Judge Thomas M. Goethals to Prosecutor: Discover This!

[Moxley Confidential] OCDA's Howard Gundy gets schooled on legal basics in Scott Dekraai case

Judge Thomas M. Goethals to Prosecutor: Discover This!
Bob Aul

Courtrooms can be confusing for a layperson. Lawyers and judges like to speak in a shorthand legalese that is essentially barking California code sections at one another: "1101(b)," says an attorney during proceedings. His opponent responds, "352," and then a third player, the judge, determines the discussion requires a "402" hearing. Yet, court also occasionally offers moments of clarity a fifth-grader—or even a recalcitrant prosecutor—should be able to grasp.

At Orange County's central courthouse on July 25, exactly such an unambiguous event occurred just before 11 a.m. inside the top floor's largest, long-trial courtroom. The prized space has witnessed many high-profile criminal cases and for years belonged to the county's senior judge, Francisco P. Briseño. Nowadays, Judge Thomas M. Goethals presides over C45, which, on a clear day, offers Pacific Ocean and Catalina Island views.

It's difficult to imagine that prosecutor Howard Gundy needed to be taught a lesson—that aforementioned moment of clarity—because he's a veteran, but that's what happened during one of Goethals' current cases: People v. Scott Dekraai. In 2011, the defendant committed the county's deadliest massacre, fatally gunning down eight people, including his ex-wife, at a Seal Beach salon. Guilt isn't an issue. The onetime fishing-charter crewman confessed when captured near the scene of the crime and formally pleaded guilty in May.

Bob Aul


Gundy and the Orange County district attorney's office (OCDA) want to send Dekraai to death row, where he'll likely die in his cell of natural causes. Dekraai's defense lawyer, Assistant Public Defender Scott Sanders, is pushing for a 400-plus-year sentence without the possibility for parole, a scenario in which the defendant will also likely die in his cell of natural causes. Given the horrific circumstances of the shooting, it's probable an Orange County jury would grant the OCDA's request without deputy DAs breaking a sweat. But, sadly, the office adopted a win-at-all-costs mentality.

The penalty phase of the case has been delayed for more than 18 months because Sanders noticed suspicious OCDA maneuverings. On Jan. 31, he filed a 505-page motion detailing his yearlong probe. He says prosecutors and jail deputies inside the Orange County Sheriff's Department (OCSD) breached discovery obligations to surrender exculpatory evidence to defense lawyers, violated pretrial defendants' rights by engaging in illegal questioning plots, doctored informant programs to favor convictions and misled judges to cover up their misdeeds.

Fortunately for Sanders, Goethals presides in the Dekraai case. More than a few of the judge's colleagues don't hide their pro-government tilt, an unsurprising fact given so many folks in black robes here jump from OCDA jobs to the bench. Having worked as both a prosecutor and as a defense attorney, Goethals possesses dual empathy.

When Sanders confronted Dan Wagner, the brainy, Boy Scout-looking, OCDA homicide-unit boss scoffed in contempt, urging Goethals—who headed the same homicide unit in the past—to dismiss the public defender's claims without testing. Given that the prosecutor's prior assertions didn't prove especially accurate, the public defender's stance prevailed, and subsequent evidentiary hearings conducted from mid-March through this month have become embarrassments for DA Tony Rackauckas' office. Indeed, given they weren't going to admit corruption, OCDA officials—including Gundy—adopted the unenviable stance that all their errors committed in more than a dozen felony cases were the result of unintentional ineptitude involving managerial housekeeping incompetence or legal ignorance.

Sanders says Wagner was so determined to sabotage any possible Dekraai defense that he violated ethics, including ignoring a judge's order in hopes of obtaining sealed, confidential psychiatric records; employed two-faced Mexican Mafia hoodlums as informants to entice the defendant into talking about crime details and revealing potential defense strategies; hid records of the informant's activities; created misleading audio and written records; refused to comply with Goethals-ordered discovery obligations; and took years to surrender documents.

