The judge handling the sentencing trial for mass murderer Scott Evans Dekraai said Friday that misuse of jailhouse informants by Orange County prosecutors and Sheriff’s deputies may cause him to consider “the nuclear option,” throwing out the death penalty in the case.

“What has previously been an almost unthinkable option is no longer unthinkable,” said Judge Thomas Goethals at a hearing Friday morning.

The hearing was part of the penalty phase of the trial, which will determine whether Dekraai, who shot eight people at a Seal Beach hair salon in 2011 and pled guilty to the murders in 2014, will receive a life sentence or the death penalty.

Although it began as a murder trial, Dekraai’s case has since grown into a years-long “jailhouse snitch scandal” that has sparked U.S. Department of Justice, state Attorney General and Orange County Grand Jury investigations. They’re looking into how the Sheriff’s Department and District Attorney’s office used jailhouse informants to elicit confessions from criminal defendants, without the knowledge of the defendants or their attorneys.

Sanders has argued the violation of his client’s rights is so egregious he should be spared the death sentence and be sentence to life in prison.

For months, Goethals has expressed frustration with the pace at which Sheriff Sandra Hutchens’ department has produced discovery documents related to the jailhouse informants program. At one point he threatened to hold her in contempt of court.

Now Goethals wants attorneys to establish at a May 23 evidentiary hearing, whether or not the Sheriff’s Department has, over the course of the Dekraai case, attempted to cover up the informant program by intentionally destroying or withholding key documents.

Specifically, Goethals wants to know why there are months-long gaps in entries from the Special Handling log, records which could show how informants were moved from cell to cell and which inmates they were put near and later provided information about.

Sanders, in his latest motion filed in March, points to the fact that prosecutors have only “been able to locate Special Handling logs for a period of a mere seven months of Dekraai’s 65 months of incarceration” and to a two-year gap in entries in records tracking two informants who lived in the same module as Dekraai.

“It’s hard for me to imagine that a staff full of competent investigators can’t get to the bottom of what happened to the Special Handling logs,” Goethals said at Friday’s hearing.

In the motion, Sanders outlined his argument for why he believes Orange County Sheriff’s deputies not only were openly and actively encouraged to cultivate jailhouse informants to aid prosecutors, but the department also tried to cover its tracks as revelations about the informant program unfolded in court.

The judge also wants attorneys to establish whether or not, as Sanders has alleged in court briefs, Hutchens asked the county Board of Supervisors to change a policy for document retention that would allow the department to destroy documents that included records about jailhouse informants.

Sanders argues the fact that the department sought approval from the supervisors is evidence of “a broader effort to align policies with misleading statements about the use of informants…and to eliminate inconsistent evidence that could further embarrass the agency,” according to a motion he filed Feb. 9.

In early 2016, the supervisors suspended the policy in order to preserve the informant records although it is unknown whether any records were destroyed while the policy was in effect. The county’s attorneys say the board’s action didn’t alter its past records retention policy and insist nothing improper occurred.

Attorneys will also discuss Sanders’ claim that Assistant District Attorney Dan Wagner, a former prosecutor on the case, intentionally delayed releasing records from the special handling log at Theo Lacy Jail to avoid tipping off Sanders to contradictions in testimony by two deputies that would help him in another case.

The last evidentiary hearing Goethals ordered lasted more than four months.

Goethals said he hopes this hearing won’t last that long and said he wants to avoid any more debate over whether a jailhouse informant program exists, as the Sheriff’s Department has repeatedly denied.

“The debate about what is going on in the Orange County jails is over,” Goethals said. “We are not going to spend a lot of time going down that rabbit hole.”

Contact Thy Vo at or follow her on Twitter @thyanhvo.

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