In an apparently unprecedented decision for an Orange County death penalty case, a judge Thursday barred the District Attorney’s Office from further prosecution of Scott Evans Dekraai for the region’s largest mass murder.
Superior Court Judge Thomas M. Goethals stunned the Santa Ana courtroom with his decision to remove District Attorney Tony Rackaukas’ team from the coming death penalty phase of Dekraai’s trial for killing his ex-wife and seven others in 2011 at a Seal Beach beauty salon.
Goethal’s decision was based on months of testimony and records detailing alleged misuse by the DA’s office and Sheriff’s department of jailhouse informants and other ethical issues in the Dekraai and other criminal cases.
If upheld, the ruling would move Dekraai’s death penalty prosecution to the state Attorney General’s Office.
Scott Sanders, Dekraai’s lead attorney from the county Public Defenders Office and colleagues, uncovered the jailhouse informant and ethical issues. Sanders had urged Goethals to recuse the DA and block prosecutors from seeking the death penalty, because of alleged widespread abuses by law enforcement.
But Goethals ruled the state can seek the death penalty for Dekraai, adding he felt there was not sufficient legal grounds for him to make such a sweeping decision.
Sanders declined comment after the ruling.
However, Goethals’ ruling specifically noted the prosecution’s case was undermined when at least two Orange County sheriff’s deputies lied or intentionally withheld evidence from the court; he also cited a deputy district attorney for such malfeasance.
Tom Dominguez, president of the Association of Orange County Deputy Sheriffs, defended the deputies in a statement — blaming the DA and poor prior training in the Sheriff’s department.
In an expected appellate process, Dominguez said, the association believes it will be shown “the deputies testified to the best of their abilities.”
News Spreads Fast
Once the court session was over, word of the decision spread rapidly throughout the courthouse — with one defense lawyer yelling it from a balcony to a colleague below in the courthouse lobby.
So stunned was a defense attorney that the individual kept saying, “Wow,” again and again, almost unable to answer a question.
Daniel Wagner, an assistant district attorney in charge of the homicide division, told a news conference his agency is considering its appeal options, in conjunction with the Attorney General’s Office.
“We respectfully disagree with the ruling,” said Wagner, who then declined to discuss specifics, other than to say they believed the ruling wasn’t supported by the law.
Rackaukas did not appear before television cameras and microphones at the press conference.
A representative of the Attorney General’s office said his agency will assess its appeal rights. Goethals stayed his order until the prosecution and defense attorneys return to his court March 20.
Asked when was the last time a county DA in California was barred from prosecuting a death penalty case, Wagner said he couldn’t recall an instance. Court observers said they did not know of one in Orange County.
In an interview, Paul Wilson, the Long Beach husband of shooting victim Christy Wilson, 47, said Rackauckas is responsible for the court events.
“Tony Rackauckas has failed failed Orange County,” said Wilson. “He’s failed the eight people who were murdered that day.”
By allowing his staff to misuse jailhouse informants, Rackauckas caused families to have to continually relive the horror of that day of deadly shootings.
Dekraai, who he called a coward, is in the public spotlight, Wilson said, instead of the eight people he killed on Oct. 12, 2011 at Salon Meritage.
Those others who were killed are: Dekraai’s ex-wife Michelle Fournier, 48, salon owner Randy Fannin, 62; Lucia Kondas, 65; Michele Fast, 47; Victoria Buzzo, 54; Laura Elody, 46; and David Caouette, a 64-year-old man who was shot in his car.
Hattie Stretz, who was at the salon to visit Elody, her daughter, was shot but survived.
Judge Blasts Two Sheriff’s Deputies and a Prosecutor
In his eight-page ruling Thursday, Goethals determined the prosecution compromised the ability of Dekraai to have a fair trial with due process.
During the death penalty phase, Goethal’s ruling would limit prosecutors to only using information about the murders — along with victims’ family testimony — to show aggravation.
Under the law, prosecutors could have introduced other aspects of aggravation, like a past history of violence; but the judge swept that away because of prosecutorial violation of the defendant’s.
Last spring, Dekraai pleaded guilty to the killings.
But Sanders continued efforts to have the death penalty eliminated and the DA’s office taken off the case for unconstitutionally withholding evidence about jail informants.
The legal battles included an unprecedented evidentiary hearing that went for six months.
That hearing was re-opened last month to take more testimony — and produced the new evidence of violations that prompted Goethals’ ruling.
“Even at this late date, after more than two years of concerted effort by a team of the OCDA’s most experienced prosecutors,” Goethals wrote, “The court finds that the District Attorney lacks the apparent ability to achieve compliance with his constitutional and statutory discovery obligations in this case.”
In his initial ruling last August after the first phase of the evidentiary hearing, Goethals raised questions about the veracity of testimony from both law enforcement and deputy district attorneys.
He found there was misconduct by prosecutors and law enforcement, but could not determine it was intentional.
Still, he sanctioned the prosecution then by blocking the use of Dekraai statements and tapes in the trial’s penalty phase. Although, he denied the DA recusal request then, while allowing the death penalty to be pursued.
In that ruling, the judge wrote some officers of the court were “credibility challenged,” adding “others undoubtedly lied.”
At the time, Goethals did not name anyone; but Thursday that changed.
The ruling specifically named sheriff’s deputies Seth Tunstall and Ben Garcia and deputy district attorney Erik S. Petersen as individuals who were less than honest in their testimony.
Some of the judge’s harshest remarks were directed at Tunstall and Garcia — veterans of staffing the county jails and working with the special handling squads that monitored inmates both for safety and for intelligence.
It was noted they were at the heart of the jail informant network that operated largely secretly for years securing confessions or admissions for use by prosecutors.
It was this network and records of its intelligence gathering that are the core of Dekraai’s defense.
Goethals wrote that the prosecution and law enforcement continued to violate Dekraai’s constitutional right to evidence well beyond his August ruling.
He determined “the discovery situation in this case is far worse than the court previously realized.”
“After listening to their recent testimony, and comparing it to the prior testimony of both deputies,” the ruling said, “This court concludes that deputies Tunstall and Garcia have either intentionally lied or willfully withheld material evidence from this court during the course of their various testimonies.
“For this court’s current purposes, one is as bad as the other. This court will leave that evaluation to prosecutors employed by the executive branch of government.”
Key to this finding was a secret computerized system whereby jail deputies recorded, monitored and moved informants and inmates around.
A Sanders subpoena after the initial judge ruling disclosed this system of “TRED” notes — about which the two deputies were grilled last month.
A Sheriff’s Department statement after the ruling said: “Though we are disappointed, we take very seriously the opinion offered by Judge Goethals. We are gravely concerned and take any allegation or suggestion of untruthfulness very seriously.
“We will use the information brought to light during the court proceedings to serve as a roadmap for our ongoing internal investigation.”
Describing the history of wayward law enforcement testimony, Goethals also wrote:
“To perhaps clarify the record, this is not the first time during this protracted hearing that deputy Tunstall’s testimony lacked credibility.
“This court did not believe the testimony of either Tunstall or deputy district attorney Petersen when they unsuccessfully tried to shift responsibility for a serious discovery breach in another case to the shoulders of a former federal prosecutor.”
Those Goethal remarks relate to testimony last spring when Petersen and Tunstall claimed that Terri K. Flynn-Peister — then an assistance U.S. attorney prosecuting Mexican Mafia gang members — blocked evidence from being disclosed to defendants in Orange County Superior Court.
Flynn-Peister — now an Orange County Superior Court judge — testified in June that no such thing occurred.
Petersen has been unavailable for comment; in testimony last year, he denied any impropriety.
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]