Orange County California DAs’ Office disqualified from seeking death penalty against Seal Beach murderer

Since the 1980s, the Orange County District Attorney’s Office (OCDA) in California and the Orange County Sheriff’s Department (OCSD) apparently have been routinely violating the constitutional rights of incarcerated defendants awaiting trial to remain silent (Fifth Amendment), to counsel (Sixth Amendment) and to due process of law (Fourteenth Amendment) by placing jailhouse informants in adjoining cells with instructions to elicit confessions from them in return for extra privileges, reduced sentences and cash payments. When they testified about the confessions, the jailhouse informants denied requesting or receiving any benefits in exchange for their testimony and the OCDA and OCSD concealed the existence of the agreements. The polite description of this arrangement is subornation of perjury.

Dahlia Lithwick reports for Slate,

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.

The death penalty case is People v. Scott Dekraai, who is in custody awaiting a penalty phase hearing after pleading guilty last year to killing his ex-wife and seven others at a beauty parlor in Seal Beach in 2011. Dekraai’s attorney is Santa Ana assistant public defender Scott Sanders, who realized that a jailhouse informant who had produced damning evidence about Dekraai had done the same thing to another client he was representing. Sanders smelled a rat, so he commenced an investigation that resulted in the discovery of “60,000 pages of records indicating that the county sheriff’s office routinely used and coordinated with those informants to get around the constitutional prohibition on eliciting incriminating statements from defendants who had lawyered up and should not have been interrogated.”

Sanders also found out “that the Orange County Sheriff’s Department has maintained a massive, secret, 25-year-old computerized record-keeping system called TRED. These TRED documents were full of potentially exculpatory data, but the agency officials had systematically refused to turn any of them over, or even acknowledge their very existence, to defense counsel.”

Judge Goethals refused to dismiss Sanders’s motion to dismiss the death penalty but he granted the motion to disqualify the OCDA and its 250 prosecutors. Kamala Harris, the Attorney General for the State of California, is appealing his order.

The alleged misconduct, if true, is not only an egregious violation of three constitutional rights, it’s a 25-year practice of concealing what they were doing. The rules are clear. After a suspect/defendant is represented by counsel, the prosecution and the police are prohibited from contacting him without permission from the attorney. They are also prohibited from attempting to get around the rule by using inmates to obtain confessions from defendants represented by counsel. In that situation, the inmate becomes an agent of law enforcement acting under their direction and control. A violation of this rule is a violation of a defendant’s right to remain silent and his right to have counsel present during an interrogation. The remedy for violating this rule is exclusion of the confession.

This rule does not prohibit inmates from acting on their own, which often happens when an inmate seeks to lighten his load by obtaining a confession from the defendant. If successful, he will contact law enforcement or the prosecutor assigned to the case and play, ‘Let’s Make a Deal.’

Unfortunately, if he is unsuccessful, he may invent a confession containing inside information about the offense. There are ways to obtain that information, for example, by contacting a clerk or paralegal in the prosecutor’s office and misrepresenting himself to be a reporter or a lawyer calling about the case. The OCDA and the OCSD apparently decided to make it easy by streamlining the process and lying about it afterward. Rewards, including promises to reward informants in the future are considered exculpatory evidence that must be disclosed to defense counsel. Failure to do so is a violation of the Due Process Clause of the 14th Amendment.

Why did they do that? To get the conviction, of course.

Easy to do when you believe everyone is guilty and constitutional rights are mere impediments to convicting the guilty.

Orange County now has an enormous mess to clean up and God only knows how many innocent people have been wrongfully convicted and sentenced to prison behind this institutional misconduct. Perhaps they will find out an innocent person was executed.

I have said many times that criminal defense attorneys are liberty’s last champions. If they do their job, as Scott Sanders did in this case, they force everyone else to follow the rules. Unfortunately, it took 25 years for that to happen in Orange County.

Last but not least, the District Attorney for Orange County is Tony Rackauckus, the guy who personally prosecuted the cops who beat Kelly Thomas to death. Now, I’m no longer surprised by the verdict.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.


  1. Frederick Leatherman
    June 1, 2015 at 6:42 pm

    Orange County is an alien place to me. Too many right-wing-wacko-minority-hating-police-can-do-no-wrong idiots.

  2. ThingsComeUndone
    June 1, 2015 at 6:44 pm

    This seems to me to be huge no DA, police dept has ever had that happen so has the media talked about this story at all is my question?

