The California Court of Appeal ruled late on Nov. 22 that District Attorney Tony Rackauckas and his staff prosecutors have repeatedly proven themselves ethically unfit to handle basic criminal justice system duties in a pending death penalty case, People v. Scott Dekraai, and rejected Attorney General Kamala Harris’ defense of the cheating as “nonsense.”
In a stern 53-page opinion, the three-justice panel—Kathleen O’Leary, Richard Fybel and Raymond Ikola—took their judicial gavels and figuratively slammed them against Rackauckas’ thick skull to send a message the 73-year-old DA hoped he’d never hear: Your cheating, alliances with dirty sheriff’s deputies, lack of remorse and efforts to pose as a victim of alleged devious defense lawyers and warped journalists will not be tolerated.
The justices left no room for Rackauckas to spin his way out of this latest historic embarrassment after an alarmed Superior Court Judge Thomas M. Goethals recused him from Dekraai in March 2015. They noted that the DA’s misconduct in the ongoing Orange County Jailhouse informant scandal went “well beyond simply distasteful or improper” but is “real” and, to punctuate their sentiment, “grave.”
“The magnitude of the systemic problems cannot be overlooked,” the ruling states. “The record before us demonstrates that from the outset, the Orange County district attorney’s office (OCDA) failed in its duty as the primary county prosecutor to supervise its prosecution team, specifically the Orange County Sheriff’s Department (OCSD), and ensure its prosecutors and its law enforcement team complied with its constitutional and statutory obligations.”
According to the appellate justices, OCDA’s “cozy relationship” with sheriff’s deputies operating secret unconstitutional schemes against pre-trial defendants, committing perjury and hiding evidence is a major factor in the scandal.
“The OCDA’s primary function is to prosecute crimes in Orange County,” the justices wrote. “In that capacity, it must exercise its vast discretion justly and fairly to ensure every defendant is treated fairly, regardless of the severity of the charged offenses. Here, the evidence demonstrated the OCDA had an interest extraneous to its official duties—it’s loyalty to the OCSD and its desire to protect the OCSD at the expense of Dekraai’s constitutional and statutory rights. This abdication of the OCDA’s fiduciary duty violated Dekraai’s due process rights.”
If the appellate ruling remains intact, the state AG’s office will assume penalty phase responsibilities against Dekraai, who committed the worst mass shooting in county history in Oct. 2011 at a Seal Beach salon with numerous victims: Victoria Buzzo, David Caouette, Randy Lee Fannin, Michele Daschbach, Michelle Marie Fournier, Lucia Bernice Kondas, Laura Webb, Christy Lynn Wilson and Hattie Stretz.
Though the defendant immediately confessed, law enforcement officials took a slam-dunk case and unnecessarily began cheating behind the scenes within hours in hopes of assuring a death penalty punishment.
“Throughout her briefs the Attorney General [through her agency representative, Theodore M. Cropley] claims all the fault lies with the OCSD, and the OCDA is not to blame for the custodial [confidential informant, or CI] program OCSD operated in the OC jails,” the justices observed. “[But] there is no legitimate reason for the OCSD to create and maintain such a sophisticated, synchronized and well-documented CI program other than to obtain statements that will benefit prosecutions.”
The ruling singled out Rackauckas, OCDA chief of staff Susan Kang Schroeder, Dekraai prosecutors Dan Wagner and Scott Simmons as well as jail deputies Seth Tunstall and Ben Garcia plus Seal Beach Police Department detective Gary Krogman for playing significant unethical roles in the scandal.
Schroeder, who essentially serves as the DA’s spokesperson, earned ridicule for manufacturing hostile media stories against Dekraai defense lawyer Scott Sanders by blaming him for delaying the case to argue “meritless” accusations and, thus, callously trampled over the emotions of the victims’ relatives. “We’re frustrated the defense keeps up with delay tactics,” she asserted, as noted by unimpressed justices.
But as we’ve learned in the last 35 months, OCDA and OCSD were actually guilty of prolonging matters by hiding more than 47,000 pages of evidence from Sanders, forcing the attorney to devote time fighting to receive what prosecutors should have surrendered nearly four years ago. Though Rackauckas and Sheriff Sandra Hutchens insist the death penalty case evidence was accidentally withheld, those pages contain proof of the illegal jailhouse “capers” deputies conducted to help OCDA win cases. Incredibly, the sheriff continues to disobey Goethals’ 200-week-old discovery orders in Dekraai and the judge has scheduled a related Dec. 18 hearing.
For unknown reasons, Goethals has largely ignored Wagner's arrogance and ethical transgressions, but the justices didn't refrain from slamming the head of Rackauckas' homicide unit. They mocked his inconsistent statements under oath, supposed vast memory loss, dubious moves, alleged innocent misunderstanding of simple legal tenants and lame but strenuous efforts to downplay the scandal as imaginary. They also came one line short of casting this character for what he is: a plotting, two-faced virus on OC's justice system.
When confronted on the witness stand, "Wagner gave inconsistent answers," the court of appeal stated after chronicling the high-ranking prosecutor's efforts to trick Goethals and Sanders into believing he'd met minimal ethical standards in Dekraai. He has also helped manage strategies to mislead the public throughout the scandal. Without digesting the defense attorney's bombshell 2014 revelations, he rushed to pronounce them "scurrilous allegations" and "untruths," the court memorialized about Sanders' now confirmed findings of entrenched corruption.
(More recently, on June 9, Wagner wrote an OCDA press release posing clueless about OCSD shenanigans hiding "Special Handling Log" jail records. However, 16 days earlier he first read the entire log and couldn't have missed the conspiracy that erupted immediately after he tipped the sheriff in Jan. 2013 that Goethals might force surrender of records in Dekraai. In the wake of that news, the log supposedly ended days later. The judge and Sanders have demanded answers to the disappearance for months while Wagner, who knew what happened, remained mum. A final entry describes deputies plotting to thwart future court discovery orders by collecting log-type information but no longer naming the database.)
For his part, Rackauckas responded to the appellate decision in typical fashion by ignoring findings that underscore his lack of fitness to serve as DA. Instead, he tried to cast the ruling as another abuse of the victims’ families. “Our hearts, of course, first go to the victims and their families in this case, and we feel tremendous pain for their loss,” he said in a prepared media statement. “Many of them know that we truly care about them and that we worked tirelessly and vigorously to seek justice in this case.”
After that shameless diversion tactic, one key question remains: Can Rackauckas go any lower?
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.