About this story: This report was written by Edward Humes, the author of 13 nonfiction books and winner of the Pulitzer Prize for his Orange County Register coverage of the military. The story is based on extensive reporting by the Register’s staff, including Tony Saavedra, David Ferrell, Kelly Puente, Tom Berg and Ian Wheeler, previously published stories and legal documents obtained by the newspaper since the arrest of Scott Dekraai after the worst mass shooting in Orange County history. Illustrations were drawn by Jeff Goertzen. Read more at the Register’s ‘Inside the Snitch Tank’ site
On his last day of freedom, Scott Dekraai spoke on the phone with his ex-wife. Let’s meet for coffee, he suggested.
Michelle Fournier was shocked. A day earlier they had squared off at yet another court hearing in their acrimonious battle over custody of their 8-year-old son. Things had not gone Dekraai’s way at the hearing, and the argument had continued on the phone, until Dekraai brought his ex-wife up short with his suggestion that they meet in person.
No way, Fournier responded. She did not want to see him. Definitely not.
This would prove to be a fateful decision. If he couldn’t have a one-on-one, Dekraai decided after hanging up on Fournier, he’d just have to confront his ex-wife at her workplace instead – one last time. Then he walked out to his garage to survey his well-oiled collection of five pistols, four rifles and a 12-gauge shotgun.
The violence that followed just a few hours later would make national head-lines.
It would alter the course of lives and families for years to come.
It would drag a peaceful, tight-knit community into an exclusive club no one wishes to join: the fraternity of towns marred by mass murder.
And, finally, the official response to Dekraai’s rampage would expose and shame Orange County authorities who in their zeal to ensure a win in court had stopped playing by the rules that ensure justice for all.
Scott Dekraai, without ever knowing it, had exposed the snitch tank.
No town could have been less prepared for Scott Dekraai.
Scott Dekraai was, by most accounts, an angry man.
He had displayed his rage many times over the years to those closest to him. There was the stepfather he beat up over rent. There was his ex-wife, who told a friend that he put a gun to her head shortly after their wedding. And there was the ex-employer he had raged at and sued (unsuccessfully) for firing him for drug use on the job.
Neighbors and co-workers who knew him casually over the years thought him a great guy – even those who crewed with him aboard the close confines of ships and his neighbors in Huntington Beach at the time of the shootings. But those who knew him best agree that his life and behavior, already troubled, went drastically downhill in 2007 after a boat accident severely injured his legs. Despite multiple surgeries, the 41-year-old tugboat crewman had been left disabled, in constant pain, diagnosed with post-traumatic stress syndrome, and possessed of a hair-trigger temper.
He was never the same after that accident, more than one friend lamented. Sometimes Dekraai wished aloud that his most badly mangled leg had been amputated instead of salvaged. At least then the pain and the rage finally might have eased.
The latest custody dispute with his ex proved to be the final straw, Dekraai would later say.
Late on the morning of Oct. 12, 2011, he walked out of his neat single-story house in Huntington Beach. He walked by the lawn he kept freshly trimmed and the gray house paint kept perfect, with a decorative anchor set smartly in the garden and his American flag snapping in the breeze above a concrete driveway.
As he climbed into his white pickup truck and headed north to the next city up the coast, there was just one jarring element in this fastidious portrait of suburban life: Dekraai left the house in a bulletproof vest.
• • •
The center of life in Seal Beach is Old Town, with its old-fashioned Main Street – where local businesses rule, the curbside parking is unmetered, and the fanciest restaurant’s only dress requirement is shirt and shoes. This is Orange County’s (and Southern California’s) least known, least fashionable, throwback beach town, set against the concrete-lined San Gabriel River that divides Orange County from Los Angeles County. Seal Beach lacks the surf-town hustle of Huntington Beach, the high-end glitz of Newport Beach, the Riviera splendor of Laguna Beach. At the foot of Main Street stands the gray timbers of the Seal Beach Pier, and the stretch of sand on either side of it is so broad, flat and empty that, on weekdays at least, it’s possible to walk the strand and feel lonely.
