How Tony Rackauckas Took A Slam Dunk Death Penalty Case And Turned It Into His Worst Crisis

DA Rackauckas: If I only had a brain . . . I'd unravel every riddle for any individ'le, in trouble or in pain
DA Rackauckas: If I only had a brain . . . I'd unravel every riddle for any individ'le, in trouble or in pain
Kevin McVeigh

Orange County's worst mass shooting, the so-called 2011 Seal Beach hair-salon massacre, began as a traumatizing event for all, but it has devolved into one of the most polarizing legal struggles to hit our legal system. The question isn't about Scott Dekraai's guilt. Dekraai admitted to police that he was the killer within minutes of the shooting. Controversy swirls, however, around the tactics of prosecutors and sheriff's deputies trying to impose a death-penalty punishment rather than a 200-plus-year prison sentence without the possibility for parole. With one embarrassing revelation after another, the battle has grown painful, especially for the baffled families of the victims. To help understand why Superior Court Judge Thomas M. Goethals, himself an accomplished former prosecutor, this month made a historic decision to recuse Tony Rackauckas and his district attorney's office (OCDA), we are providing a chronology of events:

2011

Oct. 11: Just after lunch, heavily armed and wearing a bulletproof vest, Huntington Beach resident Dekraai, who has suffered post-traumatic stress disorder (PTSD) and is disillusioned from a child-custody dispute, murders Michelle Marie Fournier, his former wife, as well as seven other innocent people–Laura Webb, Christy Lynn Wilson, Lucia Bernice Kondas, Michele Daschbach Fast, Randy Lee Fannin, Victoria Buzzo and David Caouette–at Salon Meritage. Dekraai, a former tugboat crewman, also critically injures Hattie Stretz. Police capture him less than a mile from the gruesome crime scene.

Oct. 13: A candlelight vigil honors the memories of the victims.

Oct. 14: At a press conference with national media coverage, Rackauckas labels Dekraai's crime "a selfish, cruel act of senseless violence," files charges, announces his desire for the death penalty and promises, "We will seek justice for each of these lives to the best of our ability."

Oct. 15: The chances of a jury granting Rackauckas' death-penalty wish are likely overwhelming. In fact, veteran courthouse observers say law enforcement could do nothing and the defendant would still land on San Quentin State Prison's death row. Nevertheless, government officials are eager to discover legal strategies contemplated by Dekraai's lawyers and to obtain incriminating statements that would undermine a potential insanity defense. Because the defendant has been formally charged and is legally represented, Orange County Sheriff's Department (OCSD) deputies and their agents, as with jailhouse informants, are banned from taking steps to interrogate him. Authorities can use incriminating statements if, for example, an inmate not working in cooperation with them overhears information. On this day, Dekraai is moved into a cell next to Fernando Perez, a Mexican Mafia killer, notorious liar and one of OCSD's most prized informants. The third-striker hopes to avoid a life-in-prison punishment for his crimes and wants to be released from custody, so Perez pretends to be Dekraai's pal and writes detailed notes of his questioning of the defendant. Years later, after the illegal scam is discovered, OCSD special-handling deputies Ben Garcia and Seth Tunstall (with the backing of OCDA) pretend Perez's placement hadn't been orchestrated, but rather was the result of innocent orders of the jail nursing staff. That lie will eventually cause serious trouble for Rackauckas.

Oct. 18: According to prosecutors' best version of events, Deputy Garcia tells OCDA investigator Bob Erickson, who works for homicide-unit boss Dan Wagner, that Perez (called "Inmate F") has been a "reliable informant" and is engaged with Dekraai.

Oct. 19: Deputies Garcia and Zachary Biecker, Erickson, Wagner, prosecutor Scott Simmons, and Seal Beach Police Department detective Gary Krogman interview Perez about Dekraai. Erickson says to the informant, "We just want to make absolutely certain you are here because you want to be here, not because we're making any sort of promises or anything to you." Though he has labeled his job for the government "Operation Daylight" because he wants freedom, Perez responds, "Exactly. I understand." Perez is serving as a secret government agent improperly questioning Dekraai in direct violation of 1964 U.S. Supreme Court case Massiah v. United States, yet his work is allowed to continue. If the law had been followed, Wagner would have immediately ended the interview when the informant admitted he'd questioned the defendant. The government can't benefit from illegally obtained evidence. Wagner later said the reasoning for his failure to halt the interview is a mystery, testifying, "I don't know."

