One of the biggest arguments against the death penalty is that you don’t get a do-over in case of serious misconduct. That came into sharp focus this week, when Slate’s Dahlia Lithwick discovered that in March, a California judge removed the entire Orange County district attorney’s office from a major death penalty case. This extreme move came after it emerged that prosecutors had run roughshod over an admitted mass murderer’s rights in an effort to send him to death. The revelations have also called a number of other cases into question.
In 2011, Scott Dekraai walked into the Salon Meritage beauty salon in Seal Beach and opened fire, killing eight people–including his ex-wife. It was the deadliest mass murder in Orange County history. Dekraai was arrested half a mile from the salon wearing full body armor. A dozen surviving witnesses identified him as the shooter. In March 2014, he pleaded guilty to eight counts of first degree murder with special circumstances and one count of attempted murder. Despite his guilty plea, district attorney Tony Rackaukas announced that he would seek the death penalty.
Just before Dekraai formally admitted to his crimes, public defender Scott Sanders discovered that Fernando Perez, a jailhouse informant who had elicited damning statements from Dekraai, had also managed to elicit statements from one of Sanders’ other clients. This raised the prospect that Perez and other informants had been deliberately placed next to high-value prisoners and offered benefits in return for taping converstations. According to UC Irvine law school dean Erwin Chemerinsky, using informants in this way is blatantly unconstitutional, as it is no different from police questioning a suspect without his attorney present once a defendant has invoked his right to counsel.
In February 2014, Sanders filed a motion asking that the death penalty be taken off the table. In August, judge Thomas Goethals threw out Perez’ testimony. However, he allowed the district attorney’s office to continue pursuing the death penalty, saying that this was only evidence that mistakes were made. That changed when Sanders discovered that for the last 25 years, the Orange County Sheriff’s Department had maintained a computerized database about inmate cell movements known as TRED. This database contained a welter of exculpatory information that should have been shared with defense counsel–and wasn’t. Sanders contended that this was evidence that deputies orchestrated Dekraai’s movements in the jail from the very start.
On March 12, Goethals issued a blistering order removing the entire 250-person staff of the Orange County District Attorney’s Office from the case for what he described as its “sadly deficient” failure to respect Dekraai’s due process rights. Goethals found that two deputies in the sheriff’s department’s “special handling” unit, which handles informants, had lied about TRED’s very existence when it was clear they had worked extensively with TRED. He also found that assistant district attorney Erik Peterson lied when he claimed that former federal prosecutor Terri-Lynn Peister blocked the release of informant-related evidence.
Goethals found that there was no evidence that the district attorney’s office helped cover up the existence of TRED. Nonetheless, he pointed out that as “the chief law enforcement officer” of Orange County, Rackaukas was responsible for “respecting and protecting the rule of law.” While he held the deputies “habitually ignored the law,” it was the district attorney’s responsibility to prevent such conduct–and Rackaukas’ office failed to do so. He thus found that there was a “conflict of interest” so serious that there was no way Dekraai could get a fair trial as long as this district attorney’s office was part of the case.
Sanders had sought to have the death penalty taken off the table altogether, saying that he had wasted over two years ferreting out prosecutorial and law enforcement misconduct that should have been spent preparing to argue for Dekraai’s life. Goethals refused, instead turning over the case to state attorney general Kamala Harris. While Harris has promised a full investigation of the misconduct, she has also appealed Goethals’ ruling–a move that could delay the penalty phase further.
If prosecutors were willing to turn a blind eye to this kind of egregious misconduct in order to send a manifestly guilty person to death, you can imagine they’d be willing to do so in cases where there is actually some doubt as to a defendant’s guilt. Indeed, at least two cases have already been thrown out, and more are expected to follow. You have to wonder–at what point are we going to see deputies fired and district attorneys subjected to disbarment hearings? At what point will those responsible be brought up on criminal charges themselves? And at what point will Rackaukas and Orange County Sheriff Sandra Hutchens have to answer to voters for this ghastly misconduct?