It was not always this way. Seal Beach started where its sister beach towns to the south have ended up, glamorous and tourist-laden. Seal Beach was the first of the beach towns to be served by the Red Car Line, bringing in the ocean-bound hordes beginning in 1904. The city fathers enticed them by building what was then the longest pleasure pier on the West Coast, with 52 giant “scintillators” left over from the most recent world’s fair erected at the end. These huge light standards, arrayed like a battalion of soldiers staring out to sea, cast brilliant rainbows of light onto the water for night swimming. By 1920, the Jewel Café and the Seal Beach Dance Pavilion and Bathhouse with its 90-foot plunge flanked the pier and were the talk of the coast. Seal Beach was a must-stop for weekend beachgoers with a quarter to burn on the trolley, as well as for the stars of the silent screen arriving in their roadsters and limos. Cecil B. DeMille parted the waters in his first filming of the “Ten Commandments” here, as sightseers plied the beach walk on miniature wicker cars powered by electric motors. A giant roller coaster two blocks long towered over all, and celebrities popped into town aboard their private planes, which landed at the Seal Beach Airport, famous for its Airport Club 24-hour casino.
Prohibition and the Great Depression, followed by the demise of the Red Cars, ended all that, grinding Seal Beach’s incarnation as Sin City into dust. In its place arose a quiet family town known for its hokey, beloved Main Street Christmas parade, and for being one of the safest places to live in Orange County. Name a crime, and it occurs less often here than any other town in the area, and at a rate far below the national average. From 2005 to October 2011, there was exactly one murder in Seal Beach: an 88-year-old man shot his 86-year-old wife as she lay in a nursing home suffering from advanced dementia. The family begged the community for understanding in the wake of this “mercy killing.”
No town could have been less prepared for Scott Dekraai as he turned off Pacific Coast Highway a block away from Main Street and pulled into the busy Bay City Center shopping plaza. He drove past the center’s collection of shops, restaurants and offices painted in a beachy color scheme of cream and sea-green. Then he parked near a two-story building topped with a distinctive cupola, its second floor dominated by a dermatology clinic and its first floor split between a steak restaurant and a small business called Salon Meritage. Dekraai sat a moment and stared at the hair salon where his ex-wife worked, then stepped out of his truck in his body armor and walked to the door, armed to the teeth.
You shouldn’t be meeting that guy anywhere.
Earlier that day, Michelle Fournier packed a lunch for her son Dominic, then drove the second-grader from her Garden Grove home to McGaugh Elementary School in Seal Beach. She had two adult children from a first marriage but Dominic was her baby, and the bubbly 48-year-old doted on the boy whose custody and time she reluctantly shared with her ex-husband Dekraai. She particularly loved to cut Dominic’s hair herself, but the custody disputes had become so bitter and petty that Dekraai would take the boy to someone else for a haircut just to spite her. On Oct. 12, as the 7:55 a.m. bell sounded, Dominic marched off to class, his black school bag slung over his shoulder. Fournier watched him go, then left to get ready for work at nearby Salon Meritage.
Mother and son would never see each other again.
Not long afterward, Salon Meritage began coming to life for the day. Stylist Jeffery Segall arrived to help open up, followed by his friend and colleague Victoria Buzzo, who burst in wearing one of her signature splashy outfits. This time it was black shorts and a white blouse, with her hair tied up in a twist.
“Are you going to tap dance for us?” Segall joked. Buzzo cracked up.
Another stylist, Gordon Gallego, arrived to have his own hair cut by Buzzo before his first customer walked in. Just as doctors make difficult patients, hair stylists can have a hard time sitting in the chair passively, and Gallego and Buzzo always turned their session into a good-natured battle royale. She loved doing his hair “her way,” Gallego would remember at Buzzo’s memorial service. “It was always an event,” Segall added.
Gradually Salon Meritage settled into its Wednesday morning routine. Paul Wilson, husband of Meritage manicurist Christy Lynne Wilson, came by for a 10:30 a.m. haircut with Gallego. Meritage owner Randy Fannin and his wife, Sandy, brought in some supplies for the shop. The salon’s regular customers began strolling in for their appointments.
Hattie Stretz of Los Alamitos, a lively presence at age 73, arrived to have her nails done by her daughter, newlywed Laura Webb Elody. Stretz was popular with the other stylists and often brought homemade pies to the shop.
Fournier came in next, offering her coworkers half a lemon cake with cheese cream frosting, a leftover from a treat she had baked for her adult son, Chad. Fournier was popular at the salon, the kind of stylist customers came back to see year in and year out. “She could gab away. She was one of those girlfriends you could never get enough of,” recalled salon client Kari Salveson. She had been coming to have Fournier do her hair for a decade and had a simple explanation for that loyalty: “She made you smile and she made you laugh.”
Fournier’s friends and coworkers knew all about her troubles with her ex-husband. They had been married only three years after a whirlwind romance. They had been great as boyfriend-girlfriend, one friend observed, but terrible as husband-wife. Fournier left him in 2006, before his crippling accident in 2007. It was Dekraai who filed for divorce. Since then, he had come by the salon more than once to fight with her right in front of the staff and customers. She had complained of his “manic” desire to control every aspect and minute of Dominic’s life.
