State AG Will Investigate Alleged DA Misconduct in Dekraai Case

The state Attorney General’s Office announced today it will conduct “an independent investigation” of alleged misconduct by Orange County District Attorney Tony Rackaukas’ office in the prosecution of mass murderer Scott Evans Dekraai.

In a three-paragraph statement, the office of Attorney General Kamala D. Harris said findings of “evidence discovery violations…are serious and demand further investigation.”

But at the same time, the attorney general said she would appeal the March 12 order by Orange County Superior Court Judge Thomas M. Goethals that Rackaukas’ entire staff should be recused from prosecuting Dekraai for the 2011 killing of eight people, including his ex-wife at a Seal Beach beauty salon.

In his eight-page order issued last week, Goethals described “a comedy of errors” by prosecutors as evidence repeatedly was withheld from Dekraai’s attorneys — adding that both law enforcement and a prosecutor testified dishonestly.

During an extraordinary hearing over the past year, Goethals wrote, Rackauckas’ office showed it could not balance its duties to properly provide evidence to the defense with its prosecutorial obligations — thereby creating a conflict of interest that deprived Dekraai of due process.

The DA’s office immediately disputed Goethals’ ruling and threatened to appeal, but ultimately deferred to the AG’s office, said Howard Gundy, a senior deputy DA on the Dekraai prosecution team.

The “recusal of the entire DA office is inappropriate,” said Theodore Cropley, a deputy assistant attorney general, during today’s proceedings.

After the AG’s announcement, Scott Sanders, the lead public defender for Dekraai, said: “We are looking forward to the findings of the Attorney General regarding misconduct in this case.”

For the past year, the AG’s office had an attorney every day in the courtroom “and, therefore, is already well acquainted with the deception and concealment that has plagued this case and culminated in the recusal,” Sanders added.

The appeal will further delay closure for the families of Dekraai’s victims. While Dekraai pleaded guilty last spring to the killings, he has fought for sentencing on his own terms. Sanders is seeking to block the death penalty in return for life without the possibility of parole.

The appeal means that it could be two or three years before Dekraai’s fate is decided.

This prompted some family members to sharply criticize Rackaukas personally and the court process in general during an emotionally charged hearing Friday — where victims families were allowed to address the judge.

Family testimony had added drama as Rackaukas himself was in court, along with a senior official from the AG’s staff.

The tension was such that additional Sheriff’s deputies were present both before and during the hearing.

As Rackaukas sat in the jury box, Paul Wilson — whose wife, Christy Wilson, was among Dekraai’s victims — told how three and a half years ago Rackaukas (“with a tear in his eye”) told him he “had my back.”

Today, Wilson of Long Beach said, “Tony, you have let me down. I am in total disbelief.” Speaking of the events that extended the legal proceedings, Wilson added: “None of this should have happened. I’m ashamed I have to be here years later.”

In added political sparks after the hearing, county Supervisors’ Chairman Todd Spitzer — an avowed foe of Rackaukas — showed up at the courthouse, regaling the press with criticism of the DA, his former boss.

After two years of fighting prosecutors for evidence records, Sanders filed a 505-page motion just over a year ago outlining how the DA’s office had withheld voluminous documents about a secret network of informants who allegedly violated defendant rights in county jails by securing criminal admissions, audio recordings, and/or intelligence details.

This motion prompted an historic hearing where Goethals heard six months of testimony from Orange County sheriff’s deputies who staff the jails, Santa Ana police detectives, other law enforcement officers and prosecutors.

As a result of the hearing testimony, three other defendants already have had serious charges and/or a life term vacated or shortened. And earlier this week, such evidentiary problems prompted a plea deal, where a fourth defendant is expected to get out of jail in a year or so, instead of facing life.

But last August in his initial ruling after the hearing, Goethals said that because of precedential court rulings, he only would make a decision on the offenses directly associated with Dekraai.

He then sanctioned prosecutors — blocking in the trial penalty phase the use of any statements or secret audio recordings jail informants had secured from Dekraai.

The prosecution’s actions did constitute misconduct in Dekraai’s case, Goethals ruled then, but they weren’t sufficient to meet Sanders’ requests that the death penalty be blocked and the entire DA’s office be recused.

Shortly after Goethals’ decision, a Sanders subpoena found that sheriff’s deputies had failed to disclose important evidence of a secret computer system used to chart inmate and informant movements in county jails. [Under court precedents, prosecutors are responsible for law enforcement evidence disclosures.]

Last month, Goethals reopened testimony of the evidentiary hearing, where Sanders recalled sheriff’s deputies to testify about the “TRED” inmate monitoring system.

In his March 12 ruling, Goethals wrote it was “crystal clear” that experienced sheriff’s deputies who testified knew of the TRED system and that they “intentionally lied or willfully withheld material evidence from the court.”

Goethals also wrote: “there is no direct evidence to suggest that the District Attorney actively participated in the concealment of this information from the defense and the court.”

But in arguments that day before Goethals issued his ruling, Sanders described how the three-man prosecution team — including Daniel Wagner, the head of the DA’s homicide division — sat silently through days of law enforcement testimony that they had to know was false and/or misleading.

The hearing showed “massive amounts of perjury and obstruction of justice,” Sanders said, “the most deplorable lies I’ve ever seen.”

Prosecutors “sat on their hands,” Sanders said, when “there were hundreds of opportunities” to speak up to correct the record.

Thereafter, Goethals noted in court that the continued pattern of evidentiary subterfuge — particularly after his August ruling — led to his decision that Dekraai’s rights to due process for a fair trial were violated.

A tentative date for the penalty phase of the trial was set for July 24, although that is expected to be delayed.

Please contact Rex Dalton directly at rexdalton@aol.com

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  • Paul Lucas

    This doesn’t make sense? She is going to investigate the misconduct but doesn’t want to take over the dekraai case? WTF?

    • David Zenger

      It’s a death penalty case.

      • Paul Lucas

        How does that make a difference?

        • David Zenger

          I doubt if Harris is pro death penalty, but even if she is, why try the penalty phase when the guy has already pleaded guilty? If she wins a death penalty conviction she would alienate the lefties; if she lost she would alienate both left and right and center, too.

          I can’t say I blame her. Rackaukas has screwed this up so badly nobody is going to want to touch the big, steaming pile he has left behind. This is going to last for years and cost a lot of money – both for prosecution and defense.

  • Cynthia Ward

    Oh boy have we got a BIG box of documents to ship to Harris’ office, from the Fair Board to Pulido, his behavior in Dekraai is certainly ugly enough to finally get attention but it is far from his worst work. Anyone else starting to feel like the golden glow once enjoyed by the Kleptocracy is fading fast?