Orange County D.A. is removed from Scott Dekraai murder trial

Though an O.C. judge removed the D.A.'s office from Scott Dekraai's trial, he may still face the death penalty

In a stinging rebuke, a criminal court judge removed the Orange County district attorney's office from one of its highest-profile murder cases, saying prosecutors had violated mass shooter Scott Dekraai's rights by repeatedly failing to turn over important evidence.

"Certain aspects of the district attorney's performance in this case might be described as a comedy of errors but for the fact that it has been so sadly deficient," Superior Court Judge Thomas Goethals wrote in his ruling. "There is nothing funny about that."

Goethals, though, declined to remove the death penalty as a potential punishment for Dekraai, a former tugboat captain who gunned down his ex-wife and seven others at a Seal Beach salon in 2011.

The judge ruled Thursday that prosecutors had shown a "chronic failure" to comply with orders to turn over evidence to the defense, and had so far deprived Dekraai — who has pleaded guilty to eight counts of first-degree murder — of his right to a fair penalty-phase trial.

The legal wrangling involved how Dekraai came to occupy a jail cell next to a prolific jailhouse informant. Prosecutors and jailers said it was a coincidence, but Dekraai's attorney insisted it was part of a widespread operation to elicit incriminating remarks from defendants who were represented by lawyers, a violation of their rights.

Dist. Atty. Tony Rackauckas' conflict of interest in the Dekraai case "is not imaginary," the judge wrote. "It apparently stems from his loyalty to his law enforcement partners at the expense of his other constitutional and statutory obligations."

The ruling marked a victory for Dekraai's defense attorneys, who said the district attorney's office had covered up wide-ranging misconduct in its zeal to put the killer on death row.

The judge assigned the case to the state attorney general's office, which now will handle the penalty phase in which jurors will decide whether Dekraai should be put to death.

In hearings last year, the judge heard testimony from Orange County jailers Seth Tunstall and Ben Garcia, who belonged to the "special handling" unit that dealt with informants. Despite extensive questioning, however, neither made mention of secret jailhouse computer logs — called TRED records — with which both had extensive experience.

Despite their relevance to the hearings, the judge wrote, Tunstall later testified that it "never crossed his mind" to look at the records or to reveal their existence to the court during last year's testimony.

The judge concluded that "deputies Tunstall and Garcia have either intentionally lied or willfully withheld material evidence from this court" during their testimony. The judge said that he did not believe either Tunstall or prosecutor Erik Petersen "when they unsuccessfully tried to shift responsibility for a serious discovery breach in another case to the shoulders of a former federal prosecutor."

Both Petersen and Tunstall had testified that former federal prosecutor Terri Flynn-Peister had blocked the release of informant-related evidence, claims that Flynn-Peister — now a judge — denied on the stand.

The judge found no evidence that the district attorney's office knew of the existence of the TRED records until after the first hearings, or that it had covered them up. But, the judge said, "someone has to be in charge of criminal investigations and prosecutions in Orange County."

Goethals said it was the district attorney's job to protect the rule of law rather than to ignore wrongdoing by law officers "who may try to cut legal corners." Officers had, in this case, "habitually ignored the law."

In a ruling last August, the judge said that the government's missteps in the case were negligent but not malicious. On Thursday he said, "It is now apparent that the discovery situation in this case is far worse than the court previously realized."

In his argument before the judge Thursday, Dekraai's lawyer, Assistant Public Defender Scott Sanders, said prosecutors had repeatedly failed to challenge O.C. jailers on false testimony.

"Are you the opponents of perjury? Does the obstruction of justice offend you? They don't declare it," Sanders said. "No one was trying on the other side of this table to get to the truth."

Sanders said he had wasted two years uncovering government misconduct, time that he could have spent preparing Dekraai's defense against the death penalty. "We can't get that time back," he said.

Deputy Dist. Atty. Howard Gundy said Sanders' argument lacked cogent legal analysis. As a law school paper "it would get an F...."

"He spent 30 minutes pointing the finger at the district attorney's office," Gundy said, adding that since incriminating remarks Dekraai made to the informant had been ruled inadmissible, "There's no prejudice against Mr. Dekraai. None. Zero."

On Oct. 12, 2011, Dekraai walked into the Salon Meritage and opened fire, killing his ex-wife, Michelle Fournier, 48, along with salon owner Randy Fannin, 62; Lucia Kondas, 65; Michele Fast, 47; Victoria Buzzo, 54; Laura Elody, 46; Christy Wilson, 47; and David Caouette, 64, who was shot as he sat in his car outside.

After the hearing Thursday, Christy Wilson's husband, Paul Wilson, said he supported the work of courtroom prosecutors but felt Rackauckas should have paid more personal attention to victims' families. "I just don't feel I had the personal support of the D.A.," Wilson said. "We're going on 31/2 years, and I've seen him four times."

Laura Elody's sister, Bethany Webb, said the ruling represented "the worst possible scenario," since it promised more delays as the district attorney's office potentially appealed its removal, and even further delays as the penalty phase ran its course, with endless appeals.

"The whole system is broken," Webb said.

She portrayed the legal maneuverings as absurd and painful, pointing to the rarity of California death row inmates being executed. "He is going to die in prison," she said. "The system is irretrievably broken.... No one's going to be executed in California."

Prosecutor Dan Wagner said the district attorney's office disagreed with the judge's ruling and would decide whether to appeal. He acknowledged it was "very rare" for a judge to remove a prosecutor's office from a case.

Asked whether his office would prosecute the jailers that the judge had deemed less than truthful, Wagner declined to comment.

"I don't think it's the right time to be commenting on those issues," he said.

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