Spitzer Challenges DA After Ruling in Dekraai Case

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District Attorney Tony Rackauckas is drawing sharp questions from County Supervisor Todd Spitzer for arguing that budget pressures triggered his prosecutors’ failure to turn over potentially helpful evidence to defendants.

A Superior Court judge ruled this week that the DA’s office failed to disclose required evidence and “did engage in misconduct” in its prosecution of convicted mass murderer Scott Evans Dekraai.

Rackuackas has attributed much of the disclosure issues – which were also found in several other criminal cases – to gang prosecutors being overworked with large caseloads.

But Spitzer argues the explanation doesn’t add up.

County supervisors, who oversee the DA’s budget, hadn’t been warned of any workload issues in DA’s gang unit, Spitzer said this week.

“We allocate resources, and yet we are now being used as an excuse for prosecutorial misconduct,” Spitzer said at Tuesday’s county supervisors meeting, adding that the misconduct “could be a very dramatic black eye on the County of Orange.”

“I have voted for every single request by the district attorney’s office since I’ve been here. Every single request,” said Spitzer, emphasizing his words from the public dais.

“We’ve never been requested…since I’ve been here for a year-and-a-half, for additional resources for gang prosecution. In fact, the Toyota settlement resulted in millions of dollars” to supplement the DA’s gang prosecutions.

“So where is all that money? And why is the county being blamed for a failure to allocate resources?” asked Spitzer, who is rumored to be gearing up to run for district attorney in 2018.

DA Spokeswoman Susan Kang Schroeder said Spitzer’s attacks were completely irresponsible.

“It’s typical ready, fire, aim by Todd,” said Kang Schroeder. “It’s so shameful that he would take advantage of a mass murder. He’s trying to manipulate this for his own political gain and his vendetta against the DA’s office.”

Kang Schroeder said when Rackauckas mentioned resource issues contributing to problems in disclosure in criminal cases, he was highlighting the challenges of balancing resources inside the DA’s office saying one prosecutor had taken on too many cases.

“He never mentioned the board of supervisors,” she said.

While “there’s always healthy tension between the DA wanting more resources and the supervisors,” she added that the problems in Dekraai case were not based in budgetary pressures.

In his ruling Monday, Judge Thomas M. Goethals said that while caseloads are heavy for both prosecutors and public defenders, it’s not a valid excuse to withhold potentially helpful evidence from defendants.

“This court has been unable to locate any authority, and counsel has cited none, which forgives or excuses a prosecutor’s failure to comply with constitutional mandates due to a lack of government resources,” Goethals wrote.

He also ruled that some law enforcement officials lied when testifying under oath during a recent hearing on the disclosure issue and a controversial jail informant program.

“These witnesses include current and former prosecutors, as well as current and former sworn peace officers. Some perhaps suffered from a failure of recollection. Others undoubtedly lied,” said Goethals.

In a news conference after the ruling, Rackauckas acknowledged that mistakes and failures occurred, but said he doubted that his staff lied.

The revelations have prompted the DA’s office to re-train prosecutors on their legal obligations, he added.

The judge also dismissed the DA’s other explanations for the disclosure issues: not understanding the law and a federal prosecutor blocking evidence.

“Prosecutors must, even in the absence of any request by the defendant, turn over to the defense all materials which either hurt their case or help the defendant’s cause,” Goethals wrote, citing the landmark U.S. Supreme Court decision in Brady v. Maryland.

“These rules are not complicated,” Goethals added. “The prosecutors called to testify are among the most experienced lawyers in the Orange County District Attorney’s office.”

One example cited by the judge was Deputy District Attorney Erik S. Petersen, an “experienced prosecutor” who said his normal practice was to request evidence from law enforcement just before trial and provide it to the defense without reviewing it.

“As a result of this ‘hands off’ process, this senior [deputy district attorney] testified that he never noticed that on one case he had provided four pages of Brady discovery while on another, involving the very same informant, he provided one hundred ninety six pages,” Goethals wrote.

“Such a cavalier attitude toward the constitutionally required Brady procedure is patently inappropriate and legally inadequate.”

Goethals also had harsh words for the senior prosecutor on the Dekraai case: Dan Wagner, head of the homicide division.

Had Wagner conducted “any reasonable exercise of the type of due diligence required” about an informant, then “the current hearing might not have been necessary,” Goethals wrote.

(Click here to read the full ruling.)

The misconduct unearthed in the recent hearing is expected to lead to a host of costly court challenges.

Hearing testimony identified 16 defendants, including two death penalty defendants, who public defender Scott Sanders alleged did not receive proper disclosures of evidence gathered by a jail informant.

Re-trials in such cases “re-victimize victims” and lead to a “substantial” monetary costs to taxpayers, Spitzer said.

Spitzer this week also directed county CEO Mike Giancola and Chief Financial Officer Frank Kim to ask the district attorney’s office about the workload claims.

“Find out what they need to comply with the law, and present that to us as a board so we can decide whether or not we need to allocate additional resources,” he said.

“I certainly hope that the excuse of ‘failure to allocate resources’ was a misstatement under a lot of pressure, as opposed to being reality.”

You can reach Nick Gerda at ngerda@gmail.com, and follow him on Twitter: @nicholasgerda.

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