It’s been more than a month since an Orange County Superior Court judge’s stinging allegations of prosecutorial misconduct and perjury by county prosecutors and sheriff’s deputies prompted Attorney General Kamala D. Harris to announce she would be launching an “independent” investigation.
But while Harris has yet to offer any specifics on how she plans to proceed, legal experts are questioning whether the AG office’s heretofore involvement in the case precludes her from conducting a reliable investigation.
And some, including UC Irvine School of Law Dean Erwin Chemerinsky, are instead calling for a wholly independent probe into the DA’s office that does not involve the AG.
On March 12, Judge Thomas M. Goethals ordered that District Attorney Tony Rackauckas be barred from prosecuting mass murder Scott Evans Dekraai because prosecutors continually withheld evidence from the defense — therefore preventing a fair trial.
In 2011, Dekraai executed his ex-wife and seven others in a Seal Beach beauty salon, in the largest single murder case in Orange County history.
In his order, which dictated that the AG’s office take over the case, Goethals described the prosecution of Dekraai as “a comedy of errors,” with the DA team overseeing repeated instances of evidence violations; where at least one deputy district attorney and two sheriff’s deputies lied or withheld evidence from the court.
In the days following Goethals’ ruling, Harris announced her intention to investigate Rackauckas’ office, but also said her agency would appeal Goethals’ decision to the 4th District Court of Appeal on behalf of the DA.
Harris’ dual announcements, which coincided with her emergence as the leading Democratic candidate to replace retiring U.S. Sen. Barbara Boxer, sent shivers through legal scholars who are concerned about the apparent conflict of interest.
“I am confused why the AG would contest its takeover of the case,” said Robert C. Fellmeth, a University of San Diego School of Law professor who has long studied California’s legal system. “It would be most appropriate, in my opinion, to have the DA” appeal the case, or hire outside counsel to do so.
During the long evidentiary hearing before Goethals, a deputy attorney general was present as an observer for all the testimony, on which the judge based his recusal decision.
While the appeal and any investigation certainly would be separated within the AG’s Office, Fellmeth said, the fact the state’s top law enforcement officer feels the need to conduct an investigation presents an ethical issue.
“The appearance of conflicting positions in such a posture does not enhance the credibility of the AG in this matter,” Fellmeth added.
A spokeswoman for Harris said she would not comment further beyond what was announced a month ago. The DA’s office also refused to comment on the issue.
The extremely rare recusal decision by Goethals came after a year of an unprecedented evidentiary hearing in which the county public defender’s office asserted the DA’s misuse of secret informants had compromised Dekraai’s case, along with at least 18 others.
Already, four other defendants have had their convictions dropped or reduced because of similar DA evidentiary miscues.
Chemerinsky, who is also a Voice of OC board member, has gone on record asking for a broad-ranging investigation into Rackauckas’ office patterned on the one that probed the Los Angeles Police Department in the wake of the 1991 video-tapped beating of Rodney King.
That was known as the Christopher Commission, which was overseen by Los Angeles attorney Warren Christopher, who later became President Bill Clinton’s Secretary of State.
“The [AG] should create a blue ribbon commission of people with impeccable reputations to investigate,” Chemerinsky said. “It should be quickly done and thoroughly in a form to implement findings to make a difference.”
Laurie L. Levenson of the Loyola Law School in Los Angeles agreed with Chemerinsky’s call for an investigative panel, and shares the concerns regarding AG carrying an appeal while also conducting a probe.
“I don’t know if the [AG’s office] used a lot of judgement in those decisions,” said Levenson. “It would be wise to have an independent, outside group.”
And she worried about the results of any internal probe not being made public.
“My concern is the lack of transparency,” she said. “We might never find out what they found.”
Correction: Erwin Chemerinsky’s first name was misspelled in an earlier version of this article.
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