An unprecedented hearing on allegations of misconduct by the Orange County District Attorney’s Office in the prosecution of Scott Evans Dekraai was re-opened Friday for testimony on new claims of evidence suppression.
Orange County Superior Court Judge Thomas M. Goethals had been planning to hear closing arguments in his Santa Ana courtroom after months of testimony on allegations by Dekraai’s public defenders that prosecutors had withheld important evidence on informants.
But it became clear he would have to call for more testimony in a hearing now scheduled for Tuesday after Dekraai’s lead public defender, Scott Sanders, said he had just learned of new evidence involving a key informant that was not given to the defense as the judge had ordered 18 months ago.
Dekraai pleaded guilty in May to killing his ex-wife and seven others in 2011 in a Seal Beach beauty salon, the county’s largest-ever mass murder.
In the hearing, which stretches back to February, Dekraai’s attorneys have alleged that prosecutors with the Orange County District Attorney’s Office violated the constitutional rights of Dekraai and other defendants by using a network of jailhouse informants against them.
They seek to have the DA’s Office recused from prosecuting Dekraai, and want the judge to eliminate the death penalty as a remedy.
The new evidence presented Friday involves police reports of heroin abuse in a county jail in 2009 by the informant, Fernando Perez, who got prosecutors information on defendants.
Also during the hearing, Goethals denied Sanders’ request that Dekraai be sentenced to eight life terms without parole based on a July 16 ruling by a federal judge in Santa Ana to strike down the death penalty in California.
U.S. District Judge Cormac J. Carney wrote that the system for rendering the death penalty in California is so dysfunctional it amounts to cruel and unusual punishment. That case involved a Los Angeles man facing death for the 1992 murder of his girlfriend’s mother.
Carney’s decision is not now precedential, as it has not been affirmed by the appellate court. But Sanders sought to capitalize on the ruling and argue it could be applied in Dekraai’s case.
But Goethals said it was premature to apply Carney’s decision to Dekraai, even though he was in agreement with “many of [Carney’s] observations” in the ruling, and went so far as to say that Carney is a personal friend of his.
“I respectfully decline” to take the death penalty “off the table at this time” for Dekraai, said Goethals, “to see how this will percolate in the future.”
Opining from the bench, Goethals said that the Carney opinion sets the stage for intriguing political and legal decisions regarding a state appeal.
Normally, the state Attorney General’s Office would appeal such a ruling. But Goethals — and others — have speculated about reports that Attorney General Kamala Harris and Governor Jerry Brown are weighing options.
If the state doesn’t appeal the decision, Goethals said, “I don’t know what will be the impact on the death penalty.”
Regardless, Goethals’ ruling made it clear that his decision on whether Dekraai should get the death penalty will be based on the evidence put forth in the hearing.
Sanders and his colleagues have asserted that prosecutors failed to properly discover evidence to at least 14 defendants.
In the new case involving informant Perez, Sanders said he learned of it from an investigator about 10 days ago.
“This is a very strange situation to find ourselves in,” said Goethals. “Frankly, I don’t understand how these documents [police reports] washed ashore.”
Howard Gundy, a senior deputy district attorney, said his office knew nothing about the new reports involving Perez, adding the information was of marginal value.
But the reports on Perez clearly troubled Goethals, who interrupted Gundy and read to him landmark court decisions that affirm prosecutors have a distinct duty to discover materially relevant evidence — including that from law enforcement agencies.
Gundy told Goethals that the new case involving Perez was not a state case prosecuted by the District Attorney’s Office, but a federal case. [County prosecutors uphold state law.]
Gundy acknowledged the investigation began in county jail and was investigated by an Orange County sheriff’s deputy — Sgt. Seth Tunstall, who also serves as a federal agent — but then was referred to the U.S. Attorney’s Office for prosecution.
But Sanders argued it made no difference if it was a state or federal prosecution, the material still should have been discovered to Dekraai and other defendants.
In a hypothetical example for discussion, Goethals noted that a prosecutor could divert sensitive evidence from being discovered to federal prosecutors to block disclosure to state defendants.
Sanders then agreed.
During questioning and in legal filings, Sanders has accused Tunstall of suppressing discovery evidence that is at the heart of assertions of outrageous prosecution misconduct.
Goethals noted he received a document today in which Tunstall acknowledged being the author of the newfound police report.
Sanders said this report is extremely important as it could have led to a third-strike prosecution of Perez — which would have largely eliminated his usefulness as an informant.
But Perez was never prosecuted for being caught with a syringe and heroin in his county jail cell. Additionally, the newfound documents include a letter with Perez bragging about his ability to violate laws in jail.
For years, Perez has served as an informant after prosecutors didn’t pursue sentencing him for an earlier conviction that could have led to a long prison term.
Confronted with these events, Goethals ruled prosecutors and defense attorneys can call Tunstall; Erik S. Petersen, a deputy district attorney involved in both state and federal prosecutions involving Perez; and Dan Wagner, the assistant district attorney who heads homicide prosecutions and is a co-prosecutor of Dekraai.
After limited testimony, Goethals said he will shortly thereafter hear closing arguments on Sander’s motions for relief for Dekraai.
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 [email protected]