Mimesis Law
16 August 2017

The Orange County Squeeze

July 29, 2016 (Fault Lines) – One of the insights into humanity you get by having worked on both the prosecution and defense is how much wearing the right jersey matters. You get hateful comments from folks no matter which side you’re on. And usually it’s mostly based on the jersey you’re wearing and not any substance. One of my personal favorites was a newspaper commenter who compared me to the Iraqi Minister of Information. Someone wins and someone loses; so, there’s always an angry person or two.

Prosecutors and police officers are usually seen as part of team law enforcement. Sort of like Team America, but way cooler. This is understandable, as catching the bad guy is incomplete until you convict the bad guy. Each end of the process needs the other to function.

But to some degree, this is an insider’s view. From the outside, the criminal justice system can look like everybody but the defendant is part of a reality television show that is unfolding in real time. Certainly, from the defense perspective, it feels like every employee for the state is diligently working to do their part to put the defendant away. Typically, from this perspective, judges are considered ex officio members of team law enforcement.

When police officers and prosecutors skirmish and have territorial disputes, it’s not usually something seen publicly. On the other hand, when judges and law enforcement clash, it’s usually public, but the clash is not always worth more than a brief mention in a news story. Then there are exceptions, like the very special Omaha police officers discussed by wayward Ohioan, Judge Kopf.

Scott Greenfield then pointed out to Judge Kopf that cops don’t see judges as special either:

But for any judge who might miss the point, police officers don’t love you as much as you love them. They may feign respect, but you’re just some clueless “power tripping” moron in a robe.  And they will call you “yer honor” to your face, and something far less respectful behind your back.

Most importantly, they will appear to accede to your order to play their game in your courtroom, but check their ankle for the gun they didn’t give up. Just as they’ve been lying to us all along, they’re lying to you as well. You’re not special.

Is there friction like this between prosecutors and judges? You betcha. One such battle is playing itself very publicly in Southern California. In case email hacks, political conventions, and the near weekly terrorist attack have washed this from your memory, the issue started with jail snitches. You know the type of clients Scott won’t represent. Also, Judge Kopf has offered helpful tips for attorneys to avoid your snitch getting stiches.

Before discussing the facts of the Orange County scandal, a little legal background is necessary. Under the Massiah doctrine, the Sixth Amendment prohibits the government from eliciting and then using incriminating statements, if the right to counsel has attached. So, sending an informant into the jail to elicit incriminating statements typically is prohibited.  At least it’s prohibited everywhere else but Orange County.

This story starts in October, 2011, when Scott Dekraai walked into a salon where his ex-wife worked and opened fire, killing eight people total. Not surprisingly, the prosecutor sought the death penalty. Despite Dekraai confessing to the crime, the prosecutors and deputy sheriffs sent a snitch into the cell and then hit the record button. For reasons that escape explanation, they recorded over 100 hours of conversations in a case that looked remarkably straightforward. Evidence is apparently like bullets, you can never have a enough.

Dekraai’s counsel learned of this and then filed a motion arguing that the defendant could not be subjected to the death penalty. What then unfolded was what no criminal defense lawyer would dare to dream:

Over the course of the hearing, Sanders called to testify some 28 prosecutors and law enforcement officers, along with snitches like Perez and Moriel. Much of the testimony was simply incredible.

Prosecutors called to the stand consistently shifted their stories and minimized their infractions. Sure, there may have been instances of failure to turn over evidence to the defense, they argued, but that’s because they were carrying a heavy caseload. Or because they didn’t fully understand the requirements of the laws they’re bound to uphold — namely Brady and Massiah, among the most basic laws governing due process for criminal defendants. At least one prosecutor repeatedly insisted he simply couldn’t recall why he’d failed to turn over Brady materials.

But that wasn’t the end of it. After more evidence was uncovered, Dekraai’s attorney went back to the court:

At the close of the hearing, Goethals was so disturbed by the new evidence that he concluded the entire OCDA should be recused from prosecuting Dekraai’s pending death penalty case. On March 12, 2015, he amended his previous ruling — this time agreeing that there were “serious, ongoing discovery violations” in the case. The judge called out Tunstall and Garcia by name for having “either intentionally lied or willfully withheld information,” as well as Petersen, the veteran gang prosecutor, whom he “did not believe.”

He also faulted District Attorney Tony Rackauckas for failing to ensure that defendants’ constitutional rights were upheld not only by prosecutors but also by the law enforcement personnel with whom they work in tandem. “Certain 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,” Goethals wrote. “There is nothing funny about that.”