The salon workers made for a close-knit group, like an extended family, and the other stylists did not care for Dekraai. Buzzo once shoved him out the door. That Wednesday, Fournier told her colleagues that her ex-husband had asked her to meet him for coffee. “Can you believe that?” she marveled.
“I hope you said ‘no,’” Gallego responded. “You shouldn’t be meeting that guy anywhere.”
As lunchtime approached, customers left the salon and others arrived. Seal Beach youth soccer volunteer Michele Fast had to cut short a phone call with her mother so she could make her haircut appointment at Meritage. A mother of three, Fast was well-known and well-liked in The Hill area of Seal Beach, where the 47-year-old could be seen every day on her brisk walks through the neighborhood with her Labrador. This would be her first time patronizing Salon Meritage.
Hattie Stretz, meanwhile, decided to linger at the salon, extending her nail work into a hairdo. While her daughter Laura did the styling, Stretz chatted with her salon favorite, Buzzo. Those two always chattered together like old friends. Manicurist Christy Wilson then decided to take advantage of a lull to slip into Fournier’s chair for a wash and cut.
Sometime around 1 p.m. Segall’s last client of the day canceled. He had planned to stay all afternoon, but now could cut loose, yet another fateful decision that day. “The weather is beautiful,” he announced. “I’m going to enjoy it.” He heard laughter as he walked out the door – the mood at Salon Meritage was frequently joyful.
“See you tomorrow, buddy,” salon owner Fannin called after him, because that’s what he always said in farewell.
About 15 minutes later, at 1:21 p.m., a balding, hulking, overweight man wearing a bulletproof vest walked into the salon. Scott Dekraai came armed with three powerful handguns – a 9 mm Springfield, a Smith & Wesson .44 Magnum, and a Heckler & Koch .45 – and plenty of ammunition stuffed in the pockets of his cargo pants.
It would be over in two minutes.
Hold on a minute, Scott. Please don’t do this.
Scott Dekraai had stopped halfway between Huntington and Seal Beach that day, pulling over at the windswept expanse of Bolsa Chica State Beach to sit on the sand in his bulletproof vest and think about killing his ex-wife. It didn’t take him long to decide.
When he burst into the salon with guns in hand, Dekraai strode, limping but fast, right up to Fournier. The rest of the people in the room – stylists holding brushes and scissors, customers swaddled with smocks in their chairs – froze in surprise. Randy Fannin broke the spell first. The devoted grandfather, active and vigorous at age 62, a man who loved his work and his staff, which loved him right back, pleaded with Dekraai.
“Hold on a minute, Scott. Please don’t do this. There’s another way. Let’s go outside and talk.”
Fannin’s wife of 17 years, out of sight mixing dye in the back of the salon, heard it all. Sandy Fannin heard her husband’s plea, and she heard what happened a heartbeat later: Dekraai opened fire. A seemingly endless series of loud, jolting pops followed as Sandy stayed under cover and the salon filled with screams. When a lull in the gunfire finally came, Sandy started to emerge to check on her Randy, but then the shooting resumed. Dekraai had been reloading. There were several pauses before silence fell for good.
Dekraai killed Fournier first, shooting his ex-wife in the head and chest without a word.
Christy Wilson died in Fournier’s chair moments later. The 47-year-old stylist and mother of three had testified against Dekraai in the custody case. He shot her two times. Her husband Paul, who had come and gone earlier that day at the salon, would later find a letter at home from the woman he called his soulmate: “I went into work late today, so I sat outside thinking about how lucky I am, how lucky we are to have our house, our kids and each other. I love you every day, good, bad and ugly. We are each other’s worlds. We have to keep our love strong and have the lifetime together we promised each other, for better or for worse, for richer or for poorer until death do us part.”
As Dekraai turned from his second victim, Fannin, scissors in hand, moved toward him. Whether he was still trying to calm Dekraai or hoped to stop him with the only weapon at hand, no one can say for sure. Dekraai shot him at point-blank range. Those who knew him aren’t surprised that the salon owner tried to intervene. “He was the most peaceful man. He truly believed in the best of everybody,” recalled stylist Lorraine Bruyelle, who was supposed to have been there at the time with her kindergartner daughter. But she had been delayed when her little girl said she was hungry after school, and they had stopped for a second lunch. By the time they arrived at the salon, an officer blocked the door. “Everybody is dead in there,” she recalls him saying.