Oct. 19 (5:37 p.m.) to Oct. 25 (4:39 a.m.): OCDA and OCSD activate a jail-cell recording device to capture 132 hours of Dekraai talking to Perez about the shooting by posing as sympathetic and asking questions such as "What are you thinking about?" and "What happened?"

Oct. 24: Dekraai loses his private counsel, Robert Curtis, and is appointed the services of Assistant Public Defender Scott Sanders, a tireless underdog with keen investigatory skills who, with the assistance of Lisa Kopelman, is unafraid to battle the county's most aggressive, better-funded prosecutors.

Nov. 17: Investigator Erickson writes a memo to Erik Petersen–the deputy district attorney with the authority to cut a deal with Perez–saying the informant's "intelligence will likely greatly enhance the prosecution of Dekraai, especially in the event there is an insanity plea entered." Erickson tells Petersen he's providing the information for his "consideration" before Perez is sentenced. He also reveals a concern: "I respectfully request that you keep [Perez's] name, as it relates to the Dekraai case, confidential. Nothing about [Perez] or his statements regarding the Dekraai case have been discovered to the defense." For 1,044 days, OCDA hides this memo from Sanders. Both Wagner and Simmons will later claim they forgot to open an email attachment that included the memo about their death-penalty target and, therefore, didn't know it should have been released.

Nov. 29: Though he'd already confessed, Dekraai pleads not guilty.

Dec. 29: Erickson writes a report on Perez, omitting that he's an informant.

Assistant Public Defender Sanders (standing) and defendant Dekraai
Assistant Public Defender Sanders (standing) and defendant Dekraai
Josue Rivas/OC Weekly

2012

Jan. 12: In an attempt to speed along the case, OCDA indicts Dekraai.

Jan. 18: "What we want to do here is get this case to trial as soon as we can get it over with for the people, for the victims' families," Rackauckas states, "so we can have justice at the earliest time we can get it."

June 1: Wagner writes an internal memo to colleagues strategizing the use of Perez. "Before deciding if/when/how to disclose Fernando's identity to the Dekraai defense lawyers, we are going to need to talk to the prosecutor(s) on Fernando's other cases and analyze several things." Among the ideas swirling in Wagner's mind is the possibility of asking colleagues not to call Perez as a witness in their cases, a move that might enhance the informant's credibility against Dekraai. Yet six months later, the prosecutor will file a declaration under oath that misleads Goethals and Sanders about Perez's true identity as a longtime government agent who desperately wants to receive benefits.

Oct. 11: On the first anniversary of the slayings, emotionally drained well-wishers in Seal Beach celebrate the lives of the lost.

Oct. 15: Largely in the dark about Perez's jailhouse activities for the government against his client, Sanders files his first discovery request.

Oct. 18: OCDA refuses Sanders' request for the evidence but the defense lawyer doesn't quit.

Oct. 19: Wagner tells Sanders he doesn't need to comply with the discovery request because he won't call Perez as a witness and will instead use recordings of Dekraai talking to the informant. Sanders says he has a right to call Perez as a witness and to know his background, but the prosecutor still refuses.

Dec. 28: Sanders files a motion to compel OCDA's compliance with his discovery request.

Judge Goethals refused to ignore brazen law-enforcement cheating
Judge Goethals refused to ignore brazen law-enforcement cheating
Josue Rivas

2013

Jan. 18: Wagner files his opposition to Sanders receiving Perez's records, arguing "fundamental fairness" calls for secrecy.

Jan. 24: The prosecutor's knowledge of his informant's ubiquitous activities is enhanced when Petersen sends him an email list of nine cases (not including Dekraai and several other matters). At the next day's hearing, Wagner will allow Goethals to believe Perez is just a regular inmate who accidentally stumbled onto Dekraai's spontaneous ramblings. The sin of omission is committed in hopes of blocking Sanders' access to hidden evidence.