Under political pressure, the District Attorney formed a blue ribbon commission that didn’t exactly know how the game was played:

“Failure of leadership” at the Orange County district attorney’s office led to repeated problems with the handling of jailhouse informants and helped erode confidence in criminal cases that rely on their testimony, according to a report made public Monday.

The findings, presented by legal experts on a special committee established by Dist. Atty. Tony Rackauckas, described the office as functioning “as a ship without a rudder” and faulted some of its prosecutors for adopting a “win-at-all-costs mentality.”

But as the District Attorney saw it, the real problem here was Judge Goethals. The D.A. had been embarrassed and criticized, and he was going to be sure that the Judge paid for it. California, like other states, has a system whereby the attorneys on the case can seek to have the presiding judge disqualified. But California seems to have an extremely low bar for disqualification, which is the mere belief of the litigant that the judge will be unfair.

So, the District Attorney’s Office began “blanket papering” Judge Goethals, essentially kicking him off every criminal case. The Judge kicked the D.A. off an earlier case, now the D.A. would kick the judge off all their cases. Tit-for-tat. And the appellate judges could do nothing but watch a colleague get flushed down the legal crapper:

In sum, we agree with the dissenting view of Justice Tobriner: “the use of ‘blanket’ challenges under section 170.6 to disqualify a judge because of his judicial philosophy or his prior rulings on questions of law seriously undermines the principle of judicial independence and distorts the appearance, if not the reality, of judicial impartiality. . . . [We] do not believe that the judiciary [should be] helpless to prevent such an abuse of the section 170.6 disqualification procedure, particularly in a case—such as the present one—in which the improper basis of the disqualification motion clearly appears on the face of the record.” (Solberg, supra, 19 Cal.3d at p. 205, dis. opn. of Tobriner, J.)

In sum, judicial independence is for chumps. Why not let the prosecutor pick the defendant, the charge, the timing, and the judge? Maybe there is a way to disqualify the entire jury too. It would certainly speed things up if the entire judicial branch could be skipped over. And we need to address that pesky Constitution while we’re at it too.

This is a puzzling feature of California law. Certainly there needs to be a safety valve to remove judges who won’t recuse themselves from a case when appropriate. Despite what the California Supreme Court says, this standard is breathtakingly low. It’s the legislation version of feelz.

Lest you think that the District Attorney is going to go down without bringing everyone else down with him, the Attorney General happily shanked the Sheriff’s Department:

Even the OCSD was surprised by the picture presented in the brief.

“The Sheriff has some concerns about some of the assumptions made by the attorney general about some of the OCSD’s employees in the brief, despite their investigation not being concluded,” Lt. Jeff Hallock, spokesman for the sheriff’s department, told HuffPost.

Legal experts who spoke to HuffPost shared similar sentiments.

The brief “essentially denies that the OCDA’s office did anything wrong and says that [Goethals] abused his discretion,” wrote Erwin Chemerinsky, dean of law at the University of California, Irvine, in an email to HuffPost.

Tucker Carrington, assistant professor of law at the University of Mississippi, offered a scathing critique of the brief to HuffPost, saying that the AG office is taking a position that is “contrary to established factual findings” and is also completely contradictory to the “purported objectivity” of its investigation.

“As I recall, the court found that a OCDA prosecutor had lied to the court,” wrote Carrington in an email. “That fact is left out of the brief, as far as I can see.”

If you wore a black robe or lacked esquire behind your name, then you were on the wrong team. The only special ones here are the folks that should have known better and willfully did wrong. This was beyond even what the warrior-prosecutor would imagine possible. It was an institutional failure of startling proportions. And without any true independence in the judiciary, the train just keeps on rolling.

4 Comments on this post.

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  • Wrongway
    29 July 2016 at 9:34 pm - Reply

    They’re still fighting over this in Orange County !?
    Its time to clean house at the OCDA’s office & just start over.
    Although I’d imagine it’s pretty hard to impeach a County DA, no matter how easy it is to recuse a Judge.
    And why isn’t this front page news in the Orange County Papers ??

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    16 August 2016 at 9:25 am - Reply

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    10 October 2016 at 8:59 am - Reply

    […] It so happens that the very same Deputy Public Defender, Scott Sanders, while working two high profile death penalty cases, exposed the fact that for 25 years the Orange County Sheriff’s Department had been secretly running a computer information system called TRED containing information, much of it exculpatory on inmates, and a program to use informants to either compel defendants to incriminate themselves or to lie outright so that the DA’s office could win cases. This was covered by Fault Lines contributor Andrew King. […]

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