Late on June 25, a divided three-justice panel at the California Court of Appeal based in Santa Ana upheld the right of the Orange County district attorney’s office (OCDA) to blanket paper a judge who punished law enforcement for repeatedly cheating.
The controversy stems from Superior Court Judge Thomas M. Goethals’ historic rulings in People v. Scott Dekraai, a pending death penalty case. Upon learning that prosecutors and sheriff’s deputies hid massive amounts of evidence and over the angry objections of District Attorney Tony Rackauckas, Goethals permitted special evidentiary hearings beginning in February 2014. Those hearings, which produced enormous evidence that government officials committed perjury to cover up the scandal, eventually caused the judge, himself a former high-ranking prosecutor, to lose faith that OCDA could be trusted to obey basic ethical rules. He recused the entire office from the case.
Rackauckas and his prosecutors retaliated. In the three years before Goethals called for the special hearings, OCDA disqualified him from presiding over murder cases only one time. During the first 18 months after his ruling, prosecutors papered him in 55 of 58 homicide case assignments.
After receiving five more disqualifications against Goethals in 2015, Richard King, the judge responsible for assigning cases during the period, called foul against Rackauckas. King determined the DA’s move violated the independence of the judiciary by sending a threatening signal to all judges that they should not upset prosecutors. He also said the papering created a case management train wreck because other judges with already overwhelming case loads had become even more burdened.
But writing for a 2-1 majority, Justice Kathleen O’Leary opined in a 22-page ruling that case law—specifically Solberg v. Superior Court—technically supports Rackauckas’ blanket papering. With Justice Richard Aronson, O’Leary ordered King to allow OCDA to disqualify Goethals in the five cases and to assign them to other judges.
Justice David Thompson dissented, arguing Solberg supports King’s move. Thompson described Rackauckas’ strategy “a concealed weapon” against judges who refuse to tolerate prosecution team cheating.
“The district attorney’s systematic abuse of [current papering rules] undermined the principle of judicial independence and violated the separation of powers doctrine,” he wrote. “We are not powerless to stop it.”
All three justices recognized the validity of King’s concerns and urged the California Supreme Court to consider “the impact of an abusive use” of papering procedures.
In a victory press statement, Rackauckas refused to admit to the blanket papering, still laughably alleging his staff disqualified Goethals 55 times as coincidental and done “to do what is in the best interest of the People, public safety and crime victims.”
Yet, this could be a case of winning the battle, but losing the war. The DA may soon become even more of a judicial villain if the California Supreme Court rejects his tactics as unconstitutional or the state legislature reforms the law. If so, let’s hope the history books contemptuously call it the Rackauckas Rule.
R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; and hailed by two New York Times Magazine writers for his “herculean job” exposing Southern California law enforcement corruption.