Jan. 25: Goethals hears oral arguments on the discovery dispute, rejects OCDA's position as contrary to the law and orders production of the records. Later, in 2014, the judge will ignore Wagner's June 1, 2012, memo and Petersen's Jan. 24, 2013, email on Perez's prolific service, to make a reality-bending ruling in favor of Wagner. He oddly declared, "This prosecutor was unaware of who Fernando Perez was and what prior services he had performed for law enforcement."

Feb. 8: The extent of OCDA's massive records suppression begins to become apparent. During the next eight months alone, the agency will surrender to Sanders more than 8,200 pages, plus 1,936 audio and video files.

May 13: Wagner and Erickson meet with Santa Ana Police Department detective Gonzalo Gallardo. Wagner asks the officer if informants were "ever" used to get legally represented defendants to talk about their charges in violation of Massiah. Gallardo answered, "There was a time we did use informants, um, and we basically [were] under the direction of a district attorney." The prosecutor must have cringed at the admission, asking specifically if Perez had been used in such a way. "Uh, I believe we did," replied the veteran officer. "I think he did provide information on, on some murder suspects." Law-enforcement officials will later claim Gallardo's identification of "a district attorney" actually meant an assistant United States attorney.

Oct. 10: Inside Orange County Superior Court, the surviving daughter of Dekraai's murdered ex-wife files a wrongful-death lawsuit against the killer for emotional distress and economic damages.

Oct. 11: OCDA chief of staff Susan Kang Schroeder tells a reporter, "We are frustrated the defense keeps up with the delay tactics. We've been ready to go to trial for a long time."

Homicide prosecutors Simmons, Gundy and Wagner
Homicide prosecutors Simmons, Gundy and Wagner
Josue Rivas/OC Weekly

2014

Jan. 31: Following an exhaustive investigation into the questionable use of informants and exculpatory-evidence hiding, Sanders files a bombshell, 505-page motion declaring the cheating means OCDA and OCSD officials can't be trusted as honest actors in a death-penalty case. The motion seeks dismissal of the capital punishment option and suggests Dekraai receive a 400-year sentence without the possibility for parole. Sanders claims the OCDA has a "win at all costs" mentality. Prosecutors are furious. Wagner claims the attack on their credibility is "scurrilous."

Feb. 7: Goethals calls Sanders' report "serious," and Wagner asks that it be sealed from public view, a point he wins for one week.

Feb. 21: Sanders introduces a recusal motion against OCDA.

March 4: Deputy DA Stephan Sauer tells Goethals, "Prosecutors and officers are eager to have the opportunity to refute the allegations and set the record straight." But, he insists, the allegations aren't relevant to the Dekraai case. Meanwhile, Wagner will admit his "legal reasoning was flawed" in originally refusing to release records.

March 7: To determine if Sanders' motions have merit to conduct a special evidentiary hearing, Goethals hears oral arguments. Sauer says OCDA is not afraid of the truth, but this is not the time or place to do so. Sanders says the prosecution team has been playing unethical games and reiterates the need for a probe. The judge concurs, saying he's open to following the evidence trail.

March 18: Under the protection of U.S. marshals, Perez, a killer nicknamed "Wicked" who has brazenly lied in court before, begins several days of testimony. He claims to the delight of prosecutors that his work on Dekraai hadn't been in coordination with authorities and that he was motivated solely by his hatred for his target–not winning a punishment reduction. Even though he tries to downplay his informant work, he is unable to explain to Sanders why, in other cases, he has written notes to OCSD that say, "My mission is done" and, "I love my little job I got."

March 24: Wagner is placed under oath during multiple days of testimony, and Sanders learns that his 505-page report prompted OCDA to conduct an investigation into the allegations. The public defender gets the prosecutor to admit the internal probe supposedly generated no notes or reports that would trigger their discovery. Major case law from Brady v. Maryland requires prosecutors to surrender to the defense all exculpatory evidence, as well as information that can impeach government witnesses. Wagner concedes "begrudging respect" for Sanders' work.

