Orange County court records long ago established that Tony Rackauckas' district attorney's office and Sandra Hutchens' sheriff's department took a slam-dunk death-penalty case in People v. Scott Dekraai and unnecessarily cheated behind-the-scenes in hopes of robbing the defendant of a fair penalty phase and guaranteeing a state execution. After all, there's no question that in October 2011 Dekraai, unhinged over a child-custody dispute, killed eight innocent people and severely wounded another at a Seal Beach salon where his former wife worked. There's also no question local juries have supported capital punishment for far less carnage. As Weekly readers know, the government's rush to put Dekraai on death row resulted in unintended consequences. Investigations into law enforcement's conduct in the case have produced four-and-a-half years' worth of ugly revelations demonstrating the eagerness of officials to rig the criminal-justice system when they believed no one would ever discover their misdeeds.
At week's end, Superior Court Judge Thomas M. Goethals, a former homicide prosecutor, plans to announce a historic decision in Dekraai. Will Goethals side with Deputy Attorney General Michael T. Murphy, who insists the government stopped cheating and that prior abuses won't trample the defendant's constitutional fair-trial rights at a future penalty phase? Or will the judge support Assistant Public Defender Scott Sanders' contention that the prosecution team has proven its unsavory inclinations and continues to act unethically by hiding documents, a fact he says should result in the removal of the death-penalty option in exchange for eight consecutive life-in-prison sentences without the possibility of parole?
To sway Goethals, Murphy argued on Aug. 10 that Hutchens' Orange County Sheriff's Department (OCSD) has finally complied with his 2013 discovery orders to surrender all evidence and that, even if the agency hasn't, it's absurd to think the sheriff would be hiding records that could benefit Dekraai at the penalty stage. "There is not a bit of evidence that suggests this sheriff's department or any sheriff's department maintains records of good behavior of capital inmates for use at a penalty phase trial," the deputy AG said.
Murphy's spin is disingenuous, at best, and Sanders is right about his mantra from the outset of what has become nationally known as the Orange County jailhouse-informant scandal. Jail deputies consistently turn over evidence that helps Rackauckas' prosecutors win trials and, abandoning their sworn ethical oaths, hide or destroy records helpful to defendants. For example, despite Goethals literally shaking his head in amazement, OCSD is still withholding six years of jail records at the Theo Lacy Facility, where Dekraai has been housed with government informants seeking perks for collecting negative stories on the high-profile inmate. Even if the deputy AG is clueless about the implications of what such buried evidence could contain, its potency is exposed in yet another slam-dunk-but-screwed-up death-penalty case: People v. Richard Raymond Ramirez.
In 2008, U.S. District Court Judge Consuelo Marshall vacated Ramirez's capital-punishment verdict for the 1983 rape and murder of 22-year-old Kim Gonzalez in Garden Grove. Marshall ruled that the jury foreman hid a personal bias by failing to disclose he was seeking FBI employment during the trial. The DA's office won a second guilty verdict in May 2013, but the jury deadlocked 7-5 on the death-penalty question.
Prosecutors blamed their loss on a prison guard who reported Ramirez had been "a model prisoner" for years. Instead of accepting the validity of the testimony, government officials decided to sabotage it so that a third jury would believe Ramirez just "hadn't been caught" committing crimes in prison rather than he'd "chosen to behave well." As court records show, they implemented a devious, two-pronged plan.
"The prosecution chose to have OCSD test Ramirez's propensity and character for wrongdoing, believing—falsely—that either the information would bolster their case or simply be irrelevant [and, thus, hidden from the defense]," Senior Deputy Public Defender Seth Bank wrote in a 2013 brief.
Pretending to be carrying out normal inspections and not desperately trying to find evidence helpful to prosecutors, jail deputies began conducting a series of raids on Ramirez's cell just days after the jury deadlocked. They found nada, so Alexander Frosio, a jailhouse informant for the government, entered the scene. Deputies placed Frosio (a.k.a. "Scarface") in Ramirez's jail module, supplied the snitch with extra food, and told him to "keep an eye" on their target because they wanted to "know everything he's doing," according to court records.
Gordon Bridges, another Orange County Jail (OCJ) inmate in the same module, confirmed the story. Bridges told defense investigators that Frosio, a violent gangster with five arrests—the first at age 11—bragged he was working for deputies and that he'd tried to "set up" Ramirez on their behalf by getting him to possess contraband in his cell.
"Not only has Ramirez maintained a clean record for 30 years, but when the prosecution subjected him to a covert investigation, testing his resolve for good behavior, his good character proved resolute, as he rebuffed efforts to corrupt him," Bank wrote. "The failed efforts of an experienced informant . . . to persuade Ramirez to engage in wrongdoing, makes for a compelling case about his commitment to good behavior."
Compounding the mess, Frosio wrote extensive notes of his activities for OCSD. But deputies, who concocted misleading reports to confuse any future inquisitors about their maneuvers, claimed ignorance of their existence when requested for defense inspection. Adamantly denying any government hanky-panky, the DA's office finally secured the death penalty for Ramirez in February 2015.
Given Ramirez, it's not just that Murphy is wrongly alleging Hutchens' department could never collect information allowing a capital-case defendant to argue mitigating factors, but he's also choosing to play dumb about that case's undeniable ties to Dekraai. Deputies placed Sanders' client with Frosio in the Theo Lacy Facility, but, as with Ramirez, they claim they don't have a single record of his work.
Might this be another example of OCSD hiding evidence that could hurt the government's position? The obvious answer, considering all the revelations from Goethals' special evidentiary hearings, is yes, and there's a smoking-gun piece of evidence Hutchens, her deputies and Murphy refuse to explain.
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Lieutenant Mike McHenry, whom the sheriff assigned to supposedly figure out which files hadn't been given to the judge after years of stonewalling his discovery orders, recently wrote internal notes that referenced a computerized Special Handling Unit file folder for Frosio. If the sheriff is being honest that she possesses no Frosio files, why would deputies, who manage jail informants, have such a folder, and why hasn't it been surrendered?
Sanders has an answer: The prosecution team is still angling to unfairly tilt Dekraai's penalty phase in their favor, a stance the deputy AG calls laughable.
"[Sanders'] argument is that 'Well, we are certain they are hiding something,'" said Murphy, who's been exceptionally secretive about OCSD documents he's obtained. "He seems to believe that there are records either from confidential informants or about confidential informants by deputies that document good behavior by his client that would be relevant to a mitigating case. . . . I think that's just preposterous."
[This article appears in the Weekly's newsstand copy as "Cheaters to the End: On the Eve of Death Penalty Decision, OC Sheriff Still Hides Evidence with AG Cover."]