Metropolitan News-Enterprise


Wednesday, November 23, 2016


Page 1


In Orange County Case:

C.A. Upholds Recusal of Entire D.A.’s Office


By a MetNews Staff Writer


—Booking photograph


The Court of Appeal yesterday affirmed an order recusing the entire Office of Orange County District Attorney from participating in the penalty phase for a man who pled guilty to the 2011 murder of eight persons in a Seal Beach hair salon.

Orange Superior Court Judge Thomas Goethals last year booted District Attorney Tony Rackauckas and his deputies from the case after finding that two sheriff’s deputies had “either intentionally lied or willfully withheld material evidence” about the database on jailhouse informants, and that the D.A.’s Office was so linked to the county’s law enforcement agency as to create a conflict of interest.

He acknowledged that there was “no direct evidence” that the District Attorney’s Office knew about a database on inmate’s movements or “actively participated” in concealing evidence of the database, but found that its loyalty to the Sheriff’s Department precluded it from performing its proper functions.

The defendant in the case, Scott Dekraai, had been housed next to a jailhouse snitch.

Goethal’s recusal order was pursuant to Penal Code §1424(a)(1) which provides that a motion to recuse a prosecutor “may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” The judge found such unlikelihood.

A.G.’s Argument Rejected

Presiding Justice Kathleen O’Leary of the Fourth District’s Div. Three firmly rejected the contention of the Attorney General’s Office that Goethal’s order went too far. She declared:

“On the last page of the Attorney General’s reply brief it states, ‘The trial court’s order recusing the OCDA from prosecuting Dekraai’s penalty phase trial was a remedy in search of a conflict.” Nonsense. The court recused the OCDA only after lengthy evidentiary hearings where it heard a steady stream of evidence regarding improper conduct by the prosecution team. To suggest the trial judge prejudged the case is reckless and grossly unfair. These proceedings were a search for the truth.

O’Leary noted that Goethals heard from 39 witnesses over a period of six months.

The jurist scoffed at the contention by the Attorney General’s Office that the Orange County Sheriff’s Department (“OCSD”) was entirely at fault, and that the Orange County District Attorney’s Office (“OCDA”) had nothing to do with the confidential informant (“CI”) program in the county’s jails. She wrote:

“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. Given the benefit the OCDA received from OCSD’s CI program over the years, it would not be unreasonable to conclude the OCDA was aware of the CI program and at the very least should have inquired about CIs housing and movements.”

‘Institutional Interests’

O’Leary went on to say:

“A district attorney’s impartiality may be impaired by institutional interests….Institutional interests and structural incentives like the one present here, a loyalty to protect, can be analogized to those cases where there was a familial relationship between the victim and the district attorney’s office. In these cases, courts have concluded the district attorney could not exercise its discretion impartially….

“Here, institutional interests and structural incentives between the OCDA and OCSD constituted a genuine conflict of interest. In Orange County, the OCSD is charged with investigating crimes, and the OCDA is charged with prosecuting those crimes. In this case though, the evidence demonstrates the OCSD, in its secondary capacity as county jailer, created and maintained a CI program whereby it continued to investigate criminal activity in contravention of targeted defendants’ constitutional rights….[T]he only identifiable use for the evidence the OCSD obtained from its CI program was for use by the OCDA. The OCDA’s loyalty to protect its primary law enforcement partner and its work interfered with its professional and ethical responsibilities. Here, the OCDA’s loyalty to the OCSD interfered with its ability to discharge its constitutional and statutory obligations. Not only did the OCDA intentionally or negligently ignore the OCSD’s violations of targeted defendants’ constitutional rights, but the OCDA on its own violated targeted defendants’ constitutional rights through its participation in the CI program.”

Fair Hearing Unlikely

Not only did a conflict exist, she wrote, but “there was substantial evidence the OCDA’s conflict of interest was so grave it was unlikely Dekraai would receive a fair penalty hearing,” completing the requirements of §1424(a)(1).

The Office of Attorney General Kamala Harris argued that it would be a matter of “sheer speculation that law enforcement officials will continue to conceal information” if the Orange County prosecution office remains in the case. O’Leary insisted:

“Dekraai will remain in OCSD’s custody and under its control throughout the penalty phase. That being the case, it remains unlikely that Dekraai will receive a fair penalty phase if the OCDA remains in control of the litigation.”

The case is People v. Dekraai, G051696.


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