April 7: Burglar, robber, carjacker and Mexican Mafia killer Oscar Moriel, another prominent informant whose snitching services were also, according to the government, accidentally hidden for years from defense lawyers, testifies. It turns out that Moriel has told SAPD detectives working with prosecutors that he'll be able to recall memories to aid the government "and make it seem like yesterday" if he's rewarded with "options" that avoid spending the remainder of his life in prison. SAPD detective Charles Flynn responded, "You do a lot; we do a lot. You do a little; you get a little. . . . Understand?" Flynn also guarantees "no one" will learn of the arrangement. The detective ordered Moriel to violate Massiah by enticing a "fresh" confession from a legally represented, pretrial inmate. With cooperation, the cop says, he will help enroll the thug in the U.S. military. "Then, you know, you can get away [with killing people]," Flynn brags. "That's cool," Moriel replies.

April 9: Undermining the credibility of his own agency's confidential-informant index, Senior Deputy District Attorney Howard Gundy ridicules Anaheim police officer David Hermann, who in 2000 labeled Perez as untrustworthy and cautioned, "DO NOT USE AS A CI."

April 10: Gundy says Sanders' allegations of law-enforcement cheating are "vile and outrageous," but he doesn't cite a single error.

April 18: Goethals orders OCDA to surrender more previously hidden records.

April 22: Gundy admits OCDA violated Massiah in the Dekraai case and agrees to suppress illegally obtained statements, all in hopes of ending the hearing and blocking Deputy DA Petersen's testimony. Goethals doesn't agree. Petersen begins testifying and states that he has "an evolving" understanding of his Brady obligations and never read any of the withheld informant notes.

April 28: Dekraai pleads guilty on all counts, enhancements and special circumstances in the indictment.

May 2: Goethals advises Dekraai he faces 232 years to life in prison without parole or the death penalty and asks if he wishes to withdraw his guilty plea. The defendant says no.

May 5: Tunstall begins multiple days of testimony in which he asserts OCSD doesn't have an informant program, there are no records to solve the mystery of Perez's jail movements, and the failure to surrender critical Moriel informant records in the murder trial of Leonel Vega wasn't OCDA's fault. Later, he blames former Assistant United States Attorney Terri Flynn-Peister (now a state judge) for ordering that Moriel's notes be hidden from defense lawyers. All of his claims will eventually be eviscerated.

May 6: Gundy expresses anger that his OCDA and OCSD colleagues are being placed under oath before testifying and that Sanders could have avoided this "indignity" by simply labeling their mistakes "negligence," not intentional corruption.

May 7: During his multiple days of testimony, Garcia reiterates OCSD has no independent informant program, there's no way to know why inmates are moved, and special-handling deputies such as himself and Tunstall are at the mercy of jail nurses for inmate housing assignments. All three claims will eventually be destroyed.

May 8: SAPD detective David Rondou–who had testified that good investigators record their interrogations and yet hadn't taped at least seven key meetings with Moriel–hits the witness stand and will tell the defense lawyer he "prays" for his soul.

May 15: Sitting on the witness stand, trying to explain why he failed to turn over discovery, Deputy DA Mark Geller delights Gundy by agreeing that Sanders is an "imbecile."

May 21: Deputy William Grover–who is a central figure in the supposedly nonexistent informant program–testifies his informant work "is less than zero." In coming days, Sanders ponders why, then, one of Grover's OCSD performance evaluations praises him for conducting a training session with the assistance of "confidential informants."

June 26: Flynn-Peister adamantly denies Tunstall's claim that she ordered him to hide informant evidence, an assertion believed by Goethals.

July 25: In arguing that OCDA is under no obligation to surrender key records in the possession of Tunstall, Gundy declares the deputy isn't part of the prosecution. "To say [Tunstall] is not a state agent is disingenuous," the judge says. Goethals then reads aloud case law that declares deputies and cops are part of the prosecution team and that prosecutors can't duck discovery obligations by claiming to be ignorant of records in police-agency possession. Gundy tries a last-ditch, losing argument, claiming Sanders can't win the point unless he can prove OCDA purposefully hid records. Sanders asks the court to end the death-penalty option in exchange for immediate sentencing of life in prison. Goethals refuses.

