Sheriff’s Department Believed It Had a Legal Right to Withhold Documents From The Court

Joshua Sudock/OC Register

Orange County Superior Court Judge Thomas Goethals during a court hearing.

The Sheriff’s Department withheld documents from court disclosure, believing a section of the California penal code didn’t require the department to turn them over, retired Sheriff’s Lt. Catherine Irons testified Wednesday.

Judge Thomas Goethals has called for the ongoing hearing to determine whether or not he can trust the Sheriff’s Department to turn over all the materials he subpoenaed in 2013, as part of his court’s look into the Sheriff’s use of jailhouse informants.

Irons, who retired from the department in 2015, said withholding documents was to protect the “safety and security” of the jail.

“In your experience, when a request was made for classification records like the TREDs, a unilateral decision was made, we don’t give those out,” said Goethals, questioning Irons.

“That’s my understanding,” Irons responded.

The hearing is an outgrowth of the case of Scott Evans Dekraai, a mass murderer who has admitted shooting to death eight people at a Seal Beach salon in 2011. Goethals will determine if Dekraai’s rights were so seriously violated by the use of informants that he can’t receive the death penalty.

The involvement of an informant in Dekraai’s case spawned a broad inquiry into what’s known as the jailhouse snitch scandal, or how deputies moved and worked informants in the jail to gain confessions without the knowledge of defense attorneys and in violation of inmates' constitutional rights.

Many insights into the use of informants has come from two sources, an electronic database on inmate movements known as TRED and the Special Handling log. The log is a trove of deputies’ notes on their daily work, including their work with informants.

Although the defense subpoenaed those records in January 2013, it wasn’t until late 2014 that the TRED system was disclosed and in 2016 that the 1,157 page Special Handling log – most of which remains under seal – was turned over to the court. Why it took so long for those documents to be disclosed, and whether there was an effort to hide them, is at the center of this court hearing.

Two Sheriff’s deputies – who have invoked their Fifth Amendment right against self-incrimination -- were admonished by Goethals for their testimony in previous hearings, where they avoided mentioning the TRED system when asked about them. Goethals said the deputies, Seth Tunstall and Ben Garcia, “either intentionally lied or willfully withheld material evidence from this court.”

Irons testified that when a subpoena was received, Sheriff’s Department officials might exclude certain jail files on the basis that those documents are privileged under the penal code. Those documents were not turned over to County Counsel or the court.

That changed in 2014, Irons said.

“At some point…that penal code wasn’t going to keep them out anymore. And so the change of direction was county counsel needed to have everything and they would discuss in court what was actually going to be disclosed or not,” said Irons.

The Sheriff’s Department has stated publicly that TRED records were never a secret and have always been discoverable in court.

While county counsel always objects to the release of TRED files on security and confidentiality grounds, “they’ve been discovered on numerous occasions,” former Sheriff’s spokesman Jeff Hallock told the ABA Journal in 2016.

Irons was also the first member of the Sheriff’s command staff to say that she had reviewed the special handling log while a supervisor at the jail.

Both the lieutenant who started the Special Handling Log and the Sergeant who ended it have testified they never read the log until much later.

Although a version of the special handling log was ended in 2013, Irons said she started it again in 2014, unaware that one had existed before.

There was no mention Wednesday of an Orange County Grand Jury report released Tuesday which called the notion of a jailhouse snitch program in Orange County a “myth” exaggerated by the media.

The report said while there is legal use of informants in the jails, there’s no systemic misuse of informants and any misconduct is largely confined to “a few rogue deputies” without the approval of officials up the chain of command.

Irons testified informant operations were common when she was a lieutenant and she decided to formalize the process in 2012 for outside agencies to request an operation.

Before the process was formalized, Irons said the captain of the facility was involved in approving most informant operations.

“I personally did not approve an operation in the jail without running it up the chain of command,” Irons said.

In response to questions from Goethals, Irons said she never received any specific legal training about court cases that govern the use of informants in jails and protect defendants’ rights, such as Massiah vs. United States, Brady vs Maryland, and Illinois vs. Perkins.

Meanwhile, the families of Dekraai’s victims have continued to attend the court hearings.

The outcome of the hearing could affect whether Goethals decides to throw out the death penalty or sentence Dekraai to eight consecutive terms of life in prison.

The family of Michelle Daschbach Fast, 47, said they were opposed to the death penalty and were critical of how the case has been handled so far.

“Never did we imagine that the blunders that tainted this case would be created by the prosecution team themselves, on a case that was supposed to be a slam dunk,” said Laura Daschbach, Michelle’s sister, reading from a letter from the family.

“A life of appeals for everyone involved is the antithesis of justice,” she added.

The family of another victim, Lucia Kondas, 65, wrote in a letter to the court that they supported the death penalty for Dekraai.

“I do not believe a self-confessed mass murder’s [sic] rights should outweigh the rights of the victims and their families,” wrote Mary Bianchi, Kondas’ sister.

The hearing continues Thursday.

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