It galls Sanders that OCDA conducted a media campaign alleging he has been callously stalling the case and delaying justice for the victims' families. He also thinks Rackauckas cheated by leaking to the press illegally obtained inflammatory recordings that can't be introduced in court. Says Sanders, "The signal to the public and, more important, to the future jurors on the case could not be clearer: The recordings show Dekraai should be executed."

Representing OCDA in the evidentiary hearings, Gundy has brought schoolboy zeal to the task. More than once, he has pounded his fists, raised his voice and snarled at the public defender, making no secret of the contempt prosecutors feel for Sanders. Consider his May 15, on-the-record colloquy with prosecutor Mark Geller, who reluctantly admits he failed to turn over required documents to defense lawyers and isn't happy about the revelation because he said his mistakes weren't nefarious.

Gundy: "Tell me, you said you called Mr. Sanders an imbecile?"

Geller: "And many other things, too."

Gundy: "Well, let's use that word."

July 25 was the date Goethals scheduled for the Gundy-Sanders oral-argument showdown before ruling on whether OCDA has cheated; if so, he will then consider whether the office should be recused and banned from seeking the death penalty in the case. Whatever decision the judge makes will be historic. Spectators—including seven journalists—packed the courtroom, but anticipation quickly dissipated.

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My Voice Nation Help

The real dumb ones in the court system are the small claims case judges.   They are less skilled than the lawyers they face. 

The one I faced was really stupid and incompetent.  He ruled against me eight times…only to have a superior court judge reverse all of his insane rulings.  I think he was fired soon thereafter.

tongue_twister_for_t topcommenter

"I have absolutely no influence over the outcomes of the trials that are held in these courtrooms". - Judge Derik Johnson.

Ok then what are you doing on the bench?

BillxT topcommenter

I'm actually sure you understand that confessions are no guarantee of guilt. I've heard of jurisdictions that guilty pleas in capital cases were not allowed, a policy that makes a lot of sense to me. "You want to kill him if he's guilty? You're going to have to prove your case."

paullucas714 topcommenter

"Gundy tried one last move, arguing the key isn't whether records exist that should be surrendered, but rather whether the defense can prove prosecutors purposely hid the evidence."

You have got to be fucking kidding me?

949girl topcommenter

That illustration above looks just like Gundy!  He is short!  

Ok all of this is confusing for me I have to admit.  But the DA seemed to have a pretty solid case against Dekraai.  Why resort to being shady?  That's why I'm not always pro-prosecution because they have a win at all costs mentality.  Even if Dekraai is sentenced to death he'll never actually be put to death, it's more of a resume builder for the DA.  Also, why was the Iftekhar Murtaza sentencing put off again?  The jury recommended the Death Penalty for him and I know he had sentencing recently that is now delayed til October.  Does this have anything to do with the judge Cormac ruling it unconstitutional?  I know Gundy was his prosecutor and Goethals was the judge.  Are they just pushing out all DP sentencing and cases?

fishwithoutbicycle topcommenter


Sounds right. Even if the defendant confesses and asks for the death penalty outright there still has to be a trial.

tongue_twister_for_t topcommenter

@949girl  What do you have to be tall to get it wrong or right?

"The DA's complaint against you and the police report had all sorts of holes in it". - A Public Defender to me.

rscottmoxley topcommenter

@949girl I couldn't fit the fact into this story because of space considerations, but Assistant Public Defender Scott Sanders did try to use Judge Carney's recent, anti-death penalty ruling to aid Dekraai. Though Superior Court Judge Goethals noted his respect for Carney, he declined at this point to use the federal ruling to ban a DP finding in the case. However, Goethals mentioned he is interested to see how CA AG Harris responds to the federal judge's opinion that the state's DP system is a horrid mess. 

949girl topcommenter

@tongue_twister_for_t @949girl Being tall has nothing to do with being right or wrong.  Gundy is short, the illustration in the article looks exactly like him, it was a compliment to the artist.