In the final chapter of an unprecedented hearing in Orange County Superior Court, public defenders are seeking to use a recent federal court decision prohibiting the death penalty in California to win a life sentence without parole for convicted mass-murder Scott Evans Dekraai.
On Friday in Santa Ana before Judge Thomas M. Goethals, defense attorneys will argue only life sentences should be given to Dekraai — who pleaded guilty in May to the largest mass killing in Orange County history.
The Orange County District Attorney’s Office is seeking the death penalty for Dekraai, who acknowledged killing his ex-wife and seven others in 2011 shooting spree at a Seal Beach beauty salon.
During six months of an evidentiary hearing that is having far-reaching implications, public defenders have argued that the death penalty should be blocked because the Orange County District Attorney’s Office and law enforcement officers allegedly violated Dekraai’s constitutional rights by illegal use of jailhouse informants.
And now, with the hearing coming to a close, Dekraai’s lawyers might be the first in the state to cite a momentous decision on July 16 by U.S. District Judge Cormac J. Carney that the system for imposing the death penalty in California is so dysfunctional that it constitutes cruel and unusual punishment.
In that case, a Los Angeles man case was convicted in 1995 for the rape and murder of his girlfriend’s mother in 1992.
Carney’s ruling, issued in federal court in Santa Ana, is not precedential in California yet because it has not been affirmed on appeal. But in rare instances, like Dekraai’s, such decisions are cited.
In documents filed Wednesday, Dekraai’s attorneys asked Goethals “to find that the imposition of the death penalty in this case would be unconstitutional and to immediately sentence him to eight consecutive life sentences without possibility of parole.”
Carney, a former Orange County Superior Court judge, based his decision on the fact there are 900 people on California’s death row, but only 13 have been executed — in an arbitrary and capricious way — since 1978. His decision is under review by the state Attorney General’s Office and legal authorities say it likely could end up before the U.S. Supreme Court.
Regardless, the request is the latest dramatic maneuver by Dekraai’s lead Public Defender Scott Sanders, who has captivated the Southern California legal community with his arguments.
In 600 pages of motions filed in February, the defense argued that prosecutors used a secret network of informants to illegally secure information in violation of Dekraai’s right to a fair trial, due process and legal counsel.
In addition to blocking the death penalty, Sanders seeks to have Orange County prosecutors recused from Dekraai’s case.
For months, Sanders and his colleagues have intermittently called to the stand top prosecutors, Orange County Sheriff’s deputies, Santa Ana police and others to show what they contend is a pattern of prosecutorial rights abuses in the case of Dekraai and many others.
In this week’s motions, Sanders cited instances from the hearings where, he claims, false statements were made by authorities, perjury committed, a Superior Court judge falsely impugned as a liar, and inflammatory media statements made in April by District Attorney Tony Rackauckas that violated attorney professional conduct codes.
“The prosecution’s unwillingness to treat the defendant fairly has been demonstrated by efforts to illegally, unethically and deceptively” violate the defendant’s right, wrote Sanders.
Sanders also noted the Dekraai hearing revealed that 14 other defendants charged with serious crimes — including special circumstances murder — didn’t receive evidence to which they were entitled in their cases.
And two defendants facing death sentences also didn’t have evidence discovered to them as required.
The conviction and life sentence of one defendant already was vacated because of discovery failures.
Despite prosecutors conceding evidence discovery failures in several cases and dropping evidence obtained improperly from Dekraai, they argue there were no rights violations.
“There has been no misconduct in the investigation or preparation of the Dekraai case,” wrote senior deputy district attorney Howard Gundy. “In addition, the defendant has failed to demonstrate his ability to receive a fair penalty phase trial has been jeopardized as a result of government misconduct.”
In allegations first unveiled Wednesday, Sanders argued that newly uncovered evidence regarding a key informant against Dekraai further shows the need to recuse the entire District Attorney’s office.
The motion describes how just 10 days ago he learned of another case in which the informant, Fernando Perez, was caught allegedly trying to use heroin in a county jail in 2009.
After reviewing files in this new case involving 11 defendants, Sanders wrote that records on Perez clearly should have been discovered to Dekraai when the court ordered disclosure of all such cases. A number of defendants in other cases also did not get this particular discovery, Sanders added.
The records include two police reports on the allegations regarding heroin abuse by Perez, who wasn’t prosecuted for the drug offense, and a cellmate.
A deputy district attorney, Erik S. Petersen, who has drawn fire for failing to discover informant evidence in a number of cases, is the prosecutor in the newly identified case, wrote Sanders. And a sheriff’s deputy, Sgt. Seth Tunstall, who has been accused of aiding the withholding of informant discovery, authored one of the police reports in the new case, Sanders added.
Perez — a former leader in the Mexican Mafia from Santa Ana — has served as an informant for years after
his conviction, as his potentially long sentence was deferred by prosecutors to whom he provided jailhouse information.
The police reports and two associated letters “should have been discovered 18 months ago” to Dekraai’s defense team, Sanders wrote, so the information could be used during the testimony of Perez and law enforcement officers during the recusal hearing.
“The contents of the undiscovered reports and material, Tunstall and Petersen’s role in suppressing them, and the Dekraai prosecution team’s knowledge of the reports…are all relevant to the motion to dismiss the death penalty based upon outrageous government conduct and violation of due process,” Sanders wrote.
Sanders also is asking Goethals for a delay in the ongoing proceedings to further investigate these new documents.
“The fact there is still outstanding discovery is perhaps the most powerful evidence of why the District Attorney’s Office is unable to give Dekraai a fair trial and thus must be recused,” wrote Sanders.
“For the District Attorney’s Office, the fundamental issue that cuts to the core of both motions is the [office’s] willingness to engaged in concealment and deception — whether to obtain records or make it more difficult for the defense to get informant discovery, or to receive any advantage.”
After arguments Friday, Goethals may make some decisions from the bench, but he previously has said he will file a written opinion on the defense’s main motions in the coming week or so.
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 rexdalton@aol.com.