Judge’s Decision on Whether Dekraai Faces Death Penalty Hinges on Credibility of OC Sheriff’s Department

JEFF ANTENORE, Voice of OC Contributing Photographer

Judge Thomas Goethals presides over the trial of mass murderer Scott Dekraai in a courtroom on the 11th floor of the Central Justice Center in Santa Ana on Monday, June 5, 2017.

First in a two-part series. Read part two here.

Superior Court Judge Thomas Goethals will announce Friday if mass murderer Scott Evans Dekraai faces the death penalty in a case that upended at least six other criminal convictions, damaged the reputations of both the Orange County Sheriff’s Department and District Attorney’s Office and unveiled the “jailhouse snitch scandal.”

Dekraai confessed to law enforcement and pled guilty to the 2011 murders of eight people, including his wife, at a Seal Beach salon. He wounded one other person.

But the revelation that Sheriff’s deputies placed an informant in a cell next to Dekraai, resulting in an illegal confession, transformed his murder case into a wide-ranging exposé of the use of jailhouse informants by Orange County law enforcement.

Nearly six years after the murders, allegations that prosecutors and the Sheriff’s Department attempted to hide evidence of their informant program from the court could lead Goethals to rule Dekraai cannot have a fair penalty trial before a jury that would decide whether he receives life in prison or a cell on death row.

Using an informant to gather information and bolster criminal cases is not illegal, but it’s a violation of a person’s constitutional right to legal counsel if the target of that informant is already charged and represented by an attorney.

Last year, the California Fourth District Court of Appeals unanimously found “systemic problems” with informants and evidence disclosure at the Sheriff’s Department and DA’s office.

The appeals court upheld Goethals’ decision to bar the Orange County District Attorney’s office from prosecuting Dekraai, meaning the state Attorney General’s office had to step in as prosecutor.

Assistant Public Defender Scott Sanders, Dekraai’s attorney, has argued the Sheriff’s Department for decades illegally placed informants next to inmates in jails to get incriminating evidence and confessions. He also alleges prosecutors routinely withheld informant evidence from defense attorneys, violating defendants’ rights to due process.

The Sheriff’s Department repeatedly denied the existence of a sanctioned informant program, and throughout the latest evidence hearing blamed any illegal informant use on a mostly unnamed, isolated group of inadequately-trained deputies.

Meanwhile, a controversial report by the Orange County Grand Jury, which has been criticized by legal experts, found the opposite – calling Goethals’ exploration of the subject a “witch hunt” and concluding there is no “systemic, widespread informant program.”

The grand jury report doesn’t discuss the Appeals Court ruling that removed the DA’s office from the Dekraai case or the six other cases overturned because of illegal use of informants.

In June, the Appeals Court upheld another Superior Court judge’s ruling that prosecutors with the Orange County District Attorney improperly withheld information from defense attorneys and misused a jailhouse informant.

But Goethals has said the informant issue “ship has sailed” in his courtroom and there is no question a department-sanctioned informant program existed.

The question behind the latest hearing, the third evidence hearing in the Dekraai case, is whether Goethals trusts the Sheriff’s Department has turned over all the evidence he ordered disclosed in January 2013.

The Records

The years-long delay in disclosing two categories of Sheriff’s records — a database of inmate movements known as TREDs, and more than a thousand pages of deputies’ notes, known as the special handling log – has raised questions about whether the department deliberately withheld evidence from the court.

Goethals has also lambasted the DA’s prosecution team for the delay in their disclosure, which revealed widespread use of informants in several other cases, and led to convictions being overturned for murder or other major crimes in at least six other criminal cases.

The evidence presented in the current hearing offers an incomplete picture of why the records were disclosed so much later, in large part because some of the key Sheriff’s players refused to testify.

Of the 21 people called as witnesses in the hearing, seven Sheriff’s employees invoked their Fifth Amendment right against self-incrimination, four of whom were granted immunity from prosecution and forced to testify.

