A California Superior Court judge voiced incredulity today that Orange County Sheriff Sandra Hutchens continues to disobey a January 2013 discovery order in a pending death penalty case that exposed widespread law enforcement corruption and prompted calls for a U.S. Department of Justice probe.
“When should I expect full compliance with my lawful orders?” Judge Thomas M. Goethals asked Deputy County Counsel Elizabeth Pejeau, who represents Hutchens whose department has continually hidden embarrassing, key evidence in People v. Scott Dekraai and sent deputies to court where they've committed perjury to cover up illegal acts. “Three and a half years isn’t enough time?”
Pejeau conceded the sheriff and her staff repeatedly had been tardy turning over records—a laughable understatement—but argued, despite overwhelming evidence to the contrary, “They didn’t try to bury it.”
Because of Hutchens’ brazen dereliction of duty and Pejeau’s disingenuous spin, a bit of history is necessary.
Deputy District Attorney Dan Wagner and the sheriff pretended they’d fully complied with Goethals’ discovery orders in 2013. A year later, deputies, who violated constitutional safeguards by using jailhouse informants to pressure pre-trial inmates into making incriminating statements, claimed during special evidentiary hearings that they didn’t employ informants and knew of no records that would explain how snitches ended up in cells next to high-profile government targets like Dekraai.
After those hearings, Deputy Public Defender Scott Sanders, Dekraai's lawyer, discovered in late 2014 that deputies had hidden a records system called TRED that contradicted the officers’ sworn testimony. Goethals reopened the hearing, forced the deputies to testify again, listened to more falsehoods and declared them liars. District Attorney Tony Rackauckas, whose cases were the beneficiaries of the deputies’ schemes, and Hutchens have refused to apologize or impose discipline for the misconduct. In fact, the county’s two top law enforcement officials angrily insist all errors were innocent mistakes.
However, as punishment for the cheating, Goethals, a well-respected, former homicide prosecutor, recused Rackauckas and his entire staff from Dekraai in March 2015. He cited concerns they couldn’t be trusted to insure the prosecution team would behave ethically. The case landed in the lap of California Attorney General Kamala Harris, who is presently appealing Goethals’ ruling.
Meanwhile, earlier this year, Sanders learned Hutchens also had hidden a second records system called “The SH Log” that was used daily by special handling deputies to document informant contacts and movements in government “capers” to trample defendants’ constitutional rights. In June, Wagner, Dekraai’s prosecutor, conceded the log's 1,157 pages contain impeachment evidence that Sanders should have received years ago.
It turns out the log documents deputy jail activities from 2008 to late January 2013. Oddly, Hutchens would have Goethals believe that the log suddenly ended just days after he issued his discovery order in Dekraai and that there is no replacement system. The judge today told Pejeau that she and the sheriff can’t reasonably argue their present claim: That the log was vital to jail security, protection of informants and confidential investigations, but just ended. He believes that stance is continual evasiveness and asked county counsel if she is denying the existence of a new, secret version of the log.
“I absolutely cannot make that representation,” said Pejeau, who claimed “the sheriff is still looking” to see what other evidence she possesses that should have been surrendered.
“How long are we going to search for an order that was issued in 2013,” Goethals asked.
Pejeau replied that she could make no “guarantees” about when Hutchens, whose antics are featured in this week's Moxley Confidential, would finally comply with his order.
“Isn’t that kind of sad, Ms. Pejeau?” the judge said. “I gave an order in January 2013. It's now 2016 . . .
I don’t have any confidence [I'll win compliance].”
Pejeau fired back, “I wouldn’t expect you to [believe us]," adding lamely, "But that doesn’t mean the sheriff isn’t working to fix that issue.”
The judge demanded again to know if the log had been replaced, saying, “It just doesn’t make any logical sense [that it would have disappeared]. It just seems unlikely . . . I should have had full answers years ago."
Dodging the obvious reality that a sheriff running a para-military organization doesn't need 3.5 years to learn what records are in her possession, Pejeau conceded, “I expect there will be additional things [surrendered to Sanders].”
“So do I,” Goethals replied.
Sanders said he is stunned Hutchens and other police officials act as if they can pick and chose which court orders they will obey.
"This dishonesty is so much worse than we ever imagined," he told Goethals. "And it will go on into perpetuity . . . [Hutchens, prosecutors and deputies] were going to keep quiet forever . . . They all took an oath of silence. This is a tremendous cultural problem [in OC law enforcement agencies]."
The judge scheduled an Oct. 28 hearing to give the public defender portions of the log with redactions.
Rackauckas and Hutchens are supporting a November ballot initiative, Proposition 66, that would speed up executions in California and significantly hamper the ability of defense attorneys to discover law enforcement corruption in those capital cases. In opposition, Proposition 62 would end the death penalty in the state if approved by voters.
R. Scott Moxley’s award-winning investigative journalism has touched nerves for two decades. An angry congressman threatened to break Moxley’s knee caps. A dirty sheriff promised his critical reporting was irrelevant and then landed in prison. The U.S. House of Representatives debated his work. Federal prosecutors credited his stories for the arrest of a doctor who sold fake medicine to dying patients. 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.