To convince the public and curious U.S. Department of Justice (DOJ) officials that the Orange County jailhouse-informant scandal is unfairly tarnishing his reputation, District Attorney Tony Rackauckas is employing a barrage of deceitful rhetorical arguments, including circular logic, slippery slopes, red herrings, non sequiturs and, with pronounced relish, straw-man tactics. But Rackauckas hit a new low in early March at a community forum. That's when the 72-year-old DA and one of his top aides asserted diametrically opposite stances to sell the same talking point: The snitch scandal is an absurd fiction unworthy of attention.
"The notion that the criminal-justice system is broken or the only way for somebody to get justice is by way of luck—I absolutely disagree with that," loyal Rackauckas lieutenant Ebrahim Baytieh stated.
Baytieh's remark aimed to undercut fellow panelist Assistant Public Defender Scott Sanders, who has attributed partial luck to his unraveling of the more than two-year-old scandal that has earned national alarm and wrecked more than a dozen cases, as well as prompted cries for a DOJ probe and demands for Rackauckas' resignation. In late 2014, Sanders accidentally discovered long-hidden law-enforcement records called TREDs. While much of what is contained in TREDs is routine bureaucratic gobbledygook on inmates, they also include evidence that contradicts government denials of using snitches in unconstitutional jailhouse operations. If the DA and Sheriff Sandra Hutchens had been able to maintain TRED secrecy, as their offices had done for more than a quarter of a century, Sanders, judges, juries, defense lawyers, defendants, reporters and citizens would still be clueless about systemic cheating that has contaminated our courthouses.
But Rackauckas was stuck at the forum. He couldn't regurgitate Baytieh's no-flukes spin. In fact, the county's top lawman has been using claims of unadulterated luck to explain away corrupt prosecution-team acts since the inception of the scandal in January 2014.
As detailed in the Weekly's March 25, 2015, cover story, "How Tony Rackauckas Took a Slam Dunk Death Penalty Case and Turned It Into His Worst Crisis," some law-enforcement officials here cheat even when it's not necessary to win a conviction, as was the case in People v. Scott Dekraai. Immediately after he committed the worst mass killings in county history in October 2011, Dekraai surrendered and confessed. Given the historically pro-death-penalty sentiments of Orange County juries, it seemed highly probable, if not a near guarantee, the shooter would receive the ultimate punishment.
So far, so good on the non-scandal front. Cops captured the admitted killer without any other casualties. With Los Angeles-based TV news cameras rolling, Rackauckas expertly played Mr. Justice Seeker for the eight victims and their families by declaring he'd win the death penalty. But our DA's contempt for the rule of law would soon reveal itself, at least initially, behind the scenes.
First-year law students and rookie cops are expected to understand a key, 52-year-old U.S. Supreme Court ruling called Massiah, which bans prosecutors, police and their agents, such as informants, from questioning pretrial defendants after they've been charged and have legal representation. The constitutional principle instituted by the nation's Founding Fathers, who'd been subjected to the whims of royal government officials working in the name of the King of England, asserts the state cannot force a citizen to incriminate him- or herself in a criminal case.
Rackauckas began his career as an Orange County prosecutor during the height of President Richard Nixon's pre-Watergate power in 1972 and, in the 90s, served a six-year stint as a superior court judge handling felony trials. As DA, he knows Massiah limits his ability to engage in the win-at-all-costs mentality Sanders accuses him of practicing. Now in the midst of his fifth, four-year term, Rackauckas is single-handedly the most powerful actor in the local criminal-justice system. While the Orange County district attorney's office (OCDA) employs numerous outstanding prosecutors, if the DA himself is a scoundrel, that system likely stinks.
There's no question OC law enforcement used Fernando Perez—a Mexican Mafia thug, career criminal and secret jailhouse snitch—to trample Massiah in the Dekraai case. Sanders proved it. Dan Wagner, head of the OCDA homicide unit, reluctantly conceded the point after energetically fighting a losing battle with reality in 2014. Superior Court Judge Thomas M. Goethals followed by officially noting the violation.
That old news apparently hadn't reached the DA by the time he sat at the recent community forum with more than half a dozen security guards and staffers hovering nearby. He blasted Sanders for misrepresenting facts and defended the use of Perez as legally righteous. A future federal prosecutor—or California Attorney General Kamala Harris, if she'd stop ignoring prosecutorial misconduct in her jurisdiction—should pay careful attention to Rackauckas' oratory two-stepping.
"Why would anybody be interested in using an informant in a case like Dekraai, where the evidence was exceptionally strong that he was the guilty party—wasn't any question about it?" the DA rhetorically asked the audience. "And there wasn't much question about what he'd done and how he'd done it."
All true, but Rackauckas then explained his rationale for taking acts that, he surely didn't realize at the time and still won't admit, sparked the snitch scandal and embarrassing headlines in The New York Times, National Review, Huffington Post, Salon and the Washington Post. He relayed a story about Edward Charles Allaway's 1976 mass killing at Cal State Fullerton. At the time of that massacre, he'd been a prosecutor for about four years, didn't handle the case, but remembered for the audience that Allaway successfully pleaded insanity after five doctors diagnosed him with a major mental disorder: paranoid schizophrenia. He'd undergone electric-shock therapy before the killings and believed Hollywood pornographers were forcing his wife into X-rated films.