After killing Fannin, Dekraai strode through the salon shooting others as he passed. He shot and killed Laura Webb Elody, then turned his gun on her mother, Hattie Stretz, as she sat in her daughter’s chair. First-time customer Michelle Fast, who had been in such a rush to get there, was shot in the chest. So was Victoria Buzzo in her “tap dance” outfit. Finally Dekraai shot and killed 65-year-old Lucia Kondas of Huntington Beach, the retired administrator of the Orange County Health Care Agency’s Alcohol and Drug Abuse Services, whose funeral a few days later would be packed with mourners she had helped in life.
Dekraai shot most of his victims multiple times, in the head and chest – where the damage, and the likelihood of death, would be greatest.
There were as many as eight other men and women inside the salon during Scott Dekraai’s rampage. Several survived by running outside. Three people locked themselves in a facial room and remained silent, though one of them made a whispered call to 911, begging for help as her friends screamed and died. Two others hid in the bathroom. One stylist threw himself onto the floor with the dead and dying, covered his head with his hands and hoped the killer would bypass him. He did. When the shooting finally stopped and he heard the sound of someone leaving the salon, he reached for his phone to call for help, joining what by then had become a chorus of 911 calls from in and around the salon.
Outside, Dekraai wasn’t through shooting yet. As he walked to his truck in the parking lot, he noticed a green Land Rover sitting nearby, a neatly dressed, tough-looking man poised behind the wheel. To Dekraai, he looked like an off-duty or undercover cop. Fearing the man might be reaching to the floorboards for a weapon, Dekraai aimed through the closed passenger window and shot the man in the face.
Seal Beach resident David Caouette, a 64-year-old former Navy SEAL, may have looked the part of a police officer, but he was a car salesman who worked for a Land Rover dealership in Mission Viejo. He had just stopped at the shopping center for a bite at his favorite restaurant, Patty’s Place, next to Salon Meritage. And so Caouette, in the wrong place at the wrong time, became the eighth person to be killed that day by Scott Dekraai in the worst mass murder in Orange County history.
As Dekraai continued walking to his truck, face impassive, a pistol still in hand and pointed toward the sky, four men ran over from across the street. They were contractors who had been working on an oil clean-up site nearby and, rather remarkably, when they heard the gunfire they had run toward the sound. Two were retired Marines, schooled in combat. Another was a certified emergency medical technician.
The group’s leader, Doug Childers, reacted more on instinct than common sense, he’d later say. But then Dekraai spotted the advancing men and turned to face them, his gun still pointed up.
“He looked right at me,” Childers would recall. “Then he pointed it at me.”
The four men slowed to a walk. But they kept moving in, one of them barking Dekraai’s description into a cellphone to a police dispatcher. After a moment’s hesitation, Dekraai turned and walked away from the men and the area near the salon.
“He was walking casually,” another of the contractors, Michael Sauerwein, marveled afterward. “As if he was just walking down the street.”
Childers, who had worked eight years as a firefighter at the now-shuttered El Toro Marine Corps Air Station, raced to the salon door, followed by John Gallegos and EMT Brendan Peña. Sauerwein stationed himself near the door to the salon where he could keep an eye on the gunman, watching as Dekraai climbed into a shiny white Toyota Tundra pickup truck and drove off.
As the three men entered the salon, none were prepared for the scene awaiting them. Gallegos, a combat veteran with 22 years in the Marines, was shaken to the core by what he could describe only as an “ambush.”
“In combat, you’re either going to get shot or shoot somebody,” he would later explain. “Here these guys had no expectation of any of that. They had plans. They had plans! They had lives to live. … They were civilians. They were supposed to go home.”
• • •
When the sound of shooting had ended and the salon fell silent, Sandy Fannin was the first to emerge from hiding. The salon smells of shampoo and hair dye had been replaced by the gunpowder stink of cordite. Gun smoke hung in the air. Bodies and blood were everywhere. But she had eyes only for her husband sprawled on the floor. She fell on top of him and began giving the man she loved mouth-to-mouth resuscitation.
Childers, at the door, surveyed the bodies and blood and saw no movement at first, heard no sound. He called out, “I’m here to help,” and after a moment, the other survivors emerged from their hiding places.
The three contractors began performing triage. Childers first tried to aid Laura Webb Elody, but she didn’t respond. Then he turned to her mother, Hattie Stretz, the oldest of the victims, and he saw she could be saved. Michele Fast, more grievously injured, still had a pulse as well. The others who had been gunned down in the salon were dead and beyond help. One of the rescuers saw Sandy Fannin working on her husband and told her that it was too late, that he was gone, but she still kept trying to breathe life back into Randy. When she finally stopped, she simply sat there amid the carnage and bustle and just held him.
