Prosecutors and officers caught in brazen scheme to manipulate evidence

Prosecutorial and police misconduct are often dismissed as just a few bad apples doing a few bad apple-ish things. But what happens when it’s entrenched and systemic and goes unchecked for years? That looks to be the case in Orange County, California, where the situation got so completely out of hand this spring that Superior Court Judge Thomas Goethals issued an order disqualifying the entire Orange County District Attorney’s Office (that’s all 250 prosecutors) from continuing to prosecute a major death penalty case.

150528_JURIS_ThomasGoethals.jpg.CROP.promovar-mediumlargeCertain 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 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.”

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.”

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