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An unusual hearing will start today in Orange County Superior Court, with the credibility of leading homicide prosecutors in the county district attorney’s office on the line.
Inmates from the Mexican Mafia are expected to testify before Judge Thomas M. Goethals about their work as informants in county jails, with the judge ultimately deciding whether prosecutors violated the rights of Scott Evans Dekraai, who stands accused of the largest mass murder in Orange County history.
The stage was set for this potentially dramatic testimony last month when the county public defender’s office requested that the district attorney’s office be recused from prosecuting Dekraai, who is accused of gunning down eight people in a Seal Beach hair salon in 2011.
If Goethals grants such a rare request, the state attorney general’s office would step in to prosecute Dekraai.
Public defenders also are asking Goethals to rule out the death penalty for Dekraai because of violations of his rights to due process, a fair trial and right to counsel.
In motions totaling nearly 600 pages, Scott Sanders, Dekraai’s lead public defender, described an informant system that worked as an intelligence-gathering operation, allegedly disregarding defendants’ constitutional rights.
Sanders argues that voluminous records about the jail informant system should have been provided to the Dekraai defense team but were withheld by prosecutors for months.
For a March 7 hearing, prosecutors filed an 87-page rebuttal against both the recusal request and the elimination of the death penalty, arguing that the defense allegations are false and Dekraai’s rights weren’t violated.
Defense attorneys have “failed to show that members of the Dekraai [prosecution] team, either individually or collectively, engaged in outrageous or egregious misconduct,” wrote Stephan Sauer, a deputy district attorney.
Dan Wagner, who is the assistant district attorney leading the agency’s homicide section and the senior Dekraai prosecutor, described in the document how his team sought to use an informant to obtain information from Dekraai without violating his rights.
Sanders’ motions specifically named Wagner and a co-prosecutor, Scott Simmons, for removal from the case.
Among the informants expected to take the stand Tuesday is Fernando Perez, known initially as “Inmate F,” who has served for years as an informant in county jails, including a key role in the Dekraai case.
Public defenders’ questioning of Perez will likely delve into how he ended up placed next to Dekraai in isolated cells, his interactions with law enforcement officers and notes he took.
In the March 7 document, the prosecution team acknowledged that the “decision not to disclose [Perez’s] full informant history was based on a misunderstanding” of the relevant case law.
But Wagner “honestly believed [Perez’s] informant history was irrelevant,” the document states. “Moreover, Wagner’s good faith opposition” to the public defender discovery requests “can not be construed as a deliberate attempt to withhold evidence that Wagner” knew to be helpful to the defendant.
The recent filings are the latest in a protracted battle between defense and prosecution lawyers over relevant documents, with the prosecution ultimately providing about 5,000 pages and 1,000 hours of recordings involving Perez alone, records show.
Sander’s motions also allege a pattern of multiple prosecutors systematically failing to properly disclose documents and activities in at least nine cases over a period of years. These allegations involve some 20,000 pages of records, about which there may be debate during the course of the hearing.
Because of the prosecution’s conduct in the Dekraai and the other cases, Sanders argues that the district attorney’s office cannot be trusted to provide documentation for his client to receive a fair trial.
Meanwhile, officials in the state attorney general’s office in San Diego have filed a document asking Goethals to deny the Dekraai request to recuse Orange County prosecutors.
Robin Urbanski, a deputy attorney general assigned to the case, argues in the Feb. 28 document that to recuse an entire prosecutorial office “a defendant’s showing of grave conflict of interest must be especially persuasive.”
She wrote that the defense’s request is based on “speculation,” is not supported by “admissible evidence” and therefore should be denied. The hearing starting today is expected to address that issue.
Although it is rare for a judge to remove a prosecutor from a case, Goethals has shown that he is willing to take that step if evidence supports it.
Last week, in a case that in several ways mirrors Dekraai’s, Goethals removed a deputy district attorney, Erik Petersen, from the prosecution of three men. A spokeswoman for prosecutors would not comment after the recusal.
The three defendants, who are part of a Mexican Mafia case, face assault-related charges for allegedly beating up another inmate last year in the county’s Theo Lacy Jail in Orange.
Goethals ruled that Petersen, one of the office’s more seasoned prosecutors, intentionally withheld discovery records from the defense but added Petersen was not malicious.
This came after Petersen told the court he would not use as a witness an informant, Brian Ruorock, associated with the disputed discovery.
But this concession wasn’t sufficient for Goethals. A new prosecutor is to be in court on April 18 with a new trial set for April 29.
Rudolph E. Lowenstein, a Tustin attorney representing Marcus Allen Jefferies, one of the men being prosecuted by Petersen, said the withdrawal of the informant’s testimony “gutted” the prosecution’s case.
Lowenstein and other defense attorneys with decades of practice said they could not recall such a prosecutorial recusal.
The recusal was doubly embarrassing as it was part of the first prosecution in the high-profile Operation Smoking Aces, in which state and federal officials last September indicted 129 individuals allegedly involved in Mexican Mafia gang and narcotics violations.
The Smoking Aces probe was preceded in 2011 by Operation Black Flag, which led to the indictment of about 100 individuals in Orange County and elsewhere. A number of the inmates and informants cited by Dekraai’s defense attorneys are associated with those Mexican Mafia investigations.
After last week’s legal skirmishing, Lowenstein said, “I may have primed the pump,” for the coming Dekraai decision.
Rex Dalton is a San Diego-based journalist who has worked for the San Diego Union-Tribune and the journal Nature. You can reach him directly at firstname.lastname@example.org.