The remaining three who did not testify – deputies Seth Tunstall, William Grover and Ben Garcia – are considered the most experienced deputies in Special Handling, the unit that manages sensitive inmates and informants.

Grover and Garcia are also the most prolific authors of the special handling log.

Testimony from various Sheriff’s officials suggest the the log wasn’t disclosed because management didn’t know it existed. Sheriff Sandra Hutchens, who isn’t running for re-election next year, pledged the department has now complied with all of the court’s subpoenas.

A Semantics Debate

In 2014, the Sheriff’s Department introduced a new term, “sources of information,” to describe people who casually provide information to deputies on matters like jail safety, without an agreement demanding anything in exchange for their information.

Hutchens and several witnesses said the term “informants” has been ill-defined and used broadly and erroneously by deputies in their writings, giving the appearance of a vast network of jailhouse informants who were cultivated and maintained by jail deputies.

The reality, Hutchens testified, is deputies who worked with informants were acting lawfully and facilitating interactions between informants and outside police agencies, or were gathering information volunteered by inmates to keep the jail safe.

Sanders argued the introduction of the term “source of information” is part of a word game by the Sheriff’s Department to “create cover for false testimony” by three jail deputies – Tunstall, Grover and Garcia — who in previous hearings denied the existence of a jailhouse informant program.

Rather than committing perjury, the department could say deputies were relying on another definition of the term “informant,” Sanders said.

Lt. Dave Johnson, who supervised the special handling unit as a sergeant, testified the Special Handling unit did not “cultivate and manage” informants, but said deputies did interview inmates – who he said were sources of information, not informants – about crimes within the jail.

If they did work informants, it was without his knowledge, Johnson testified.

Johnson also disagreed with the language he used in a 2009 memo in which he wrote to his supervisor that one of the duties of Special Handling deputies was to “handle and maintain” confidential informants. In court, Johnson said he should have used the word “facilitate.”.

He claimed he never saw a memo that purportedly hung on the wall of the Special Handling Unit office. The memo includes “cultivate/manage confidential informants” among a list of duties for special handling deputies.

After Johnson’s testimony, Goethals said the lieutenant had “credibility challenges.” 

Deputy Jonathan Larson, on the other hand, testified his “immediate supervisors and lieutenants knew what we were doing” with respect to informants.

“Our lieutenants read through our evaluations, looked through our log on a daily basis, from my understanding,” Larson said. “We would talk to our supervisors – they’d come in and have questions if there was something they didn’t understand in the log.”

Meanwhile, top Sheriff’s Department officials acknowledged deputies were cultivating informants – although they attributed it to an isolated group of individuals.

Commander Jon Briggs was the first to testify that deputies were developing and using informants in the jails, stating “when you read the log, you can see that quite a few deputy sheriffs spent a good deal of their time cultivating and utilizing confidential informants.”

Briggs blamed high turnover among sergeants and lieutenants in Special Handling.

“And the deputies were kind of — if you want to refer to it as the inmates were running the asylum on that occasion,” Briggs said.

Hutchens, while saying Sander’s allegations and media coverage have “blown out of proportion” informant use in her jails, also agreed with Goethals that sheriff’s deputies were, over the course of years, intentionally moving informants near targeted inmates to get incriminating information.

“We’re not talking once or twice. This happened for a long time, didn’t it?” Goethals asked.

“Yes,” Hutchens replied.

During her testimony Hutchens said, “I am confident that we have taken appropriate steps to make sure we’re complying with the law.”

But undermining the tone of her testimony, Sanders argues, is a department-wide letter Hutchens wrote to staff after the release of the Grand Jury report.

In the letter, Hutchens writes that media coverage has “painted an inaccurate picture of OCSD” and “comments made by a handful of public officials have been equally troubling and ill-informed.”

She also doubles down on the department’s stance that they “have never had a systemic program designed to circumvent constitutional rights as has been alleged in the courts and the media.”

Whether Goethals believes all relevant records have been delivered will be revealed when he makes his ruling on Friday.

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