Within minutes, police officers, firefighters and paramedics swarmed the scene. A homeless man pointed out the slumped, bleeding form of a man in his Land Rover, overlooked in the rush to aid the victims inside the salon. David Caouette still clung to life. Ambulances raced him, Fast and Stretz to Long Beach Memorial Medical Center. But Caouette and Fast would be pronounced dead within hours. Stretz, though in critical condition, would recover.
The lookout Sauerwein, meanwhile, gave the first police officer to arrive at the salon a description of Dekraai, his truck, and the direction the killer took when he drove away. Many months later, in a ceremony to honor the four men who risked their lives to help save others, the Seal Beach police chief would credit Sauerwein’s timely information with leading to Dekraai’s arrest within minutes of the shooting.
Outside Salon Meritage, amid the barely controlled chaos of a combined crime scene investigation and trauma rescue, Sauerwein and a gaggle of other witnesses pointed at a white pickup truck driving slowly away from the back exit of the shopping center. Incredibly, Dekraai was still in sight.
A few blocks away, less than 10 minutes after the first shot rang out, a Seal Beach patrol officer, his overhead lights flashing, pulled over Dekraai. Ordered to step out of the pickup, Dekraai calmly complied, leaving his weapons and ammo in the truck, except for three leftover magazines and some loose live rounds still in his pockets.
As the officer patted him down, then placed the suspect’s hands in brown paper bags to preserve evidence of gunshot residue, Dekraai said, “I know what I did.”
A short time later, in an interview with Seal Beach Police Detective Gary Krogman, Dekraai admitted everything, from his phone call that morning, to his contemplation of murder while sitting at the beach, to his apparent motive: a desire for retribution for his ex-wife’s behavior and victories during the custody battle. He told the detective how he had targeted his ex-wife first, then the stylist who had testified against him, then the salon owner with his scissors in hand. As he confessed, Dekraai used their first names. (Search warrant)
As for the other victims in the salon, Dekraai admitted that he just killed the rest at random. He offered an explanation of sorts to the detective for this: He simply viewed the bulk of his victims as “collateral damage.”
What kind of sick, twisted fatherly love might that be?”
By Thursday night, flowers were piled up like a crashing sea wave against the west wall of Salon Meritage, and hundreds of people had assembled there for a candlelight vigil. Friends, relatives, neighbors, youth sports teams, salon customers, even some of the good Samaritan contractors who rushed in to help – all came to pray and hug and bid farewell to the fallen. Photos were posted on the salon walls, accompanied by notes scrawled on a huge sheet of craft paper someone tacked up above the bouquets. More messages in chalk adorned the side door of the salon: “Good-bye Randy” and “RIP Friend.”
The mourners had come to comfort and be comforted, but also to seek ways to help. The local fundraising had already started, on social media and in person, in time reaching $150,000 to support the families who needed help after losing a loved one at the salon. Many in town worried about the schoolboy virtually orphaned by the massacre – his mother dead, his father jailed, likely for good. Dominic had sat for hours at McGaugh Elementary, wondering why no one had come to pick him up, until finally the police arrived with terrible news.
The gathering outside the salon was for him, and for all the others now bereft, because that, as any local could tell you, is the Seal Beach way. Here small town virtue has somehow survived tucked inside the continuous urban sprawl that is Southern California, and it shows itself most in times of great sorrow and need. “Mayberry by the Sea,” the town has been called, though not often by its residents, for this is sometimes dished as a backhanded compliment with a side of snark. But Aunt Bee and the other country folk of that fictional, idyllic, black-and-white TV setting for “The Andy Griffith Show” could have learned something about the bonds of community and caring on display outside Salon Meritage this night.
The warm glow of hundreds of hand-carried candles lit the scene with a wrenching beauty, the faces and tears of grieving men, women and children awash in the flickering golden light. City leaders spoke words of grief and support, and people flashed peace signs and dutifully applauded in response, but it was a teenager whose eloquent words moved the crowd most.
“This tragedy will not define this city. Everyone here tonight defines this city,” proclaimed college freshmen Jake Tellkamp, who had organized the vigil with a Facebook post that went viral. “I don’t want this town to be marred by this monstrosity. We will love one another like family, because there are no strangers in this town.”
The next day, District Attorney Tony Rackauckas, Orange County’s most powerful law-enforcement official, drove to Seal Beach. He had called a news conference to tell the community – and the national media – what investigators had learned, and what would happen next now that Dekraai was in jail.
