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August 18, 2017

Califorina judge precludes death penalty for mass murderer as sanction for government misconduct

A helpful reader made sure I did not miss the notable state trial ruling reported in this new HuffPost piece.  As the piece reports, "Scott Dekraai, a 47-year-old man who admitted to killing eight people at a beauty salon in the worst mass shooting in Orange County, California, history, will not face execution for his crimes because of law enforcement misconduct linked to a jail informant program, a judge ruled Friday."  Here is more:

In a rare move, Superior Court Judge Thomas Goethals excluded the death penalty as a punishment option.  The ruling comes after the judge held weeks of hearings centered on whether the Orange County Sheriff’s Department could be trusted to turn over all records in the case.

It’s now expected that next month Goethals will sentence Dekraai to eight consecutive life terms in prison without the possibility of parole ― unless the California Attorney General’s office files a challenge to the ruling with the 4th District Court of Appeal.  “This is not a punitive sanction,” Goethals said in court Friday. “Rather it is a remedial sanction necessitated by the ongoing prosecutorial misconduct.”

Deputy Attorney General Michael Murphy ― the prosecutor who took over the Dekraai case after Goethals recused the Orange County District Attorney’s office due to misconduct ― had argued that the judge should keep the death penalty on the table.  Murphy said that Goethals had already doled out the appropriate sanctions in removing the district attorney’s office from the case and that excluding the death penalty would amount to an additional, unnecessary sanction.  Ultimately, Goethals disagreed. Reading from his ruling, the judge said that compliance by prosecutors and other law enforcement officers with his lawful court orders to turn over evidence in the Dekraai case “remains an elusive goal” and that ignoring those violations would be “unconscionable.”...

The judge’s ruling is extraordinary in the case of a mass murderer.  Dekraai almost immediately confessed to police about his role in the 2011 killing. He formally pleaded guilty to the crimes in 2014.  It appeared Dekraai would swiftly be dispatched to San Quentin’s death row.  But the case against him has been marred by allegations of egregious government malfeasance. His sentencing has remained in limbo amid ongoing allegations that county prosecutors and sheriff’s deputies improperly used a jailhouse informant in his case and then hid key evidence about that for years....

Just days after the 2011 shooting, county law enforcement moved Dekraai, then held in a local jail, next to a prolific jailhouse informant, Fernando Perez. Perez questioned Dekraai about his case. Then prosecutors and law enforcement officers interviewed Perez, and a recording device was placed in Dekraai’s cell, capturing more conversations between the pair.

While it is generally legal for law enforcement authorities to use informants to help bolster cases, Dekraai’s lawyer, Assistant Public Defender Scott Sanders, has argued that in the particular circumstances, the move was a violation of his client’s constitutional rights.  That’s because it is illegal for government agents, including informants, to question or coerce statements out of a defendant who has been formally charged with crimes and is already represented by a lawyer, as Dekraai was.  Prosecutors contended there was no intentional violation because they did not instruct Perez to question Dekraai.

While the contents of the conversations between Dekraai and Perez remain sealed, court records have shown that the informant did probe Dekraai about his crimes.  As Sanders requested more information about the contacts between the two men, he discovered that Perez had also been used as an informant against another one of his clients, Daniel Wozniak.  Wozniak was sentenced to death last year for the killing of two of his friends in an attempt to fund his wedding.

Prosecutors said it was simply a coincidence that the same informant was used against two of Sanders’ most high-profile clients, but the public defender didn’t believe that. Sanders pushed to uncover what would turn out to be tens of thousands of records about the use of informants inside county jails by prosecutors and sheriff’s deputies.... Additional evidence of the informant program came to light over the course of four years and three evidentiary hearings. Sanders’ efforts would ultimately reveal a disturbing trove of long-hidden records: a 25-year-old computerized system that detailed critical information about jail inmates and informants; more than four years of logs created by deputies who managed the informants, which was deleted in 2013 just days before Judge Goethals issued an order requiring its disclosure; and internal sheriff’s department memos, including one boasting of “hundreds of informants.”...

Nonetheless, the sheriff’s department continues to deny a jail informant program exists.  In recent hearings, Sheriff Sandra Hutchens and members of her command and management staff suggested that if there was any informant-related misconduct in the jails by deputies, it was the work of just a handful of rogue officers operating independently of their orders.  Three deputies refused to testify at the hearings, invoking their Fifth Amendment right to silence.  Leaders of the sheriff’s department have also said they’ve made changes to how deputies handle inmates in the jail. The district attorney’s office has maintained that any misconduct by county prosecutors was unintentional and that the scandal has been overblown....

 The 4th District Court of Appeal found last year that the cheating by prosecutors and sheriff’s officials in the county was very real and that the “magnitude of the systemic problems cannot be overlooked.”  Afterward, the U.S. Department of Justice announced an investigation into the official use of jail informants in Orange County.

