District Attorney Tony Rackauckas' 10-month-old gamble that the Orange County snitch scandal would fizzle out has proven less than prophetic. In March, Superior Court Judge Thomas M. Goethals booted Rackauckas and his office (OCDA) from People v. Scott Dekraai, a death-penalty case, after determining prosecutors can't be trusted to act ethically. Goethals' historic move meant California Attorney General Kamala Harris would, given Dekraai's massacre confession, take over penalty-phase duties.
Until that point, Rackauckas' staff spent four years blaming Assistant Public Defender Scott Sanders, Dekraai's attorney, for torturing the victims' survivors by stalling the case. We now know OCDA's tactics of hiding evidence and filing deceptive court records caused the delays. Even the DA's Kool-Aid-guzzlers had to concede the fake outrage after he urged Harris to fight her assignment. Rather than assume control over Dekraai—a move that may have landed the defendant on death row months ago—the AG is taking what could be a multiyear appellate route.
You might assume someone two-faced with crime victims had emptied his dirty-tricks bag. But Rackauckas—who is a pleasant, engaging fellow in person—seems to have an endless repertoire of shenanigans. Or, perhaps like a recalcitrant juvenile, he's ingrained with a willingness to say anything to escape accountability.
The latest evidence of this flaw emerged in the wake of a sensational Dec. 3 ruling by Richard M. King, an Orange County Superior Court judge. King is not only a well-respected member of the bench, but, like Goethals, he is also a former accomplished OCDA homicide prosecutor and Rackauckas colleague. My files contain a circa early-1980s-era photo of the three men smiling together.
Local courthouses are teeming with judges who proclaim neutrality but have no intention of siding against Rackauckas on disputes entailing shady government conduct. Indeed, some of the more obnoxious members of the bench tout their pro-prosecution bias, daring defense lawyers to complain. In recent weeks, I witnessed such an episode, sought comment from the abused attorney and became the recipient of a plea for silence because of feared retaliation.
Yet, like Goethals before him, King can no longer stomach Rackauckas' antics. In November, he startled courthouse observers by overturning OCDA's eyebrow-raising win in People v. Eric Ortiz. The prosecution team had trampled Ortiz's constitutional rights by securing an illegal jailhouse confession, then trying to cover up their mischief.
Two weeks ago, King bravely dove deeper into the cesspool. His 49-page remarks were the legal equivalent of taking a mahogany 2-by-4 and slamming it against the DA's thick skull. The message was unambiguous: Clean up your act, Tony!
King's ruling noted that OCDA disqualified—or papered—Goethals just once in 35 murder cases between Dec. 7, 2010, and Feb. 24, 2014. But in early 2014, the agency launched what King calls a "blanket papering" campaign by disqualifying Goethals 46 times out of 49 trial assignments from Feb. 25, 2014, to September 2015.
"This disparity [between years] is not coincidental," King wrote.
The attack on Goethals occurred precisely after he granted Sanders a special evidentiary hearing in Dekraai that, after months of testimony, concluded deputies inside the Orange County Sheriff's Department (OCSD) repeatedly committed perjury and prosecutors "habitually ignored" the law.
While recusing OCDA from the case in March, Goethals declared, "The district attorney cannot or will not, in this case, comply with discovery orders of this court and the related constitutional and statutory mandates that guarantee this defendant's right to due process and a fair trial."
Rackauckas and his lieutenants reacted bitterly, employing surrogates to imply Goethals was a loon with an unspecified ulterior agenda. They also pondered a campaign to remove him from the bench. At a press conference, the defiant, 72-year-old DA claimed defense lawyers such as Sanders were the real villains and suggested reforms to strengthen current monumental powers of prosecutors. King watched the events, hoping clearer minds inside OCDA would eventually prevail. That hope still hasn't materialized.
In September, King sent four more murder trials to Goethals' C45, the county's highest courtroom on the 11th floor, Santa Ana tower perch. Rackauckas' office objected each time, and C45 remained comparatively idle while cases piled up in other already-overloaded courtrooms. There was no mistaking the prosecutorial revenge. The office even filed an objection to Goethals in a case two months and one day before he'd even gotten the assignment.
The result is two needless messes, according to King. First, he believes the routine disqualification of Goethals is an attempt "to intimidate, punish and/or silence" him for refusing to ignore OCDA, OCSD and Santa Ana police cheating. Also, as presiding judge of the county's 17-member felony panel, he is tasked with managing the flow of trials akin to "an air-traffic controller at a busy airport." The papering game—or, as King labeled it, "judge shopping"—has caused "a strain" on the system, with cases languishing "unnecessarily." Nowadays, he's refusing to automatically grant Goethals' disqualification and told Rackauckas to complain to a California Court of Appeal if he doesn't like it.
Kate Corrigan, an ex-OCDA prosecutor who is now a private Newport Beach attorney, applauds King's commitment to the "integrity of the judicial system."
Once again, however, prosecutors didn't take the high road. In a Dec. 9 press release, Rackauckas shoved Senior Assistant District Attorney Mike Lubinski into the hot seat to declare the office's decision to appeal. An analytical lawyer deft at maneuvering bureaucratic mazes, Lubinski tried to discredit King's "blanket papering" stance with semantics. Don't laugh: It's not "blanket" if only 96 percent of the cases got moved from Goethals, so the reasoning goes.
Lubinski's better argument is found within California law, which allows prosecutors to disqualify a judge from a case by simply signing a timely oath that the deputy DA has a "good faith belief" that prejudice exists. "The law does not require a party to explain his or her reasons for peremptorily challenging a judge," he correctly observed.
But King thinks Rackauckas' ham-fisted tactic violates the spirit of the "good faith" portion of the disqualifying requirement. Will a state appellate panel or the California Supreme Court agree? Unless the legislature takes corrective action, some seasoned Southern California lawyers, who are sympathetic, have doubts.
There's no mystery, however, about King's resolve against OCDA pressure to yank Goethals from the felony panel or all murder trials. "The very thought of this option is offensive," he wrote. "To allow a party to manipulate the court into removing a judge from hearing certain criminal cases—when that judge, in the performance of his judicial duties, has conducted a hearing which exposed that same party's misconduct—not only goes against the very cornerstone of our society, the rule of law, but would be a concession against judicial independence."
King worries that bowing to prosecutorial bullying against Goethals would also send a "loud message to other local judges that they could expect similar treatment" if they explore future evidence of law-enforcement corruption.
"The situation before this court," he stated, "exemplifies the ability of the executive branch to encroach upon or overpower the judiciary—particularly in criminal cases."
This, King says, is a "crisis."
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