At first the D.A. was all business, vowing what prosecutors always vow in the face of monstrous violence: He would seek the death penalty for the killer. Indeed, he would seek eight sentences of death, he promised, so that none of the dead would be forgotten, no victim of what he called Dekraai’s sick and indiscriminate “revenge” left out. This was the businesslike portion of the news conference, expected and by the numbers.
Then the mood changed. The D.A. began speaking of the scene inside the salon and of how each of the victims perished. He named each one in turn and gave their ages. As he spoke, their smiling pictures appeared on a screen to his left. His voice grew unsteady and halting as the litany of lives cut short went on and on. When he turned to the subject of the killer’s child, his composure fled him entirely.
“While Dekraai rampaged through a salon shooting at innocent victims, the son that he professed to love was sitting in the principal’s office waiting for his mom or dad to pick him up.” At that point Rackauckas stopped and looked down at his podium, eyes wet. He had to swallow hard several times before he could resume in a shaky voice. Even the most cynical journalists in the room could see this was not lawyerly posturing or theatrics for the 6 o’clock news. Rackauckas had his own troubled childhood behind him and had been a social worker before beginning his career in the law. Now he wore the same hollow expression of grief that had been so prevalent at the nighttime vigil 12 hours earlier. The only thing missing was the candle.
When he finally mastered his feelings, the district attorney said: “That little boy is a victim now. His mother has been murdered. And he has to grow up knowing that his dad is a mass murderer. … So what kind of sick, twisted fatherly love might that be?”
This raw display of emotion would all be mostly lost on the nightly news. The broadcast distillation of long comments into staccato sound bites leaves little room for nuance. When his remarks shifted back to the killer, the note of compassion left the D.A.’s voice and he was all business again. He explained how he had dispensed with the normal capital case review, in which a committee of senior prosecutors ponders the evidence and the law then decides whether a death sentence or life in prison should be sought. Instead, Rackauckas had decided to make the call himself, bypassing such a review as an unnecessary delay.
“There are some cases that are so depraved, so callous, so malignant that there is only one punishment that might have any chance of fitting the crime. … This is the only way our society can have anything approaching justice.”
He vowed again that he would see Dekraai convicted and sentenced to die for what he had done.
• • •
Politicians promise things all the time, whether they have the power to make those vows come true or not. In the case of the most sensational and terrible crime in his jurisdiction in many years, District Attorney Tony Rackauckas appeared to have everything he needed to keep that promise, and then some.
Indeed, by the time of that news conference in Seal Beach, the People of the State of California v. Scott Evan Dekraai had become what lawyers call a “slam dunk” – a case as likely to end in prosecutorial victory as Kobe Bryant in his prime was likely to score when he held the ball above the rim.
Few big cases are put together so quickly and completely as this one. There was no painstaking canvassing for witnesses. No mystery about who did what. No fears that a suspect had not been read his Miranda rights or that he had been coerced into confession. Just the opposite. Within hours of the murders, investigators had more than a dozen witnesses inside and outside the hair salon who had identified Dekraai as the gunman. They had weapons registered to him used in eight killings and one wounding – weapons found with him in his truck moments after the crime. Bullets of the same type used in the murders were found stuffed in his pockets. They had gunshot residue on his hands, witnesses to swear he had previously threatened his ex-wife and a prior record of violence. His own stepfather had gotten a restraining order against him, a quick check of court records had revealed. There was even a motive: Dekraai’s anger and desire for revenge over the custody battle for his son, his many claims that Michelle Fournier was an unfit parent, that she barraged him with harassing phone calls. He had grilled his son about his ex-wife’s behavior so hard that he would burst into tears. “If you are crying, you’re lying,” the father told him.
And still there was more. Dekraai had confessed. Calmly, voluntarily, having been read his rights, Dekraai admitted his crimes. He had proclaimed, moments after his arrest, that he knew what he had done.
There were signs of premeditated murder, established through both his actions and his admissions. He had taken pains to assemble his arsenal, armored himself against gunshots, then paused in his 20-minute drive from his home to the salon to sit on the beach and think about killing his ex-wife. California law holds that premeditation can occur mere moments before the crime, consisting simply of deciding to kill before pulling the trigger. Just a second of reflection is all that’s needed to satisfy the legal requirement of premeditated, or first-degree, murder. But this legal concept can be hard for lay people on juries to accept, because it still seems sudden and impulsive to them. In the Dekraai case, though, the premeditation leading up to the bloodbath at Salon Meritage occurred as Hollywood portrays it in film: It happened miles and hours in advance of the crime, cold and calculated.
