleaded not guilty.
However, early on, the People “provided discovery materials to defense counsel which suggested that, while incarcerated in the Orange County Jail soon after his arrest, the defendant made incriminating statements to another inmate about the murders. The People also 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.”
The defense requested “additional information related to the relevant inmate regarding his background and criminal history.” The People resisted this request, arguing that “they did not intend to call that inmate as a witness.” However, the court granted the motion for discovery – and the defense got hundreds and then thousands of pages of discovery material.
Following lengthy continuances, the People conceded a Massiah motion (from Massiah v. United States, a 1964 case about excluding fraudulently obtained confessions) that agreed any statements made by the defendant to another inmate in the Orange County Jail “could not be offered against him at trial.”
On May 2, 2014, the defendant pleaded guilty to all felony charges and admitted to the special circumstances.
On March 15, 2015, the court issued a supplemental ruling in which it recused the entire staff of the Orange County District Attorney’s Office from further involvement in this prosecution. That recusal order was unanimously affirmed by the District Court of Appeal on November 22, 2016. California’s Attorney General thereafter became the prosecutor of record in this matter.
The judge notes that “the evidence produced during these hearings demonstrates the existence of serious misconduct committed by key elements of the prosecution team. This misconduct has required the court to impose increasingly severe sanctions in its prior rulings.”
He adds, “Now, in the face of what this court can best describe as chronic obstructionism by the prosecution team with respect to discovery compliance, this court is required to consider imposing an even more serious sanction. In order to impose such a sanction, this court must find that the prosecution team’s chronic discovery abuse has created a constitutional deprivation which compromises this defendant’s right to due process and a fair penalty trial.”
The judge writes that the court does not take this issue lightly and that the “defendant deserved swift and sure punishment for the terrible crimes he committed.” However, “This court believes that maintaining the integrity and viability of Orange County’s criminal justice system remains of paramount importance.”
Judge Goethals explains that “this court has been patient, perhaps to a fault, as it has awaited compliance by the prosecution team with its lawful orders.” He adds, “This court for some time maintained hope that the Orange County District Attorney and the Orange County Sheriff, in the face of objectively verifiable evidence, would accept the reality that for many years illegal activities occurred inside the Orange County Jail involving represented defendants and working informants.”
Instead of “accepting this court’s earlier findings and working to correct ‘the systemic problems’” the members of the prosecution team “chose to either deny, or ignore, these glaring illegalities. One of the apparent byproducts of this response has been the prosecution team’s chronic failure to comply with this court’s discovery orders.”
The judge notes that long after the court issued its discovery orders, “Sheriff’s 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.”
The court goes on to provide rather extensive accounts of false and misleading testimony provided to it.
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 that “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 Goethals 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?”
The judge notes, “During the course of the recent evidentiary hearing, the court also saw seven members of the Sheriffs sworn staff invoke their rights to remain silent pursuant to the Fifth Amendment of the United States Constitution. 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. 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 that “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 District Court of Appeal concluded, “[t]he magnitude of the systemic problems cannot be overlooked.”
Judge Goethals writes, “The truth is competent evidence has established beyond any reasonable doubt that … the OCSD, in its secondary capacity as county jailer, created and maintained a CI [Confidential Informant] program whereby it continued to investigate criminal activity in contravention of targeted defendants’ constitutional rights.”
The truth is ” … OCSD SHU [Special Handling Unit] deputy sheriffs operated a well-established program whereby they placed Cis, Perez and Moriel, next to targeted defendants who they knew were represented by counsel to obtain statements … There was also evidence the prosecution team explicitly or implicitly promised consideration in exchange for information and Perez and Moriel expected a benefit.”
The truth is “Fernando Perez, at the time of his placement next to this defendant, was an experienced and highly motivated informant who vigorously worked on multiple investigations within the Orange County Jail at the behest of his OCSD handlers in the hope that his pending life sentence would be reduced. After completing what Perez himself described as his ‘mission’ on this and many other cases, it was.”
The truth is that “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.”
The truth is that “the Orange County District Attorney 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.”
The judge writes, “[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.”
The truth is “that the Orange County District Attorney, in its June 9, 2016 ‘Press Release,’ conceded that the Orange County Sheriff’s Department engaged in significant misconduct involving the use of informants within its jail operations.”
The truth is that “thereafter OCDA failed to significantly follow up on its promise to address these ‘systemic problems.’”
And the truth is that “for whatever reason, the Orange County Sheriff’s Department has consistently responded to this court’s lawful orders with such indolence and obfuscation that this court has lost confidence that it can ever secure compliance from the prosecution team with those orders.”
The only question now is what happens with the sheriff and the Orange County DA. Will the state Attorney General’s office prosecute these individuals for criminal misconduct?
—David M. Greenwald reporting
A question. Had this degree of non compliance come from a civilian organization rather than a police force/ DA, what would have been the penalty for that non compliance ? If different from what has occurred with the Orange County Sheriff and DA, why do we allow such disparate treatment under the law ?
Joe Arpaio operated the most corrupt and oppressive sheriff’s department and jail system in America for 25 years. OC is not exceptional in its sheriff’s department and DA’s office operating unlawfully.
Such behavior among law enforcement is tolerated because they have the guns and authority to make your life miserable.
President Trump likes Joe Arpaio
Another one of your criminal heroes, Jerry? Trump sure associates with lots of them like Russian money launderer and mobster, Felix Sater.
Arpaio was recently convicted of contempt of court and faces 6 months in jail and fines. I hope the judge gives him the max. Just the kind of fascist you always claim to like, alright.
Tia: In a way you could argue that Judge Goethals had another stick to use here – he could have held the DA and Sheriff in criminal contempt. We’ll see if the AGs office is going to prosecute now.