Orange County Superior Court Judge Thomas Goethals will rule Aug. 18 whether to block mass murderer Scott Dekraai from receiving the death penalty and determine if the Sheriff’s Department can be trusted to turn over all records ordered by the court.

Attorneys gave their final arguments Thursday to close an evidentiary hearing which started in late May in which Dekraai’s attorneys alleged the District Attorney’s office and Sheriff’s Department  failed to provide court-ordered records in the past. The defense lawyers contend its possible the DA and Sheriff’s Department still haven’t turned over everything and suggest Dekraai  should be spared the death penalty because he won’t receive a fair trial on the penalty he is to face for the murders.

If Goethals agrees with the defense arguments, it would mean a jury wouldn’t decide Dekraai’s sentence. Instead, Goethals would eliminate the death penalty altogether and Dekraai would be sentenced to eight consecutive life terms in prison, one term for each person he killed.

“You ever see a court do what you’re asking me to do?” Goethals asked Deputy Public Defender Sara Ross, who is co-counsel on the case.

“No, but I’ve never seen a prosecution team do what they have done,” said Ross.

The prosecution of Dekraai, who fatally shot eight people in 2011 at a Seal Beach beauty salon, has dragged on for years despite a confession he made to law enforcement and a guilty plea. But a jail house informant also reported receiving a confession from Dekraai. After a defendant has a lawyer, as Dekraai did, it’s a violation of constitutional rights to use an informant to obtain a confession.

Since then the belated disclosure of thousands of key jail records in late 2014 and early 2016 has introduced additional evidence revealing much broader use of jail informants in Orange County jails, rankling Goethals, who has questioned why it took so long for the Sheriff’s Department to turn over records he ordered in 2013. The issue has become popularly known as the “jailhouse snitch scandal.”

The informant concerns triggered the evidentiary hearing, where 21 Sheriff’s Department officials, including Sheriff Sandra Hutchens, testified about the department’s handling of records and use of informants.

The defense has argued that given the Sheriff’s past history of failing to disclose records in the case, the department can’t be trusted to turn things over.

“They haven’t followed your orders, they’ve been destroying records, they’ve not been turning things over,” said Ross. “The fact that they’re not turning over evidence in any capacity should be troubling and significant.”

Assistant Public Defender Scott Sanders said another factor affecting the fairness of Dekraai’s trial is whether the defense will have access to mitigating evidence, or evidence such as good behavior in jail that might assist Dekraai in his sentencing trial.

He argued the Sheriff’s department has a history of aiding the prosecution, is invested in seeing Dekraai receive the death penalty, and can’t be trusted to turn over mitigating evidence.

Deputy Attorney General Michael Murphy, who took over prosecution of the case in 2015 after Goethals recused the entire District Attorney’s Office because of the informants issue, argued Thursday the defense hasn’t proven Dekraai’s future penalty trial would be unfair, and absent that evidence, Goethals can’t lawfully throw out the death penalty.

Murphy conceded the hearing uncovered misconduct, but because the evidence considered during a penalty trial would be limited to Dekraai’s character and his crime, he argued much of the evidence that was revealed in the hearing is irrelevant to the penalty trial.

“I’m not trying to minimize the importance of what this court has done. It has exposed problems,” Murphy said. “But it’s time to ask the big question, how does this prevent Mr. Dekraai from getting a fair penalty trial?”

Goethals generally agreed with Murphy’s argument that whatever sanction he decides to impose will be limited by the law.

“I think the law is fairly clear. I agree with a lot of what Mr. Murphy has written,” Goethals said. “Where the rubber meets the road is how do the facts play into the law.”

“I think there could be a situation, and the question is whether this is one, in which chronic, abusive failure to comply would rise to the level of a constitutional violation, implicating the other party’s right to a fair trial,” Goethals said.

Although Murphy largely did not comment on evidence related to informants discussed in the hearing, he disputed in his brief Sander’s longstanding argument that there has been a wide-ranging conspiracy by the Sheriff’s Department to hide its use of informants.

He blamed the Sheriff’s Department’s failures to turn over evidence on “ignorance of the law, inadequate records management, and a lack of leadership.”

“To the extent there is evidence to support an inference of intentional suppression of evidence, such behavior appears to have been isolated to a few individuals,” Murphy wrote.

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

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