In short, the evidence against Dekraai after 48 hours appeared as good as it gets for the prosecution in a murder case, and as hopeless as it could be for whatever defense attorney inherited the most hated man in Orange County as a client.
And yet, out of the public view, prosecutors were afraid that their quarry would elude justice.
It had happened before.
The authorities did not play by these rules.
In 1976, another mass murderer had struck in Orange County, a crime as shocking and reviled in its day as the Salon Meritage massacre is today. Indeed, until Scott Dekraai came along, the seven people shot to death during a rampage at Cal State Fullerton had been the worst case of mass murder in county history.
The culprit in that case, Edward James Allaway, now 76, avoided a murder conviction because he was diagnosed as a delusional paranoid schizophrenic. It is fair to say that prosecutors generally abhor the insanity defense, which they usually attack in court as a ploy and a dodge of responsibility. In Allaway’s case, multiple medical experts agreed that he was insane at the time of his crimes.
A custodian at the Fullerton campus library, Allaway had delusions that led him to conclude that people at the university had been forcing his estranged wife (who left him after he allegedly assaulted and raped her) to perform in pornographic movies. With a semi-automatic rifle he bought at a local Kmart, he moved through the library lobby and basement media room systematically killing six library workers and a professor emeritus, and wounding two other staff members. Then he drove to a hotel in Anaheim where his wife worked, phoned the police and said, “I went berserk at Cal State Fullerton, and I committed some terrible act. I’d appreciate it if you people would come down and pick me up. I’m unarmed, and I’m giving myself up to you.”
The Orange County jurors who heard his case found he had committed the murders, but deadlocked on the question of his mental state during the sanity phase of the trial. The prosecution and defense agreed that the judge hearing the case should make the determination instead of a retrial. Superior Court Judge Robert Kneeland – who had occupied Rackuackas’ office as district attorney before he was appointed to the bench – found Allaway not guilty by reason of insanity. By law, people who are so delusional that they cannot understand the nature of their actions or that what they have done is wrong cannot be convicted – a legal principle dating back to an insane man’s attempt to assassinate the prime minster of Britain in 1843. Such people, however, can be committed to mental treatment as a danger to others, which Judge Kneeland did, predicting that Allaway likely never would be cured or released.
Allaway has been held and treated in secure state mental hospitals ever since. Despite the judge’s prediction, his doctors have proclaimed Allaway cured repeatedly during the last 15 of the 40 years he’s been locked away. They recommended that he be moved to a community setting. The Orange County district attorney’s determined opposition, both in court and through lobbying in Sacramento, has blocked Allaway’s release. He is legally entitled to try for freedom again every year, and his efforts to be freed have kept the case fresh in the minds of prosecutors, a constant, nagging fear.
Now the fear that history could repeat itself colored the Dekraai investigation. True, insanity is rarely invoked as a criminal defense and is even more rarely successful (used in less than 1 percent of cases and failing three out of four times it’s tried). And California law has changed since Allaway’s trial, making the insanity defense more difficult to mount. Yet, as strong as the factual, physical and eyewitness evidence seemed to be against Dekraai – just as it had been against Allaway – the possibility of an insanity defense haunted the case from the start.
Dekraai’s ex-wife had stated in court documents that he was bipolar. He had a diagnosis of post-traumatic stress disorder stemming from his 2007 tugboat accident, when a metal cable killed a fellow crewman and nearly severed one of Dekraai’s legs. And in his first appearance in court, Dekraai’s lawyer complained that jailers had failed to provide the anti-psychotic drugs that had previously been prescribed for him. As courtroom spectators jeered and shouted, “I hate you!” at the defendant garbed in his mustard-yellow jail outfit, his attorney said he needed Topamax, a drug prescribed for seizures and migraines, and trazodone, used to treat depression. The lawyer also wanted Dekraai to have access to a spinal-cord stimulator he needed for the injuries that still plagued him from the 2007 accident.
Prosecutors saw this as laying the groundwork for an insanity defense intended to explain away Dekraai’s actions as the product of delusion and disease. Rackauckas said after the hearing that he would not be surprised by such a move. At his Seal Beach news conference, the district attorney already seemed to be anticipating this, urging the public not even to try to find an explanation for Dekraai’s actions.
“When good people see evil they try to reconcile why a person would do such an incomprehensible thing,” he said. “This mass murder … will never be understood.”