Aug. 4: Though he declines to name the liars, Goethals rules that law-enforcement officials committed perjury while answering Sanders' questions. He blames prosecutor tactics for delaying the case, but the judge won't recuse OCDA or end the death penalty as an option because, he asserts, the government's misconduct wasn't intentional.

Nov. 7: Sanders files a motion for reconsideration of the August ruling after discovering TRED, a secret jail-housing records system that Garcia, Tunstall and Grover pretended never existed and contradicts their prior testimony. He also obtains an OCSD memo to an assistant sheriff that reveals, also contrary to deputies' testimony, the department had approved a Massiah scam conducted in the disciplinary-isolation section of the jail to get an illegal confession.

Dec. 11: Goethals agrees reconsideration of his prior ruling is necessary.

 

With Wagner by his side, DA Rackauckas prepares to address reporters after his recusal and Kamala Harris, California's attorney general, came to his rescue, seeking a reversal of Goethals' historic ruling
With Wagner by his side, DA Rackauckas prepares to address reporters after his recusal and Kamala Harris, California's attorney general, came to his rescue, seeking a reversal of Goethals' historic ruling
R. Scott Moxley / OC Weekly

2015

Jan. 28: Superior Court Judge James A. Stotler recuses himself from presiding over Sanders' defense of accused killer Daniel Wozniak, admitting he'd been rooting for the public defender to fail.

Feb. 9: Under oath, Tunstall says he'd written a search-warrant affidavit undermining his 2014 testimony that OCSD had no jailhouse-informant program. Under Sanders' grilling, the deputy–who has a doctorate in psychology and two master's degrees–tries to evade the affidavit's contents. Sanders asks if he stood by his word choice that he "cultivated . . . numerous" informants. No, says the deputy. He maintains he'd botched basic English on the two words. And had he "supervised" informants, as the affidavit states? Nope, he replies, "Guess that's the wrong word again."

Feb. 17: Trying to explain why he hid the existence of TRED records, Garcia says he thought he didn't have to honestly answer questions under oath because of OCSD's command to keep the system top secret.

March 12: Sanders says the willingness of OCDA to allow false testimony is alarming. Gundy claims he's "astonished" by the emptiness of Sanders' work, claiming that it would get an "F" in law school. Goethals rules that deputies Garcia and Tunstall, as well as Deputy DA Petersen, committed perjury in the Dekraai special hearings, determines OCDA can't be trusted to act ethically, recuses the entire office, bans the introduction of aggravating evidence unrelated to the killings, appoints the California Attorney General as replacement prosecutor, and keeps the death penalty as an option.

March 15: After his office spent 14 months strenuously fighting the legitimacy of Sanders' claims, Rackauckas admits his prosecutors made "missteps" in the case. "We should have done more to learn the history of the confidential informant [Perez] that we were working with that was offering information in the case, and frankly, I think that's the greatest mistake, and a lot of things have resulted from that." The DA's campaign manager suggests Goethals' recusal ruling wasn't based on the facts, but rather on petty retaliation to the office. Gundy blames failures on prosecutors not being "fully apprised" of OCSD's informant activities.

March 17: David Whiting, a columnist for the Orange County Register, calls the 72-year-old Rackauckas "smart enough and courageous enough" to finish his current four-year term, after which, he believes, it will be time for "new blood" as DA.

March 20: Attorney General Kamala Harris, who has stood by in a non-critical, partnering stance with OCDA, appeals the recusal motion and claims she will conduct an "independent" investigation. Rackauckas says his prosecutors have been "honest and hardworking" public servants and blames "the system" for causing delays. Victims' families blast the DA and the lying sheriff's deputies for using unnecessary tactics that have stalled the case. Todd Spitzer, chairman of the Board of Supervisors as well as a former state Assemblyman and prosecutor, says the failures in the Dekraai matter are Rackauckas' fault.

Go HERE to see the Weekly's OC Snitch Scandal story archive.

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