The scandal had already led to the unraveling of more than a dozen murder, attempted murder and felony assault cases in the county and threatens to upend countless more.  But the ruling in Dekraai’s case on Friday is arguably the most crushing defeat that the beleaguered district attorney’s office has faced since the scandal broke.

UPDATE: A copy of the ruling referenced above is available at this link.

August 18, 2017 at 02:55 PM | Permalink


To paraphrase what criminal defense lawyers learn after many years of practice: "There are only a few words that a rogue prosecutor truly understands: reversed, dismissed, and vacated."

Posted by: Dave from Iowa | Aug 18, 2017 3:10:30 PM

I think jail house informants are a big problem, I think law enforcement officers who take the 5A are an every bigger problem and I have never understood why they are not forced to categorically waive that right as a condition of employment. Having said that, I am not sure that taking the DP off the table is the correct answer in this situation. I don't see how taking the DP off the table is a "remedial sanction" as the judge claims for what exactly does it cure? It certainly doesn't cure the malfeasance if the malfeasance is ongoing. As I see this ruling treats the DP as a reward for the prosecution and this something that can be taken away in order to penalize them. That is a weird perspective to me.

Posted by: Daniel | Aug 18, 2017 3:29:00 PM

I also wonder what exactly an informant would have added in this case, I can understand an informant being useful in a guilt-phase proceeding but that was apparently open and shut in this instance. I have a much harder time seeing an informant having anything relevant to contribute for sentencing (even DP sentencing).

Posted by: Soronel Haetir | Aug 18, 2017 4:00:38 PM

Daniel writes, " As I see this ruling treats the DP as a reward for the prosecution and this something that can be taken away in order to penalize them. That is a weird perspective to me."

But its the same theory underlying the exclusionary rule. As Cardozo has aptly said, "Shall the criminal go free because the constable has blundered."

Answer yes. Because, as experience teaches, suppression of evidence, is the the only practical way of deterring prosecutorial (or police) misconduct. So, here, putting the death penalty off the table, is the only practical way of deterring future misconduct.

Posted by: Emily | Aug 18, 2017 4:01:19 PM


Yes I agree with the exclusionary rule. But I don't see the same social interests at stake in sentencing as I do in the guilt phrase. A person is innocent until proven guilty but after they have been proven guilty the calculus changes. Indeed, if we think about this case carefully what the judge did was penalize the prosecution in the sentencing phase for something that the prosecution did in the guilt phase and that for me is a big no no. @Doug and I had a similar conversation regarding the CA medical pot growers. If the government committed misconduct during the guilt phase then the proper sanction is either exclusion of the evidence or dismissal of the charges but it can't be the suspending or shorting of the sentence. The judge here tries to get around this problem by claiming that the misconduct by the executive branch is "on going" but so what? The question is not when the misconduct occurred in chronological time but what part of the judicial process the misconduct was directed at.

As I see it the judge here probably should just dismiss the charges. But he doesn't want to do that as a sanction because there would be hell to pay for letting a mass murderer walk free. So he looks at his tool box and asks what can he do to stick it to the prosecution and he comes up with a very short list of options of which taking the DP off the table is one. From a certain perspective that is a proportional response, I simply don't think it makes any logical sense.

Posted by: Daniel | Aug 18, 2017 4:50:43 PM

Daniel writes in response to Emily, "I simply don't think it makes any logical sense."

Daniel is right, but as Justice Holmes reminds us, the life of the law is not logic; it is experience.

Posted by: Taylor | Aug 18, 2017 8:45:22 PM

Brazen display of shocking lawyer profession stupidity. This incredible stupidity is well known. More shocking is the stupidity of the people here whose intellect has not been decimated by a legal education.

1) A listening device is placed in a cell. It records the voluntary statements of a mass murderer. These statements are made under circumstances promoting candor, rather than the really stupid lawyer procedure that promotes the cover up. Not only is this really stupid lawyer procedure inducing a cover up, it implants false memories. So, 25% of exonerated people confessed to murders they had not committed by the incredibly stupid agents of the incredibly stupid prosecutor, the pigs. So, obtaining the reliable statement of the truth is a form of unethical misconduct;

2)there is no mention that the information skewed, or distorted any aspect of the verdict or of the sentencing process. So, this is misconduct that caused no harm, no reversible error, no effect on validity of any outcome;

3) what is the remedy by this incredibly stupid judge? He privileges a mass murderer, to punish a prosecutor who is completely unaffected, personally. But, the future victims of this mass murderers will pay the price instead. The judge fails to understand the Prince and the Pauper Effect that is the exclusionary rule. The Prince has been a bad boy. The Pauper is spanked. How does that improve the conduct of the Prince? I do not understand this incredibly stupid rule. If the evidence was obtained in violation of the Fourth Amendment, punish the police, and the prosecutor, who is their master. Charge legal costs to their personal assets. Throw the police and the prosecutor in jail. Have them lashed and caned. But do not punish the future victims of the criminal they are loosing on the public, or in the general population of the state penitentiary.

