Orange County sheriff's deputies and prosecutors may have run afoul of laws regarding turning over evidence to the worst mass killer in the county's history, but the misconduct doesn't mean he can't get a fair hearing in the death penalty phase of his trial, a state prosecutor Thursday told a judge considering if he should just let the defendant get an automatic life sentence without parole.
Orange County Superior Court Judge Thomas Goethals, who removed the Orange County District Attorney's Office from the case against Scott Dekraai due to what Goethals called outrageous governmental misconduct, said he would rule Aug. 18 on whether Dekraai gets a penalty phase trial or an automatic life without the possibility of parole sentence.
Dekraai already has pleaded guilty to eight counts of murder and a count of attempted murder, so he's either facing execution or the rest of his life in prison.
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Dekraai's attorney, Assistant Public Defender Scott Sanders, argued Thursday that his client cannot trust the county to turn over all favorable evidence, so he can never be sure he'll ever get a fair hearing.
Deputy Attorney General Michael Murphy, however, said that none of the corruption involving the use of confidential informants in the jail precludes Dekraai from getting a fair hearing in the penalty phase of his trial.
Prosecutors, because of past findings of misconduct against the District Attorney's Office, are limited in the penalty phase to discussing the crimes, the character of the defendant and the impact of the massacre of the victims, Murphy said.
Goethals has also limited prosecutors to only discussing Dekraai's comments to investigators before he was jailed, Murphy noted.
Deputy Public Defender Sara Ross asked Goethals to impose "creative sanctions" on the prosecution team when Goethals raised the issue of whether he has the constitutional authority to dismiss the death penalty as a punishment for Dekraai.
The allegations of misconduct in the Dekraai case date back to January 2014 when his attorneys filed a 500-plus-page motion alleging widespread misconduct in the use of jailhouse informants to obtain information to help investigators. Sanders argued that the government violated his client's constitutional rights by having informant Fernando Perez put in a cell next to Dekraai to get information from the defendant when he was already represented by an attorney, which is illegal.
Goethals found that the placement of Perez was a coincidence based on a nurse's recommendation. Sanders continued to argue Thursday that it was a conspiracy to violate his client's rights.
Perez's notes to his handlers led prosecutors to get Dekraai's cell wired, and he made what many sources have characterized as insensitive and callous comments about the massacre at the Seal Beach beauty salon. Prosecutors wanted to use the comments in the death penalty phase of the trial, but Goethals has forbidden it now.
Thursday's arguments capped off a third round of evidentiary hearings. Sanders argued that he was vilified by prosecutors and sheriff's deputies as a wild-eyed conspiracy theorist when he first lodged the complaints. Now, 3 1/2 years later, he said he is still getting stonewalled and more evidence keeps popping up despite years of orders from Goethals to turn over evidence regarding the jail informant program.
Sanders also noted that sheriff's officials initially denied having any sort of jailhouse informant program. Then, when the evidence contradicted that, he argued, they began to parse words, saying some inmates were "sources of information," others were "percipient witnesses," and others were "confidential informants."
"They have earned our distrust," Sanders said.
Sanders also dismissed suggestions by some sheriff's officials in the most recent round of evidentiary hearings that the misconduct stemmed from a few "rogue" deputies.
"The notion that they were acting on their own ... should be viewed as embarrassing at this point," Sanders said.
Murphy cited multiple legal cases that show such a high threshold for dismissing charges post-conviction when there has been misconduct. One case involved a Los Angeles prosecutor who misled a judge and others and charges still weren't dismissed.
Murphy also cited the appellate court ruling on the second-degree murder convictions in the fatal beating of a suspect accused of possession of child pornography in Orange County Jail. In that case, sheriff's deputies told various shot-callers about the suspect's charges and one deputy was watching TV and sending text messages to a girlfriend during the beating, which took place in a blind spot of the jail.
Despite the alleged misconduct on behalf of the jailers, those defendants in the jail beating death were upheld by the appellate justices.
Goethals quizzed Murphy about what he could do when there has been "chronic" failure to comply with orders to produce evidence favorable to defendants. Murphy argued that maybe there is nothing the judge can do, but there are other outlets to remedy the situation including criminal charges to some parties, the sheriff getting voted out of office or just bad publicity from news reports about the allegations.
The standard, Murphy argued, is can Dekraai still get a fair hearing in the penalty phase? He said the defendant can get a fair hearing because prosecutors will be limited to just discussing the crimes, Dekraai's statements to investigators before he was jailed and his character and the impact his crimes had on the victims. None of the misconduct stemming from the hearings has anything to do with those factors, Murphy argued.
Besides, Murphy argued, the person in the best position to know who to call as a character witness was Dekraai himself. Goethals was skeptical of any suggestion from Sanders that his client's jailers should be producing positive reports from guards on the inmate's conduct in jail.
Bethany Webb, the sister of Dekraai victim, Laura Webb Elody, said she hopes Goethals dismisses the death penalty.
She said 90 to 95 percent of the victims' families want the attorney general to stop pursuing the ultimate punishment for Dekraai.
"We don't want to come here anymore," Webb said. "I'm begging the judge to realize how broken this is and to set us free."