DA’s Office Rebuked for Blocking Dekraai Judge From Other Cases

Judge Thomas M. Goethals (left). District Attorney Tony Rackauckas (right). (Pool photos)

An Orange County Superior Court judge has ruled District Attorney Tony Rackauckas’ office is disrupting the region’s “orderly administration of justice” by improperly diverting murder cases from the judge who exposed the jail informant scandal.

The extraordinary Dec. 3 order by Judge Richard M. King -- the supervising judge in charge of assigning felony cases -- says Rackauckas’ office has abused a routine challenge procedure to keep Judge Thomas M. Goethals from trying the cases.

Last March, Goethals blocked Rackauckas’ entire office from continuing to prosecute convicted mass murder Scott Evans Dekraai -- after an unprecedented hearing revealed prosecutorial misconduct involving jail informants. The state Attorney General’s office is to prosecute Dekraai for killing his ex-wife and seven others in 2011 in Seal Beach, pending an appeal of Goethals' ruling.

Shortly after Goethals’ ruling, it was disclosed that Rackauckas’ office had for the prior year issued challenges that knocked Goethals off of 57 criminal cases.

In his recent order, King described how such excessive prosecutor challenges have continued in murder cases.

From Dec. 7, 2010, through Feb. 24, 2014, the order says Goethals was assigned 35 murder cases, but disqualified only once. But from Feb. 25, 2014, through this past September, Goethals was assigned 49 murder cases, but disqualified by prosecutors 46 times.

(Click here to read King's ruling.)

King noted that Rackaucks’ office began the inordinate number of challenges to Goethals immediately after the judge on Feb. 25, 2014, recused a deputy district attorney, Erik S. Petersen from prosecuting a felony case for intentionally withholding evidence from defendants.

Ultimately, Goethals ruled that Petersen testified falsely during the unprecedented evidentiary hearing in the Dekraai case. Last September, Petersen resigned from county prosecution office.

“This disparity is not coincidental,” King wrote, but resulted from the Dekraai recusal ruling and two other cases where Goethals issued orders critical of the prosecution.

Rackaukas’ office issued a statement saying the district attorney "respectfully disagrees" with King’s ruling and intends to immediately appeal.

King’s ruling is “contrary to well established statutory and [case] law,” the statement says.

Goethals’ rulings spawned a criminal investigation by state Attorney General Kamala Harris of reputed false testimony by law enforcement at the Dekraai trial; a county review of Rackaucks’ office; and calls by national legal leaders for an investigation by the U.S. Department of Justice.

Noting the county is the nation’s sixth largest, King wrote the district attorney’s actions have “negatively impacted not only the assignment of murder cases, but all felony cases as well.”

King wrote that he had concluded that the district attorney had violated the Code of Civil Procedure, which is the framework for court actions.

Rackauckas’ actions therefore were in violation of the separation of powers of the United States and California constitutions.

Writing about the impact of Goethals’ recusals, King stated:

“Not only did this remove one of the most experienced, independent and capable judges from hearing cases that require such experience and expertise, it sent a clear and loud message to other local judges that they could expect similar treatment if they allowed the defense to inquire into similar allegations of misconduct.”

King’s Dec. 3 order was first uncovered in the second-degree murder case of Aleksandar Apostolovic, a 27-year-old Santa Ana man who allegedly killed a 12-year-old girl in Westminster in a high-speed crash.

But King issued the same ruling on the same day in another murder case, denying the prosecutor’s attempts to block Goethals from that case.
That other case involves a murder charge against Rito Tejada, 23, of Santa Ana for the 2013 stabbing of a Huntington Beach man. Tejada has pleaded innocent.

In the Apostolovic case, King, as supervising judge, assigned the trial to Goethals.

That same day, records say a challenge order was filed with the court on behalf of deputy district attorney James S. Mendelson, who is prosecuting Apostolovic.

Then shortly thereafter King filed his 49-page ruling, denying the challenge to Goethals.

The filing of the extensive ruling with elaborate legal arguments on such short notice would indicate that King had prepared in advance to take the action.

King ruled in a manner to allow Rackaucks to appeal to the state 4th District Court of Appeal in Santa Ana.

A pretrial hearing in Apostolovic’s case is set for Dec. 18.

Apostolovic’s public defender, Matthew B. Darling, declined comment.

A previous version of this article incorrectly named the Superior Court judge who issued the order rebuking the Orange County District Attorney's office. We regret the error.

Rex Dalton can be reached at rexdalton@aol.com.