Caught Backing Lying Sheriff's Deputies, Orange County Prosecutors Get Booted In Murder Case
Wearing invisible but effective, reality-bending blinders: OCDA Chief of Staff Susan Kang Schroeder (far left) with homicide prosecutors Dan Wagner, Scott Simmons and Howard Gundy
R. Scott Moxley / OC Weekly
Orange County citizens were winners and losers today when a judge issued a historic ruling that recused District Attorney Tony Rackauckas from future prosecution duties against the killer in the 2011 Seal Beach salon massacre because of repeated government cheating.
We're winners because Thomas M. Goethals sent an unmistakably necessary message that--at least on this day, in this case and with this superior court judge presiding--law-enforcement corruption would not be ignored, as Rackauckas deputy Howard Gundy demanded in oral arguments this morning.
Prior to the ruling, Gundy claimed he was "astonished" that anyone would take seriously the work of Assistant Public Defender Scott Sanders, the lawyer representing Scott Dekraai.
It's actually dumbfounding at this point that Gundy, an officer of the court who's supposedly committed to justice, would take such a reality-bending stance.
During an extensive, multiyear probe, Sanders overcame entrenched law-enforcement sneakiness to uncover proof that Orange County Sheriff's Department (OCSD) deputies violated the rights of in-custody defendants--including Dekraai--by collecting illegally obtained confessions with the use of dubious informants, hid exculpatory evidence to aid prosecutors and lied under oath when questioned about the tactics.
We're losers because even after Goethals announced that the cheating deprived Dekraai of his due-process rights, stalled the penalty phase of the case to the horror of the victims' families and required judicial sanctions, Gundy and Dan Wagner, head of the OCDA homicide unit, still stubbornly refuse to acknowledge reality.
"We respectfully disagree [with Goethals]," a solemn Wagner told gathered reporters after the ruling. "We felt strongly going into today about our position."
I've respected Wagner for years, but let there be no mistake about what transpired.
More than a year ago, OCDA angrily denied the existence of any problem whatsoever; then labeled revelations of cheating as innocent, brain fart-type errors; then blasted Sanders as the evil-doer in the case because he was asking difficult questions; then sat by idly while deputies committed perjury; and then wildly shifted blame for their violations of court rules on the desires of a supposedly warped federal prosecutor who is now a sitting county judge, Terri Flynn-Peister. The office finally employed the Gundy-led strategy that rested on a Hail Mary prayer: Please, Lord, if we close our eyes extra tightly and pretend there hasn't been cheating, then perhaps others will adopt our stance and we can escape our sins.
"The [OCSD deputies'] lying was extraordinary," Sanders said at today's hearing. "The fact that they lied and the amount that they lied isn't a debatable point. The question shifts to the DA's office: What have they done [in response]? They should have picked up the baton and gone after the deputies. . . . This is some of the most deplorable conduct. What's supposed to happen is that they find this as despicable as we do, but there doesn't appear to be a willingness to stop it."
Astonishingly, Gundy replied that Sanders' argument was "legally nothing" and would have received an "F" grade if it had been made in law school.
"The intersection of the law and the facts does not support [Sanders'] position," he said.
The judge, a former OCDA homicide prosecutor, disagreed today and altered a previous decision.
In an August ruling, Goethals declined to meaningfully punish the prosecution for cheating. But Sanders later discovered evidence that OCSD hid TRED, an entire jail-records system, in the Dekraai case as well as in all other criminal case for more than a decade, convinced the judge to reopen a special evidentiary hearing and boxed in jail deputies Ben Garcia and Seth Tunstall, who in February pretended they'd suffered amnesia about the system during last year's hearings.
"After listening to their recent testimony and comparing it to the prior testimony of both deputies, this court concludes that deputies Tunstall and Garcia have either intentionally lied or willfully withheld material evidence from this court during the course of their various testimonies," Goethals wrote in today's ruling. "To perhaps clarify the record, this is not the first time during this protracted hearing that deputy Tunstall's testimony lacked credibility. This court did not believe the earlier testimony of either Tunstall or Deputy District Attorney Eric Petersen when they unsuccessfully tired to shift responsibility for a serious discovery breach in another case to the shoulders of a former federal prosecutor."
Though he declined a defense request to remove the death penalty as a future option in the wake of the cheating, the judge is holding Rackauckas responsible for the government-caused mess.
"As the chief law-enforcement officer in this county, the district attorney is responsible for the actions of his agents," Goethals wrote. "In this case, the evidence demonstrates that some of those agents have habitually ignored the law over an extended period of time to the detriment of this defendant. . . . After a period of what can at best be described as benign neglect concerning the actions of his law-enforcement partners, the district attorney cannot or will not in this case comply with the discovery orders of this court and the related constitutional and statutory mandates that guarantee this defendant's right to due process and a fair trial. Therefore, the defendant's motion to recuse the office of the Orange County district attorney must be and is granted."
Rackauckas' staff in the courtroom audience-seating section reacted immediately to the ruling by shaking their heads and pounding out angry phone text messages. One veteran prosecutor even referenced OCDA's revenge desire to kill Goethals' career on the bench, saying, "At least, he won't be around much longer."
(The judge's term expires next year.)
At a post-ruling press conference after more than an 90-minute debate about how to react, Wagner refused to say if OCDA will pursue perjury charges against the lying deputies or announce if he will file an appeal. The judge stayed the effectiveness of his ruling for eight days to give him time to pick a course. In coming days, OCDA and the California Attorney General's Office, which Goethals named as replacement prosecutors in the case, will meet, according to Wagner.
The aftermath of Goethals' ruling leaves the loved ones of the massacre angry and frustrated with the delays in a resolution. Bethany Webb, whose sister was a victim, told reporters she couldn't comprehend why Sheriff Sandra Hutchens' deputies felt the need to cheat especially given that Dekraai confessed to the killings shortly after the murders.
"This is a broken [criminal justice] system," she said.
Paul Wilson, another articulate speaker who lost his wife at the salon, was more willing to side with prosecutors.
"My nightmare continues," Wilson said. "I'm still in disbelief [at the ruling]. I'm really angry. I don't see how Mr. Sanders gets up in the morning and looks in the mirror. [His argument today] was despicable. [Dekraai] murdered eight people. That is the fundamental fact of the case. The sheriff withheld evidence? Who cares?"
Nobody with a heart can feel anything but sympathy for Wilson. He doesn't deserve the position Dekraai placed him in three years ago. But an Orange County criminal-justice system that adopts his view that government agents can do whatever they want in a capital-murder case, no less, isn't really a justice system.
Goethals recognized that fact and deserves immense applause for doing the right thing.
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