Judge in Dekraai Case Says He May Consider Dropping Death Penalty

SANTA ANA, CA - MARCH 18: Scott Dekraai, accused of killing eight people in a Seal Beach beauty salon listens, while his attorney Assistant Public Defender Scott Sanders addresses the court during a motion hearing on March 18, 2014 in Santa Ana, California. The hearing is underway to address the public defender's allegations of a widespread, unconstitutional jailhouse informant program that he feels affects the case of his defendant. (Photo by Mark Boster-Pool/Getty Images) ** OUTS - ELSENT, FPG - OUTS * NM, PH, VA if sourced by CT, LA or MoD **

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 tvo@voiceofoc.org or follow her on Twitter @thyanhvo.

  • verifiedsane

    Houston, we have a problem! Judicial Corruption: Still Pandemic in California


  • Paul Lucas

    they really should not go after the death penalty. a death penalty conviction would ensure he never gets executed with all this baggage on this case it will be permanently in the appeals courts and he will never be executed. In the mean time he will live a life of relative luxury compared to what his life would be under life in prison without parole.

  • verifiedsane

    The courts unfortunately and disturbingly have become part of the corrupt & lawless political branch of government…..The fact that no one in the Sheriff’s department and DA’s Office has been indicted or held accountable for their criminal actions that have clearly subverted our Constitution, justice, and the law is beyond mind-boggling. This horrible fiasco has gone from the murder conviction of Dekraai and others, to undermining the public trust in our entire justice system.

    Just Imagine for a moment that it was your loved one that was murdered……They (as well as the public) have been completely betrayed by the very system and people that we have entrusted and has been bestowed upon them an extraordinary level of power and duty to fulfill the most sacred promise of basic liberty and justice for all.

    Once our justice system has lost it’s integrity, credibility, and trust….if we as a society and nation our voided of the most crucial foundational pillars of fair and equal justice for all; then we our truly teetering upon the perilous edge of monumental revolutionary chaos & anarchy.

    • LFOldTimer

      And to add injury to insult the fallout from the illegal informant scandal has resulted in sworn deputies REFUSING to perform the BASIC functions of a cop – that is to give sworn testimony under oath during criminal prosecutions. Hence, heinous CONVICTED criminals are awarded new trials (at HUGE public taxpayer expense – many $millions$), are given sweet plea deals that reduce their sentence significantly or are given their walking papers out of jail. The reason? COPS REFUSE TO TESTIFY TO COVER THEIR OWN BUT*s. Yet they still draw compensations that well exceed $200,000 a year!!!

      This is just SO wrong. No one can justify it. Even the AOCDS (the police union) has shut up about it . At first they made excuses for these cops and tried to justify their actions. But I haven’t seen the head honcho of AOCDS quoted for a long time. None of it passes the stink test. Judge Goethals made it obvious in his statements. Oh, and the BoS remains silent as church mice!!!! HA!

      We are supposed to be a CIVILIZED society. When those in power and authority do not suffer consequences for egregious behaviors that override the law – we are in DEEP DEEP trouble!!!

    • John Claxton

      Great comment! However it is not the courts responsibility to bring crooked cops and other county officials to justice – that falls upon the DA’s office. Unfortunately for Orange County, our DA is worthless!

      • verifiedsane

        When a crime is committed in the functioning jurisdiction of the court room proceedings; then it’s the court that has the responsibility and duty to bring substantive actions against the perpetrators…if this were not the case…then the courts would be nothing more than a free for all of false/illegal evidence and testimony which are felony crimes; this would in-turn subvert the most basic principles of our judicial system. Surely the DA in OC isn’t going to bring actions against itself or their cohorts/partners in crime at the Sheriff’s department…this is when the court either tosses the case, and/or refers these cases to the State Attorney General or Federal authorities for indictments & prosecution. I don’t see that happening in these cases; do you?

  • kburgoyne

    There is no longer any reason to destroy ANY government documentation. Period. The overwhelming deluge of garbage floating around the web demonstrates the truth in that. If there is sufficient storage space on servers for all the conspiracy theories and other garbage floating around the web, its trivial in comparison to keep government records as microscopic magnetic spots on several redundant hard drive arrays. The question isn’t one of space to store the documents. It’s only a question of organizing it so its later findable. However the starting point is always a simple chronological organization with indexes added on top of that.

    Computer archives of government documents also need to be duplicated to systems which political critters literally lack the ability to delete anything from. This “purging of data because it’s politically inconvenient for us” should be electronically/physically impossible.

    In addition, once any document becomes public record, it should be immediately posted for replication by anyone wanting to maintain a document archive server outside the government. Documents should be electronically marked with “go public” dates on them when they are added to the government archive, and the government servers should automatically post documents as “now public” on that date without anyone have to take any further action.

    All documents should have publicly posted information stating the subject of the document, its “go public” date, and a statement providing the legal justification behind why that specific “go public” date was determined. For the overwhelming majority of mundane everyday documents the justification statement would be pretty easy and “canned” because it’ll be based on some existing law/ruling.

    All this should be mandatory even for documents which are marked as “never go public”. Journalists and the public should be able to see what documents exist and determine whether the document is of interest in any particularly matter even if they may not be able to read the document. In other words, journalists and the public should be able to know what’s there to then issue a FOIA (or similar) request.

    Anyone should be able to bring this “metadata” about the document to a judge as part of a FOIA (or similar) request and judges should have the starting position that “this metadata better make sense and be meaningful or somebody’s going to get their tail flamed” both before and after the judge has reviewed the actual document itself.

    • LFOldTimer

      Yes, but if your methods were actually implemented that would mean we’d have a more transparent government, something the crooked bureaucrats see the same as Superman saw kryptonite. .

  • LFOldTimer

    The worst thing that Judge Goethals could do to Dekraai is put him in the general population of other inmates convicted of heinous violent crimes doing life sentences w/o the possibility for parole. Those people have nothing to lose. Placing Dekraai on death row would be doing him a favor – as he would NEVER get executed in the State of California and wouldn’t have to grow eyes in the back of his head.

    I sure hope Judge Goethals isn’t going soft on Hutchens and OCSD. Not only should Dekraai be brought to justice. So should those sworn under oath to obey the law and honor the US Constitution. If they walk away unscathed the justice system is a joke, as far as what our Founding Fathers intended. It would send a clear message to the People that those in positions of power and authority are immune from our laws. And we would be NO DIFFERENT than the 3rd world banana republics.

    Some of us who took sworn oaths ourselves and put our lives on the line to protect the integrity of our nation would take personal offense at a whitewash. Please, Judge Goethals. Don’t sell us down the river.