Expressing extreme frustration, the judge in the Scott Evans Dekraai mass murder case today threatened to send “someone to jail” if Orange County jail informant records his court is seeking are destroyed by Sheriff Sandra Hutchens’ department.
Superior Court Judge Thomas M. Goethals Friday ordered the sheriff to retain all relevant jail informant records after Scott Sanders, Dekraai’s public defender, disclosed this week that the county Board of Supervisors in late 2014 had unanimously approved a policy that allowed the sheriff’s department to destroy such records after three years.
But just this last November, when Sanders and his team subpoenaed sheriff record-keeping policies, they didn’t receive the 2014 policy. They instead received policy documents dating from 1979 to 1995.
In a 56-page motion filed Jan. 18 outlining a host of new informant record irregularities, Sanders wrote he only learned of the board-approved 2014 policy when a confidential informant later provided it, which revealed to him that the subpoena hadn’t been fully honored.
Noting how the sheriff and county counsel were seeking permission to destroy files potentially reflecting systematic violations of defendant rights, Sanders wrote:
“It is beyond bewildering for a department to engage in such behavior, and one can only hope that the agency did not begin destroying as soon as the approval was given.”
In early 2016, the supervisors suspended the policy in order to preserve the informant records. However, it is unknown whether records were destroyed while the policy was in effect.
D. Kevin Dunn, a deputy county counsel, told the court the board’s action didn’t alter its past retention policy and insisted nothing improper occurred.
But Sanders said there was no such provision in the older policies he was provided. “I have no idea what he [Dunn] is talking about,” Sanders said.
In his motion citing irregularities, Sanders noted the “deletion” of six-months of informant records, how informant records were manipulated suggesting “deletions,” and how deputy records acknowledged past record “shredding.”
A Years-long Scandal
The issues surrounding the potential document destruction are the latest development in a jailhouse informants scandal that was first brought to light three years ago.
In early 2014, Sanders alleged in a more than 600-pages of motions that sheriff’s deputies and prosecutors from District Attorney Tony Rackauckas’ office violated the constitutional rights of Dekraai and other defendants by using a secret network of informants in county jails to obtain information that was not disclosed to their attorneys.
To date, disclosures of the rights violations have led judges to overturn the convictions of at least six defendants charged with murder and other serious crimes. Meanwhile, the state attorney general’s office has an ongoing criminal investigation into the matter, and late last year the U.S. Department of Justice opened a civil rights investigation.
Sanders argues the violations are serious enough that Dekraai — who pleaded guilty in the spring of 2014 to killing his wife and seven other people in a 2011 shooting rampage at a Seal Beach beauty salon — should be spared from the death penalty. Goethals has so far declined to grant Sanders’ request.
But in August 2014, Goethals ruled that the prosecutorial team engaged in misconduct when a prosecutor and sheriff’s deputies provided false information to his court about informant activities for years in a number of cases.
Then, shortly after that ruling, a trove of new computer records [called TREDS] on jail informant locations was disclosed to Sanders. This led Goethals to extend the hearing. In March 2015, he took the highly unusual step of barring the DA’s office from prosecuting the penalty phase of Dekraai’s trial, with the state attorney general’s office to continue prosecution.
Now former Attorney General Kamala D. Harris, who was elected to a U.S. Senate seat in the recent election, appealed Goethals’ decision. But this last November, the 4th District Court of Appeal in Santa Ana, in ruling that excoriated county law enforcement, denied the appeal.
It was in December 2014 — after a year of headlines attracting national interest — that the supervisors authorized the sheriff’s record destruction policy. Supervisor Shawn Nelson, who was the board chairman at the time, did not return calls seeking comment regarding the policy Friday.
In January 2016, supervisors reversed course — voting to direct county counsel to put a hold on “all records related to confidential informants,” with the board suspending the purging of such records.
If the sheriff or DA wished to destroy informant records, the board directed them to secure written permission from the county executive office, human relations office, and county counsel.
The county executive office said Friday it had no record of such a request to attempt to destroy informant records.
At Friday’s hearing, the state prosecution team — led by deputy attorney general Michael T. Murphy — got a candid view of the intensity of the legal scrum between Goethals and the sheriff over informant records.
While Goethals and officials of the county counsel’s office — which represents the sheriff — have been jousting for more than four years over evidence disclosures, the judge today blasted the sheriff and county counsel with some of his sharpest criticisms, citing “ridiculous” legal procedures disrupting his court.
After detailing numerous such maneuvers, Goethals again told county counsel he was considering finding Hutchens in contempt of court and issuing sanctions of $10,000 against her and county counsel. In a December hearing, Goethals first broached the idea of possible contempt proceedings.
On Friday, Goethals’ threat of sending someone to jail — either for a contempt violation, or an allegation like obstruction of justice — was the sternest signal about his ongoing concerns over the sheriff’s failure to abide by his orders for evidence disclosures.
Friday’s legal debate involved some 5,650 pages of informant notes that Sanders was seeking, as the county counsel questioned their release. Goethals said he had reviewed 1,925 pages.
As an example, Goethals noted county counsel was claiming privilege over the disclosure of the public defender office email address for Sanders.
In another case, county counsel sought protections involving two inmates who once had spoken to a sheriff deputy — but Goethals noted he had sentenced one of the men to death, adding he is now on death row at San Quentin Prison.
Finally, Goethals read emails in two cases describing how sheriff deputies, an assistant sheriff and a Santa Ana homicide detective were involved in planning to deploy informants to secure compromising statements from inmates — noting this is exactly what the prosecution/sheriff teams repeatedly testified never occurred.
“My God,” exclaimed Goethals, about one email apparently dated November 2011, the month after Dekraai’s slaughter. “What’s going on over there? If that’s not a smoking gun, I don’t know what is.”
At the conclusion of today’s hearing, Murphy asked the judge in what direction the case may be proceeding.
Goethals said he would be better able to answer that question at the next hearing on Feb. 10.
Rex Dalton can be reached directly at firstname.lastname@example.org.