Judge in Dekraai Murder Trial Defends Uncovering Sheriff and DA Misuse of Jailhouse Informants

Joshua Sudock/OC Register

Orange County Superior Court Judge Thomas Goethals during a court hearing.

Judge Thomas Goethals Wednesday defended his decision to let Assistant Public Defender Scott Sanders use Scott Dekraai’s mass murder trial to ask broader questions about the Sheriff’s and District Attorney’s use of jailhouse informants.

“It’s the integrity of this system, that the community depends on to support the rule of law, [which] is more important than anything,” Goethals said during the fourth day of a hearing to address how the Sheriff’s Department handled evidence in the Dekraai case. “And so if this court makes lawful orders and somebody doesn’t comply, I will be hard-pressed to ignore it.”

Deputy Attorney General Michael Murphy, who is prosecuting Dekraai after the District Attorney’s office was removed by Goethals, expressed frustration with the scope of the hearing. He said while the question of the Sheriff’s compliance with discovery orders is relevant, it’s not the job of the court to investigate the policies and practices of the department.

“The only thing left to do in this case is to have a jury decide what penalty is the appropriate punishment to someone who has confessed,” Murphy said. “Nothing the Sheriff has done or not done…is going to undermine the fact that the defendant confessed to these killings.”

Five years after Dekraai admitted to fatally shooting eight people at a Seal Beach beauty salon in 2011, his case is still winding through the courts, as allegations of illegal use of jailhouse informants by prosecutors and the Orange County Sheriff’s Department has Goethals weighing whether Dekraai’s rights were violated so egregiously that he should dismiss the death penalty altogether.

“It is likely that if this case had been prosecuted (by the DA’s office) in a basically competent way at the outset, Mr. Dekraai would be living on death row in San Quentin,” said Goethals, who dismissed the entire DA’s Office from the Dekraai case in 2015 after ruling prosecutors failed to turn over key evidence to the defense.

Over the past several months, Goethals has expressed frustration with the pace at which Sheriff’s officials have responded to subpoenas for documents, even threatening to hold Sheriff Sandra Hutchens in contempt of court if records were not produced. Sanders has also accused the department of withholding and delaying the production of documents, and even shredding some records, related to the use of jailhouse informants and that should have been provided to the court.

“Are there lawful orders in place? Yes. Has the Sheriff complied with them in a timely fashion for the past few years? No,” Goethals said. “And that brings us to the next question, ‘why not?’”

Why the Sheriff hasn’t complied with the orders is the central question of the hearing, where on Wednesday Sheriff’s Deputy Seth Tunstall and Lt. Dave Johnson both invoked their Fifth Amendment right against self-incrimination, becoming the third and fourth Sheriff’s Department employees to do so in this proceeding.

“I would say it is disappointing at best, that an active duty Orange County Sheriff’s mid-management supervisor who comes into court wearing uniform and is currently still employed in the jail…feels compelled to invoke his Fifth Amendment right,” Goethals said of Johnson. “I don’t know what that says about what’s going on across the street (in the Sheriff’s Department.)”

Johnson’s attorney, Jan Christie, who is representing several Sheriff’s deputies, said Johnson’s invocation of the Fifth Amendment is not an acknowledgment of guilt.

“The Fifth Amendment is there to be used by innocent people who may be caught up in the controversy,” Christie said. “We’re certainly denying any guilt.”

All four Sheriff’s personnel who have invoked their Fifth Amendment privilege have worked in the unit that deals with jail informants, known as Special Handling, and have knowledge of the special handling log, an electronic document of notes kept by special handling deputies.

Tunstall’s decision to take the Fifth was not unexpected.  In a 2015 ruling, Goethals wrote that Tunstall and fellow deputy Benjamin Garcia “either intentionally lied or willfully withheld material evidence from this court” in previous testimonies about the existence of TRED, an internal Sheriff’s Department system for tracking inmates. He also invoked his Fifth Amendment privilege in another trial.

While Tunstall avoided testifying, Johnson answered questions after the judge granted a request by Murphy to give Johnson immunity from prosecution based on his testimony.

Johnson testified the special handling log existed before he served as a special handling deputy between 2004 and 2006. He was unsure whether it still existed or whether he revived its use among deputies when he returned to the unit as a sergeant in 2008.

He also claimed, despite memos written by special handling deputies that suggest the unit cultivates, recruits and manages jail informants, that the unit does not engage in those activities, but rather acts as a “facilitator” between informants and investigators for the department or outside agencies.

Toward the end of the hearing, Goethals said he was skeptical of Johnson’s testimony.

“The fact that a witness may deny something doesn’t mean I find it credible,” Goethals said. “This witness has some credibility challenges.”

Goethals referred to a memo that once hung on the wall of the Special Handling office, which instructed deputies to “cultivate and recruit” informants.

