California Attorney General's Office Lies To Appeals Court In OCDA Cover Up

DA Tony Rackauckas and aide Susan Schroeder: How long must we pretend to be clueless?
DA Tony Rackauckas and aide Susan Schroeder: How long must we pretend to be clueless?
Beth Stirnaman

Inadvertently underscoring the warped condition of our criminal justice system, Deputy Attorney General Theodore M. Cropley entered a packed California Court of Appeal hearing on Oct. 17 and lied in the pending death penalty case of People v. Scott Dekraai.

According to Cropley, prosecutors in the Orange County district attorney’s office (OCDA) had “no knowledge” of a valuable, hidden sheriff’s records system at the core of the ongoing jailhouse informant scandal that’s won national embarrassment and calls for a U.S. Department of Justice probe.

Like a skilled CIA operative trained to beat a lie detector test, the deputy AG casually repeated the falsehood at least five times during a 20-minute presentation to a three-justice panel—Kathleen O’Leary, Richard Fybel and Raymond Ikola—in hopes of convincing them to overturn the historic recusal of Tony Rackauckas and his OCDA from Dekraai.

In March 2015, Superior Court Judge Thomas M. Goethals, a former prosecutor, booted OCDA from the case after watching law enforcement officials hide what we’d eventually learn was the sheriff’s TRED system documenting inmate movements and commit perjury to cover up the existence of the records.

Sheriff Sandra Hutchens poses dumbfounded about why anybody would care about the TRED evidence, but it doesn't just contain bureaucratic gobbledygook. As we’ve documented on these pages during recent years, the contents provide proof of illegal government operations designed to aid prosecutors win cases. In 1964, the U.S. Supreme Court banned law enforcement officials from questioning pre-trial inmates after they’ve been charged with a crime and who have legal representation. Trampling that constitutional prohibition, officials secretly employed jailhouse informants, relocating them to cells near targets and tasking the snitches with tricking inmates into making incriminating statements. To introduce that information in court, prosecutors then claimed the snitches accidentally obtained such evidence without government aid. Dekraai’s defense lawyer, Assistant Public Defender Scott Sanders, unraveled the scam.

By ignoring key facts, Cropley sculpted a counter-reality to that undisputable history. In one of his briefs to the appellate justices, the deputy AG insisted there is “no evidence” that “even remotely demonstrates” OCDA prosecutors have in the past or will in the future abandon their ethical obligation to seek justice rather than merely stockpile wins. He also labeled the “possibility of future misconduct” in Dekraai as nothing but “rank speculation.” In his world, prosecutors didn’t know about TREDs and thus can’t be expected to have demanded their surrender or to have realized deputies were lying under oath about their existence.

Oops: This week, the attorney general's office tried to absolve OC prosecutors from the snitch scandal by claiming they were unaware of controversial TRED jail records, but the DA's office entered the above TRED document into evidence at a 2011 trial.EXPAND
Oops: This week, the attorney general's office tried to absolve OC prosecutors from the snitch scandal by claiming they were unaware of controversial TRED jail records, but the DA's office entered the above TRED document into evidence at a 2011 trial.

But the deputy AG’s assertion is demonstratively false. Court records obtained by the Weekly show that high-ranking prosecutors tied to the snitch scandal—for example, Ebrahim Baytieh and Keith Bogardus—not only possessed TREDs in the 2011 trial stemming from the gruesome jailhouse murder of inmate John Derek Chamberlain, but also introduced them into evidence (see above, Exhibit 70) and questioned a deputy on the record about the contents. (According to Sanders, deputies shared TREDs in a few cases where an entry helped prosecutors win, an ugly reality that he says means the local criminal justice system can’t be trusted.)

Denying knowledge of the TREDs is problematic for the DA and, of course, Cropley. Rackauckas has sent Baytieh on public relations missions to strenuously deny all OCDA culpability in the snitch scandal and to attack critics like Sanders and Erwin Chemerinsky, the founding dean of UC Irvine’s School of Law. Bogardus appeared formally as an OCDA representative in Dekraai where the deputies lied about the existence of TREDs. With Goethals observing, Baytieh and Bogardus remained silent when colleagues Dan Wagner and Howard Gundy mocked Sanders as a nut case who’d concocted a jailhouse snitch scandal that was nothing more than a wild conspiracy theory.

Who else remained noticeably silent after it was clear that Seth Tunstall and Ben Garcia, two of the key deputies running the jailhouse informant program, committed perjury as Goethals detailed: Cropley, who sat in the front row behind his prosecutorial pals as the scandal unfolded.

(Rackauckas, Hutchens and Cropley—all well-paid government employees sworn to public service as a top priority—have refused to punish the offending officers.)

In the past, law enforcement officials here have misled the appellate court by taking advantage of the unwritten presumption that cops don’t lie, but based on their keen questions at this week’s Dekraai hearing, the justices seem alert to potential trickery.

Hutchens: Asleep as alwaysEXPAND
Hutchens: Asleep as always
Awesome cartoon by Bob Aul

Presiding Justice O’Leary, for example, observed it’s puzzling that OCDA officials benefited for years from the sheriff’s jailhouse informant program and simultaneously claim to be clueless about how they got so lucky.

Justice Richard Fybel rejected Cropley’s contention that Goethals’ recusal order was a knee-jerk emotional response rather than a legally reasonable conclusion that Rackauckas’ office has proven it can’t be independent from cheating law enforcement partners inside the sheriff’s department.

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Fybel also asked the most penetratingly insightful question of the hearing: If sheriff’s deputies “deceived” prosecutors, too, where is the evidence that OCDA pressed them for the TREDs when they realized they’d been duped?

“I didn’t see any evidence in the record that the DA’s office ever asked the sheriff’s department for the documents,” the justice added.

Cropley stuck to his false narrative, responding, “It’s difficult to ask for something of which you had no knowledge of.”

He insisted the recusal was unfair to Rackauckas’ office because “the DA is now in the best position to insure compliance” with Goethals’ court orders.

On the other hand, Deputy Public Defender Scott Van Camp told the appellate panel that the prosecutor’s office “showed it would do nothing” in response to cheating deputies,

The underlying notion of Fybel’s question annihilates the presentation that OCDA officials have aggressively obeyed ethical rules.

As recently as a Sept. 22 hearing in Orange County’s central justice center, a stunned Goethals asked government officials why they continue to disobey his January 2013 discovery order in Dekraai

“When should I expect full compliance with my lawful orders?” the judge asked. “Three and a half years isn’t enough time?"

Deputy DA Wagner, the lead Dekraai prosecutor, and Elizabeth Pejeau, a deputy county counsel representing Sheriff Hutchens, hemmed and hawed. Both admitted additional records hidden from Sanders would be forthcoming but didn’t give themselves a deadline as they continue to demand that the state execute the defendant. Goethals scheduled a follow-up hearing for next week.

Meanwhile, the appellate justices will determine within 90 days if Goethals’ recusal order was legally permissible and, if so, the AG’s office then must take over prosecution duties during the penalty phase of Dekraai.

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