Scott Dekraai, accused of killing eight people in a Seal Beach beauty salon, listens while his attorney, Assistant Public Defender Scott Sanders, addresses the court in a hearing last year. (Photo credit: pool)

An unprecedented hearing on alleged prosecutorial misconduct in the case of convicted killer Scott Evans Dekraai concluded Thursday — with a decision set for Monday on whether the death penalty can be sought, and what agency will seek to punish Orange County’s largest mass murderer.

After six months of intermittent testimony, Superior Court Judge Thomas M. Goethals will rule on requests by Dekraai’s public defenders that the death penalty be taken off the table because of alleged violations of his constitutional rights; and that the state Attorney General’s Office should take over prosecution because Dekraai can’t receive a fair trial in the penalty phase.

In May, Dekraai pleaded guilty to gunning down his ex-wife and seven other people in 2011 at a Seal Beach beauty salon. His plea came after prosecutors agreed not to use tape recordings of Dekraai discussing the crime with a jailhouse informant; evidence at the heart of the defense’s case.

During a full day of closing arguments Thursday in Goethals’ Santa Ana courtroom, the defense and prosecution continued to the bitter end with their impassioned opposing opinions on how to deal with the Huntington Beach man’s penalty.

Life without the possibility of parole, as Dekraai is seeking; or death as prosecutors want.

As a former prosecutor, defense attorney and seasoned judge, Goethals said, the evidentiary proceeding on the defense allegations “was unlike any other hearing I have participated in.”

Indeed, the judge and attorneys said they knew of no other California capital case where a defendant sought to avoid the death penalty based on prosecutors allegedly violating evidence disclosure requirements.

The path to Monday’s decision began in February when Scott Sanders, Dekraai’s lead public defender, filed about 600 pages in motions contending that prosecutors and law enforcement engaged a network of informants to secretly gather information from defendants in county jails in violation of their rights to due process, a fair trial and/or legal counsel.

A long-time jailhouse informant in that system, Fernando Perez, was instrumental in capturing information from Dekraai in an adjacent cell, including 150 hours of secret tape recordings about the shooting spree.

The activities of Perez — who called his informant services a job, which went on for years as he sought favorable treatment with a potentially lengthy sentence — led defense attorneys to uncover numerous other instances of questionable use of informants and failures to disclose details as required. One life sentence and murder conviction already has been vacated because of hearing disclosures.

Sanders then sought to use this purported litany of offenses by county prosecutors to recuse the entire District Attorney’s Office.

“It is all about trust,” said Sanders — describing how defendants must rely on an enormously powerful prosecutorial office to disclose to the defense important evidence so defendants can have a fair trial.

Sanders claimed prosecutors consistently violated that trust involving evidence from Perez and the informant network functioning in the murky, dangerous confines of the jails.

To Sanders, the prosecutors and law enforcement engaged in repeated instances of hiding relevant information from defense attorneys.

“The justice system was totally perverted,” Sanders argued.

Not so, responded Howard Gundy, a senior deputy district attorney who argued the prosecution’s case Thursday.

There were “innocent” and “accidental” mishaps regarding evidence, Gundy said, insisting “nothing was done in bad faith…nothing outrageous or flagrant.”

Gundy acknowledged testimony during the hearing uncovered a number of errors, where prosecutors failed to turn over evidence to defendants; prompting letters to be sent to convicted inmates about evidence disclosure irregularities.

And he noted shortcomings by prosecutors — like Dan Wagner, a co-prosecutor of Dekraai and head of the homicide division, who testified he didn’t understand evidence discovery laws.

However, it was Gundy’s position that prosecutors have substantial discretion on the timing and materiality of what evidence is given defendants.

Prosecutors could hold back disclosures and fight to block release of evidence as they wished, Gundy argued, therefore, there was no violation of Dekraai’s rights to evidence.

And all Orange County prosecutors needed were some “better practices” to ensure defendants eventually did get their constitutionally required evidence disclosures.

But Goethal took exception to the extent of Gundy’s argument about only needing better practices, saying “that is problematic for me.”

And Goethals added it “gets very squishy” when the prosecution argues — as Gundy did — that defendant rights still are protected with late or post-conviction evidentiary disclosures.

Defendants have a constitutional right to receive the potentially helpful evidence when the case arises against them, Goethals said. And prosecutors have an explicit duty to provide that evidence then, he said.

And Sanders argued the potential abrogation of that right was at the core of the case — which he noted revealed lying, perjury and completely unbelievable excuses for evidentiary failures.

The prosecution’s position “is a house of cards,” Sanders said, “it all falls apart in the details.”

But court cases cited during Thursday’s arguments indicate Dekraai’s attorneys have a high legal bar to eclipse to win either of their requests — for no death penalty, and/or recusal of the DA’s office from the case.

As an example, Goethals noted a decision early last month by the state Fourth District Court of Appeal in Santa Ana that even “abhorrent” acts by government officials doesn’t constitute outrageous conduct.

In that case, an inmate in county jail for possession of child pornography was beaten to death in 2006 by inmates — who wrongly believed he was a child molester — in full view of sheriff’s deputies.

“The fact OCSD deputies allowed an inmate manufactured assault does not establish outrageous government conduct barring prosecution,” wrote Justice Kathleen E. O’Leary in the decision.

And in a July 18 motion, the Attorney General’s Office argues that the district attorney should not be recused from prosecuting Dekraai.

A defendant’s allegations “must be particularly persuasive” to recuse the entire district attorney’s office, said the motion by Theodore M. Cropley, a deputy attorney general who attended the hearing.

“In this case, Dekraai has failed to show that any potential misconduct on the part of law enforcement rises to the level of requiring the recusal of the entire OCDA.”

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

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