“That memo, which I’ve read many times, also indicates that it was hanging on the wall in the Special Handling office, and this witness says he never saw it even though he was the sergeant for two years,” Goethals said. “I’m not as dumb as I look.”

Contact Thy Vo at tvo@voiceofoc.org  or follow her on Twitter @thyanhvo.

  • OCservant_Leader

    Thank you Judge Goethals for doing YOUR job as a public servant. Bravo!

    The pressure from the OC Criminal Family is intense and I am bewildered by the Deputy Attorney General Michael Murphy’s comments to the good Judge regarding the cheating scandal and the violation of the murderer’s rights according to our CONSTITUTION. Sir…you are flat wrong!

    The cheating from the DA & Sheriif has nothing to do with this case? Oh Really? So you are part of the corruption now too? Sir How are YOU connected to this Family? Your comments are not based in LAW of our land so who the h*ll do you think you are fooling with your double talk?

    Judge Goethals throw the criminals from the DA & Sheriiff in jail! Any Deputy who takes the 5th regarding corruption should be fired. They are protecting themselves and do not represent the interest of us – the taxpayers.

  • verifiedsane

    Come on now….Dekraai is never going to be executed in California….Whether the death penalty is taken off the table now or later…the DA’s and Sheriff’s illegal denial of basic rights, the withholding and destruction of evidence, and their criminal perjury will stop any execution happening in the higher court appeals process…Goethals needs to make a decision & drop the hammer on the DA’s office and Sheriff’s now. The court is well aware how this fiasco (and others) have severely damaged the public trust and faith in our judicial system. (as the old adage reflects) it’s now time to sh*t or get off the pot.

    • LFOldTimer

      The DA and OCSD didn’t pursue the death penalty to promote justice. As we all know the death penalty is for all intent and purposes dead in California. It just puts another warm body on death row who will eventually die of natural causes – at HUGE expense to the pubic.

      The DA and OCSD pursued to death penalty for self-adulation and selfish purposes. it was a slam-dunk case that they screwed up royally bringing extreme embarrassment to the County of Orange.

  • LFOldTimer

    Judge Thomas Goethals is a hero for standing up to the bullies in the DA’s office and OCSD. He should receive a Medal of Honor for his efforts since it is so unusual for a judge to have the courage to challenge these hypocritical bullies who are represented by the powerful public safety unions.

    “It’s the integrity of this system, that the community depends on to support the rule of law, [which] is more important than anything,” Goethals said……”

    It’s reassuring to Know that we have at least one sitting Judge in Superior Court who is willing to publicly state that his primary interest is to defend the integrity of our justice system. Not only does he mouth the words, he walks his talk.

    Oh, and to DAG Murphy – it is the obligation of an appointed or elected judge to protect the integrity of his courtroom and our very justice system. Shame on you for implying that Judge Goethals should turn a blind eye to egregious wrongdoings that occurred before his very eyes inside his courtroom. Who exactly are you trying to protect? The interests of the People or the interests of the elite sworn officials who are turning our justice system into a laughing stock?

    “The Fifth Amendment is there to be used by innocent people who may be caught up in the controversy,” Christie said. “We’re certainly denying any guilt.”

    Oh stop it. It’s common knowledge that people take the Fifth on the witness stand because they have something to hide and do so to protect themselves from legal harm.

    Providing sworn testimony in a court of law is a basic fundamental DUTY of any sworn cop – just like changing engine oil is a duty of a car mechanic or making a ham and egg breakfast is the duty of a short-order cook at Denny’s. If the cop REFUSES to perform one of his fundamental DUTIES he should be FIRED – just like the car mechanic or the cook would be if they refused to perform theirs.

    There should be NO constitutional protection for any worker to keep his or her job if they REFUSE to perform a basic fundamental duty that is part and parcel of their job description!!!!

    We pay cops north of $200,000 in compensation to perform the duties that they agreed to when they hired on. If they REFUSE – FIRE THEM!!!

    But Hutchens not only fails to FIRE THEM – she PROTECTS THEM which makes Hutchens worse than they are – since she’s supposed to be the one with the HIGHEST OF INTEGRITY in county LE!!!

    “Goethals referred to a memo that once hung on the wall of the Special Handling office, which instructed deputies to “cultivate and recruit” informants. That memo, which I’ve read many times, also indicates that it was hanging on the wall in the Special Handling office, and this witness says he never saw it even though he was the sergeant for two years. I’m not as dumb as I look”.

    Apparently Hutchens is that dumb as she allows her jail supervisors making the big bucks climb up on the witness stand and say these things without taking any action.

  • RyanCantor

    “The Fifth Amendment is there to be used by innocent people who may be caught up in the controversy,” Christie said. “We’re certainly denying any guilt.”

    Uhhhhhhh, no. No it is not. It explicitly is not.