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

A state appellate court Monday upheld the Orange County District Attorney Office’s right to disqualify Superior Court Thomas M. Goethals from hearing murder cases, but wrote the “extraordinary abuse” of the procedure “is a barrier to justice.”

The 4th District Court of Appeal in Santa Ana urged the California Supreme Court to re-address the issue of when judges can be rejected — given the conflict between District Attorney Tony Rackauckas and Goethals in the trial of mass murderer Scott Evans Dekraai.

In an unprecedented decision in 2015, Goethals recused the entire DA’s office from prosecuting the death penalty phase for Dekraai — who pled guilty to the 2011 slaughter of eight people in a Seal Beach beauty salon — after details of prosecution misconduct involving jail house informants were revealed by county public defender Scott Sanders.

In early 2014, as rulings in the case were going against prosecutors, the district attorney’s office began invoking a civil procedure code for a preemptory judge disqualifications, eventually rejecting Goethals in 55 of 58 murder cases assigned to him by the supervising judge for felony cases.

The battle over the disqualifications began late last year after Superior Court Judge Richard M. King — the supervising judge assigning felony cases — rejected district attorney requests to disqualify Goethals in five cases, some with multiple defendants.

In December, Rackauckas appealed King’s ruling in the five cases, setting the stage for the ongoing legal debate that now may go on for a year or more.

In its 2-1 ruling Monday, the appellate panel said it must follow 39-year-old case law that gives wide discretion for either the prosecutor or defense to use a preemptory challenge.

But the majority went on to describe Rackauckas’ use of the procedure constitutes “a barrier to justice and its cost to a court should be considered.”

In dissent, Associate Justice Judge David A. Thompson said the majority’s decision allowed the district attorney to turn the procedure “into a concealed weapon to be used to the manifest detriment of the proper conduct” of a court jurisdiction.

In a statement, Rackauckas’ office said that although it agrees with the appellate court’s ruling, it “maintains that there has never been a blanketing [preemptory] papering of any judicial officer.

“Any exercise of preemptory challenge made by any [deputy district attorney] has been the individual prosecutor’s challenge to do what is in the best interest of the People, public safety and crime victims.”

In his 49-page ruling in the five cases, King wrote that the DA’s preemptory challenges were disrupting the “orderly administration of justice,” complicating how Superior Court handled major cases.

The prosecutorial actions meant “one of the most experienced, independent and capable judges” couldn’t hear murder cases, King wrote, but also “sent a clear and loud message to other local judges that they could expect similar treatment” if they allowed defense inquiries of alleged prosecution misconduct.

King argued that such prosecutorial actions constituted a violation of the separation of powers of the California and U.S. constitutions.

Erwin Chemerinsky, dean of the UC Irvine School of Law, intervened in the case, arguing on behalf of King.

Chemerinsky, who is a member of the Voice of OC board, couldn’t be reached for comment after the appellate decision was issued late yesterday afternoon.

The appellate panel majority wrote the district attorney’s preemptory challenges “did not constitute a separation of powers violation,” because of the ruling in the old case that involved challenges to a judge in a handful of prostitution cases.

But Thompson wrote that King was correct in arguing the district attorney had violated separation of powers, because the prosecution “was motivated by discontent with [Goethals’] misconduct rulings against them” not by the premise a prosecutor couldn’t get a fair trial.

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

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