This incredibly stupid judge must be impeached. Statutes should reverse all use of the exclusionary laws, and replace them with direct punishment of the offending police and prosecutors.

Posted by: David Behar | Aug 18, 2017 10:05:52 PM

"From a certain perspective that is a proportional response, I simply don't think it makes any logical sense."

So, it depends on the perspective. If you have a different one, it's logical.

The article has a link to the ruling, but a direct one: https://s3.amazonaws.com/big.assets.huffingtonpost.com/DekraaiRulingStrikingDeath81817_1.pdf

Much of the opinion is to discuss the violation. Skip to the conclusion. More on how bad the violation is. Then, there is a discussion of conflicting desires of victims, including many asking him to give LWOP. Ultimately, the judge argues the result here is necessary as a remedial solution (early on, it noted it had wide discretion) to promote justice in the future. A dismissal was not an option.

I think that works.

Posted by: Joe | Aug 18, 2017 10:37:56 PM

(on some level, given how nearly no death sentence is actually carried out in CA, not sure how much giving this guy LWOP really is much of a sanction, but you are penalizing the prosecutor & taking away an option like that is one way to do it)

Posted by: Joe | Aug 18, 2017 10:55:57 PM

"...to promote justice in the future."

We know you are a weasel. Now we know you are law trained moron, as well. Every Life Skills student I have ever spoken to is far smarter than any Supreme Court Justice. Although they are undergoing extensive and rigorous training to eat food with a spoon, they have far more common sense.

Deterrence of any kind violates Fifth Amendment procedural due process right to a fair hearing. How does punishing someone, in this case, the victims of the defendant, past and future, to scare someone acting in the future, who may or may not exist, who may have never known about this decision, and whom no one in the case has ever met make the least amount of sense even to people learning to eat with a spoon?

The mention or even the implication, or reference to deterrence should result in an immediate, mandatory, and automatic mistrial.

All Supreme Court Justices must be forced to attend Life Skills classes by a new Judiciary Act.

Posted by: David Behar | Aug 18, 2017 11:04:14 PM

A final comment: the prosecution here is basically "the people" -- a representative of the people overall. They provided a sanction (death penalty) but the process was abused. So, it is appropriate, as in the exclusionary rule situation, to exclude something to promote justice as a whole. This also ties it to the specific event.

Posted by: Joe | Aug 19, 2017 11:18:09 AM


That is taking Justice Holmes too far. He said what is living in the law is experience but he never said everything in the law was living. So properly understood Justice Holmes comment relates to how law evolves. It is also worth nothing in this context that his words were uttered about the common law and this case is not a common law case. So Holmes is inapposite.


Yes, of course, at a certain level of abstraction all is one, one is all and I can become a Buddha simply by going to the local pizza parlor and ordering one with everything. There is a term for the kind of reasoning you employ: it is called facile.

Posted by: Daniel | Aug 19, 2017 11:49:35 AM

(sigh.) "It is also worth /noting/..." though the wags will says that I made a Freudian slip.

Posted by: Daniel | Aug 19, 2017 11:51:03 AM

A weasel, a moron. You embrace the Prince and the Pauper Effect. Prince is a bad boy, so spank the pauper, to teach the Prince a lesson, and to improve the Prince's future behavior.

By the way, the whipping boy doctrine does not just violate the Fifth Amendment procedural (real) due process, behavioral principles, all common sense, but also the Establishment Clause. It was based on the idea that the monarch spoke with the voice of God (a delusional and psychotic doctrine), and had immunity based on his Divine Right.

You, moron, you psycho, along with appellate court judges. I know that students in Life Skills would disagree with you. If asked, who should get spanked, they would point with their spoons at the Prince if it were he that had been a bad boy.

Posted by: David Behar | Aug 19, 2017 5:35:25 PM

Funny that this is a law blog yet so many here, who profess at least an interest in the law, are so quick to defend its corruption by those appointed to implement and defend it. The police and prosecutors are the front line - those who largely hold the lives of millions of Americans and others in their hands. If they can escape sanction for abuse - whether or not you happen to believe the guilt of the person on trial - then all is lost for Justice. There are no bigger principles at stake than that all defendants receive an honest, fair and unbiased prosecution. When a life sentence or or something like is readily available as an alternative, a sanction in favor of a defendant, which spares life, is most assuredly a "price" well worth paying.

Posted by: peter | Aug 20, 2017 6:33:58 AM

Peter. We agree that police and prosecutors should have the accountability that others have. What do you think about punishing others for their carelessness or corrupt conduct? Isn't that the stupidest, unfair, and lawless way to hold them accountable? Well, that is the exclusionary rule.

You should join me in calling for ending all immunities for these incompetents and corrupt officials, in accordance with professional standards of due. The latter mean, they will be policing themselves, since peers will have to demonstrate any deviation to a jury or to a judge.

Posted by: David Behar | Aug 20, 2017 2:06:08 PM

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