To Rackauckas' outrage, Allaway received, in his view, wrist-slap punishment: The inmate has lived the past 40 years confined to the criminal ward of a state mental institution. Dekraai wasn't going to be so lucky, the DA plotted. "There were certainly some concerns about the possibility of him deciding to, or his counsel deciding to go after an insanity plea," he recalled about his thoughts following the arrest. "Dekraai had some psychiatric issues in his past."
Rackauckas would have you believe he and other authorities, including Wagner—who previously worked on the Allaway matter—remained idle about their desire. That's when luck—astronomical, Powerball-jackpot-winning luck—struck, according to the DA. With an inmate population exceeding 6,000 and spanning two separate jail facilities, Perez landed in the cell next to Dekraai.
In a tale designed to trigger exceptions to Massiah, Rackauckas insists the Mexican Mafia snitch desperate to avoid a pending life-in-prison sentence "coincidentally" found himself in position to meet Dekraai, test his sanity and learn about his trial-strategy discussions with Sanders.
If Perez didn't ask Dekraai questions to elicit statements about the crime and was, as Rackauckas claims, "simply . . . a listening post," then all the evidence he collected could be admitted in court.
That is precisely the DA's spin: "[Perez] was there [in OC Jail]. He heard this person talking. [Dekraai] was volunteering information."
Note the passiveness of Perez's character in Rackauckas' fantasy.
But law enforcement's own records show the rat worked around the clock to befriend Dekraai, whom he despised, and repeatedly asked questions government officials wanted answered, regardless of Massiah prohibitions.
Fernando, did you question Dekraai?
"I was conversating [sic] with him, and I just asked him, like, you know, 'Why?'" Perez recounted for officials in a document possessed by Rackauckas. "You know, 'What happened?' You know. Then he just told me. He goes, 'You really want to know?' And I said, 'Yeah, hey, you know, explain to me what happened.'"
(My emphasis on the first-round of Perez's questions.)
Rackauckas' revisionist history doctored his snitch's admission.
"[Were the Dekraai statements] something elicited by this informant or was it just statements he was making and our people [mainly Wagner] decided that, uh, naw, [Perez] wasn't asking any questions," he told the audience.
Back from the DA's alternative universe, for 10 days in October 2011, Perez—who was also an FBI snitch at the time on unrelated federal cases—conducted a sly Q&A operation with the OCDA's biggest target.
To believe their version of events, Rackauckas and Wagner must be the luckiest men to ever live. Not only had the hoodlum accidentally landed next to Dekraai (miracle 1), but he also decided on his own to exhaustively question the killer (miracle 2), recorded his conversations in handwritten notes (miracle 3), contacted law enforcement about his discoveries out of the goodness of his heart (miracle 4) and somehow knew to collect information on the one topic that concerned prosecutors most (miracle 5).
At the forum, the DA beamed that the Perez scoops were "actually pretty good darn evidence" to "rebut any possible insanity defense."
To journalists who can't quite figure out the snitch scandal, OCDA's media operation run by Susan Kang Schroeder likes to push the assertion that Perez could ask Dekraai questions if he wasn't a secret government agent, which is one of their most laughable deceits.
In reality, by the time of Dekraai's arrest, the gangster had been a productive, veteran jailhouse rat.
• On July 30, 2010—442 days before the Seal Beach massacre—sheriff's deputies bolstered Perez's gangland credibility by staging a fake raid on his cell that netted a bag of methamphetamine. Proof of the game? Deputies conducted no legitimate investigation, and Rackauckas' staffers filed no narcotics possession charges.
• On Aug. 14, 2011—62 days before Dekraai entered jail—deputies noted in records long hidden from Sanders that Perez is a "confidential and reliable informant."
• On Sept. 1, 2011—44 days before Dekraai entered jail—Perez asked his handlers to move government targets to cells next to him so he could secure confessions. "Now it's time to go to work," he wrote about what he called for himself "Operation Daylight."
• On Sept. 11, 2011—34 days before Dekraai entered jail—Perez wrote a secret note to OC Jail Special Handling Unit deputy Ben Garcia, saying, "I love my little job I got."
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Despite those facts, Rackauckas claims the snitch eventually worked for the government (and risked his life) without any thought—not even a wink-wink deal—for reward. The man who helped manage the Mexican Mafia's "hard candy" kill list in OC for years had grilled Dekraai merely because it was the right thing to do, so the story goes. Perez committed perjury on this point during special evidentiary hearings in Dekraai while prosecutors Wagner and Scott Simmons remained mum.
OCDA's no-deal deal was formally executed on March 4. More than six years after his weapons possession by a felon conviction and a whopping 31 sentencing delays, Rackauckas staffers urged Superior Court Judge Gregg L. Prickett to erase Perez's three prior felony strikes. Prickett partially obliged, dropping two. The 34-year-old snitch, who is presently in the Federal Witness Protection Program, won a sweetheart arrangement that might have him walking the streets again in seven years or less.
See folks? There's no snitch scandal. There's just luck, coincidence and blemish-free crime fighting in Orange County.
"There's no criminal conspiracy in this office," a defensive Rackauckas told reporters in January after his handpicked outside review committee labeled OCDA management a frightening mess. "Um, all of us in the office know that we're not conspirators."