  3. ThingsComeUndone
    June 1, 2015 at 6:44 pm

    Will the lawyers involved get their law licsense suspended?

  4. ThingsComeUndone
    June 1, 2015 at 6:53 pm

    See that makes this ruling so surprising LA with a huge minority population I could see this happening Orange County I would have expected violent riots in support of the DA and police .

  5. Frederick Leatherman
    June 1, 2015 at 7:10 pm

    Not much. They appear to be pretending it didn’t happen.

  6. Frederick Leatherman
    June 1, 2015 at 7:12 pm

    Don’t know. That should be the least of their worries. They should be prosecuted and sent to prison.

  7. June 1, 2015 at 7:19 pm

    To be clear, the judge only barred the OC DA from working on this one case, albeit a Death Penalty one…! I wonder if all the Public Defenders/Defense Attorneys in OC are busy filing appeals….?

  8. dubinsky
    June 1, 2015 at 7:52 pm

    good post, Fred. thanks.

    and Lithwick is to be commended for her story.

  9. dubinsky
    June 1, 2015 at 8:37 pm

    won’t you lead a phalanx of defense attorneys in working to prevent the DAs from being convicted?

  10. ThingsComeUndone
    June 1, 2015 at 8:57 pm

    I wonder how many people died in police custody in orange county the news says we have national numbers for this year. The Feds did not provide the numbers and past year numbers could lead to tons of lawsuits.

  11. Frederick Leatherman
    June 2, 2015 at 6:27 am

    Yes, she really does outstanding work.

  12. Frederick Leatherman
    June 2, 2015 at 6:42 am

    Yes, that’s right. The prosecutors are pissed off at the judge and have been routinely filing affidavits of prejudice against him when their cases are assigned to him. In California each side is permitted to request reassignment of their case to another judge without having to state a reason. Their request will automatically be granted. To be clear, they do not get to pick the judge to whom it will be assigned. The Clerk’s Office handles the reassignment.

    As a result of this practice, Judge Goethals doesn’t have very many criminal cases anymore.

    FYI: Federal courts do not have a similar rule. Don’t know about Hawaii state courts.

  13. Frederick Leatherman
    June 2, 2015 at 6:44 am

    Heh! Nope, they ain’t innocent.

  14. gratuitous
    June 2, 2015 at 11:53 am

    The media aren’t talking about it because it’s apparently not a news story. And who can blame them? Our government has been operating pretty lawlessly for the last decade or more, and we’ve been open and up front about it: We’ll torture people for no reason; we’ll lock them up indefinitely without charge or access to counsel; we’ll blow people to bits merely on the suspicion that they might be planning to attack the United States at some indefinite point in the future (as a bonus, we’ll also blow anyone nearby to bits – we ain’t very picky); and more. All in the name of “national security” which results in any number of consequences, but a more secure nation doesn’t seem to be one of them.

    Orange County is just operating in the same vein, and I suspect we’ll be treated to a lengthy explanation for and defense of this lawlessness, condescendingly given to we who don’t understand or appreciate the fine work these public servants are rendering to an ungrateful public.

  15. Frederick Leatherman
    June 2, 2015 at 2:29 pm

    Unfortunately, I think you’re right. I believe Orange County is the rule rather than the exception. I know it’s a lot worse in Kentucky where I used to live. They don’t even put forth an effort to put on the appearance of respecting constitutional rights. The judges allow prosecutors and police to do anything they want to do anytime they want to do it. Defense attorneys merely facilitate guilty pleas.

  16. dubinsky
    June 2, 2015 at 2:41 pm

    you have an outstandingly lithe conception of innocence.

    IIRC you claimed that each and every prisoner held in Gitmo was innocent.

  17. Frederick Leatherman
    June 2, 2015 at 3:58 pm

    Not so lithe a conception of innocence as to believe the cops and prosecutors who knew about and participated in the violation of defendants’s 5th, 6th and 14th amendment rights and lied about it afterward were innocent.

    Sorry. Couldn’t restrain myself. You walked into that one.

    Seriously, I do believe most, if not all of the GITMO prisoners are innocent. IIRC, I think a military prosecutor agrees.

  18. dubinsky
    June 2, 2015 at 4:47 pm

    pleased that you have some limits.

    there are times when your remarks seem to indicate otherwise.

    people in the prosecutor’s office really do deserve indictment and more.