Though operatives for District Attorney Tony Rackauckas insist behind-the-scenes that Thomas M. Goethals is unscrupulous, more apt descriptions of the Orange County Superior Court judge come to mind: studious and wry, but also cautious yet conscientious. Nuanced mental chess matches between opposing lawyers often thrill Goethals, an aficionado of legal scholarship. Such competition occasionally turns ugly, as in People v. Scott Dekraai. Unnecessary prosecutorial-team cheating transformed a slam-dunk death-penalty conviction stemming from the 2011 Seal Beach massacre into a debacle known nationally as the OC jailhouse-informant scandal.
The mess involves government officials running unconstitutional jail scams against pretrial defendants, hiding evidence and rewarding snitches for dishonest testimony. According to court records, multiple officers, including Seth Tunstall and Ben Garcia, committed perjury to cover up misdeeds while prosecutors remained silent. Goethals began focusing on the corruption 31 months ago and, despite embarrassing revelations about the criminal-justice system, is perplexed that our top cops remain unapologetic. Incredibly, five years into Dekraai, Rackauckas and Sheriff Sandra Hutchens continue to offer lame excuses as to why they've played a series of games with evidence.
But Goethals' patience finally may be waning. While waiting for the California Court of Appeal to rule on the validity of his March 2015 decision to recuse the DA's office from Dekraai for ethical concerns, the judge discovered the existence of additional hidden jail records called the Special Handling Log. He has scheduled an Oct. 28 hearing to announce the release of a portion of the latest batch (1,157 pages) of tardy disclosures to Scott Sanders, the public defender representing Dekraai.
Claiming to be shocked by the development, Assistant DA Dan Wagner, head of the homicide unit, admits these documents impeach the sworn testimony of Hutchens' deputies in the capital-punishment case. Though it has been obvious for years that prosecutors and deputies have worked in concert to deny the scandal, Wagner at least symbolically distanced his agency from Hutchens' team.
Despite timid efforts to reassure the public, there's a lingering mystery: Is Hutchens—who insists the hiding so far of more than 11,000 pages and dozens of hours of audio recordings has been accidental—keeping even more key records from Goethals while the DA presses for Dekraai's state execution verdict?
There's an alarming background to the issue. The Orange County Sheriff's Department and prosecutors initially hid the existence of inmate-classification records called TREDs from the defense because the contents hurt the government's case. Next, we learned earlier this year that Hutchens concealed a second major records system known as the aforementioned Special Handling Log. After first pretending there was no such log, the sheriff in April surrendered entries from 2008 to Jan. 31, 2013, implying the system was inexplicably abandoned on that last day.
This is how Hutchens wrapped herself in a bind. Now that a portion of the log is in the judge's possession and Wagner agrees with Goethals that the evidence should have been turned over to Sanders years ago, the sheriff has shifted strategies for her courthouse surrogate, Deputy County Counsel Elizabeth Pejeau. No longer denying the existence of the logs, they argue its release will cause daily chaos in the jails, compromise pending criminal investigations and increase the likelihood informants working for deputies will be beaten or killed.
But that stance raises a contradiction and provides the latest mystery for Goethals. If those records are so vital to jail security, why did they supposedly end on Jan. 31, 2013—days after he issued his discovery orders to the department in Dekraai?
At a Sept. 22 hearing, the judge acknowledged he is "sensitive" to Pejeau's arguments while remaining skeptical Hutchens is telling the truth. "If these documents are so critical with respect to preventing those horrific Armageddon-like possibilities . . . how has the sheriff gotten along since Feb. 1, 2013, when, for some unexplained reason, the log stopped?" Goethals asked. "The jail hasn't fallen down. I haven't heard anything about investigations being compromised, and I am not privy to everything that happens in this county. I try to keep my ears open. I haven't heard about any informants being killed because the Special Handling Log suddenly ended on Jan. 31, 2013. . . . Apparently, it wasn't that important."
Pejeau responded, defensively, "Well, I don't know that's true."
Since the log's emergence in April under a protective order, Sanders has maintained the system was secretly re-constituted using a different name, buying the sheriff additional time to play dumb.
The judge pressed Pejeau.
"I don't know if anything replaced the log," she said before issuing a poorly worded statement. "I think the sheriff continues to make sure there aren't records kept somewhere."
Goethals asked, "As an officer of the court, are you representing that the log stopped on Jan. 31, 2013, and there is not some equivalent document that has continued to be generated ever since—just with a different name?"
"I absolutely cannot make that representation to this court," she replied. "The sheriff continues to look for information in all of the places where they keep information."
"Obviously, that hasn't worked well," the judge said. "We are three and a half years down the road [after my discovery order], right?"
"Well," she said.
"How long are we going to search?"
"I made an order on Jan. 13, 2013, for significant discovery and held six months of hearings, and I made a ruling 18 months ago," the judge said. "Two years ago, I made a subsequent ruling, and then new records came out. Eighteen more months have passed. Here we are again. . . . When should I expect full compliance with lawful orders that I have issued? What do you think? What would be fair? Three and a half years isn't enough time?"
"I don't think anyone is denying there have been issues with turning over information," she offered. "The sheriff is taking this matter very seriously."
"Isn't that kind of sad?" the judge replied. "We are now in late September 2016 . . . and you just said you can't guarantee [the defense has] received everything there is or supposed to have. . . . So, it seems to me if we are acting in good faith and looking as hard as we can, somebody might have asked the question 'Well, what replaced, if anything, that log?'"
An exhausted-sounding Pejeau replied, "I suspect there are going to be additional records to produce."
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"So do I," Goethals answered. "So do I."
It's not just Hutchens—who refused to answer the Weekly's question about what happened to the log—and Pejeau who should be in the hot seat. As leader of the prosecution team, Wagner is ultimately responsible for all the disclosure failures. At least six months ago, he must have realized the sheriff still possesses hidden records. It's past time for this prosecutor to abandon his silence and explain what effort, if any, he has undertaken to meet his ethical and legal obligations.
Californians face dueling November ballot measures on the death penalty: speed up executions by severely limiting the amount of time appellate teams can review cases for corruption (the Rackauckas-and-Hutchens-backed Proposition 66), or make life in prison without the possibility of parole the maximum punishment (the Sanders-backed Proposition 62). With that choice in mind, attention can turn to Goethals' courtroom for the next Dekraai hearing. That's when we'll know if the sheriff will honestly answer the judge's questions or continue to trample the constitution's due-process rights.