Rackauckas and his team were determined that Scott Dekraai would not go the same route as Edward Allaway. They wanted evidence to counter a possible insanity defense, clearing the path to a first-degree murder conviction and death sentence. They were certainly entitled, perhaps even obliged to do so. It was the way they went about gathering that evidence that would be the problem – not just for the Dekraai case, but for the entire Orange County justice system.
Mental illness does not in itself qualify as legal insanity, and prosecutors already had evidence about Dekraai’s mental state in hand. They could argue that his actions and words before, during and after the killings were the subject of rage, not delusion, and so distinct from the hallucinatory perceptions of a Charles Allaway. Dekraai’s words at the time of his arrest – “I know what I did” – could be interpreted as a refutation of the legal test for legal insanity. The expert witnesses – the legions of mind and brain physicians and scientists hired in such cases – would take it from there.
Based on national statistics, the odds were against a successful insanity plea. Dekraai and his legal team reached the same conclusion: He would never try to pursue an insanity defense. Instead, he would eventually plead guilty in May 2014 to eight counts of murder, leaving open only one question (for which his mental state would be only one factor to consider): Would he get life in prison without parole or a trip to death row?
In hindsight, then, all investigators and prosecutors had to do to ensure conviction and the speedy justice promised to the victims was to play by the rules and let the justice system take its course. From the point of view of Dekraai’s lawyer, there were two main rules that mattered. First, the authorities had to make sure all the relevant evidence in the case – especially evidence that helps Dekraai – got turned over to the defense. And the second rule was that Dekraai’s constitutional rights had to be protected, which meant he could not be interrogated in jail by the authorities – or by people working for them – once he had an attorney.
The authorities did not play by these rules.
One day after the district attorney’s stirring news conference, outside the view of the public and the TV cameras, sheriff’s deputies quietly moved Dekraai to a new location within the teeming Orange County Jail system: Cell No. 3 of Sector 17 in Module L, a psychiatric evaluation unit in the processing hub known as the Intake Release Center.
Informally, Tank 17 had become a “snitch tank,” a place where investigators hoped to glean incriminating statements from Dekraai. Rackauckas would later say it was a coincidence, but the first person to befriend this newcomer to the Darwinian culture of the corrections system was a professional informant working for police and prosecutors in an array of cases.
This Mexican Mafia gang leader had been busily informing on other inmates for some time, gathering evidence against them so he could reduce his own life sentence. Many cases got the secret snitch tank treatment over the years, and the Dekraai case followed the same basic script: Secretly, after Dekraai had retained his attorney, investigators began to tape as their informant coaxed Dekraai to open up. Then they failed to turn over key evidence to the defense for months. (Read Judge Goethals’ initial ruling)
The consequences of these tactics, once exposed by the dogged efforts of Dekraai’s attorney, would have the opposite effect than intended. Instead of making the Dekraai prosecution stronger, revelations about the snitch tank and the misconduct of law enforcement became the focus of the case, drawing such national news organizations as “60 Minutes” to town and eclipsing the story of the man who had killed so many. Then the prosecutions of other crimes were called into question – and in some cases were undone – by the unfolding scandal arising from how the justice system in Orange County used and covered up its system of jailhouse informants.
Meanwhile, the speedy justice Rackauckas had promised in that emotional news conference in Seal Beach has been delayed for years. As New Year’s 2016 arrives, the families and friends of the Salon Meritage victims remain in limbo and anguish, waiting for the case – and their lives – to move on.
They trusted me … They just kind of opened up.
Inside the Orange County Jail, the barracks and modules are crowded. Thick doors, concrete walls and floors, and ubiquitous security monitors create a forbidding environment. This is no accident. Prisoner movements are carefully controlled. Inmates wear color-coded wristbands to aid in segregating them into a kind of a tribal system based on risk and vulnerability – separating enemy and target, predator and prey. The goal is to limit violence.
First-time offenders, or “white banders,” typically are housed in large, open dormitories. Yellow-band inmates are repeat offenders, while members of orange- and red-band tribes are hardened career criminals, housed in high-security modules where they seldom leave their cells. An inmate earns a red band for attacking his captors.
A substantial number of inmates in lockup wear blue bands, signifying protective custody. This group includes gay inmates, high-profile or celebrity defendants, and prisoners known by other inmates to have worked previously as informants. All are likely prey in the violent criminal culture that rules the inner life of any lockup.
Scott Dekraai was two days shy of his 42nd birthday when he was transferred into Tank 17 with a blue band on his wrist and a target on his back, though he was not targeted for violence. He was a jackpot, a target for informants looking for an edge. Angry and classified as a “total sep” in protective custody – meaning he was to be totally separated from other prisoners for his and their protection – Dekraai could not even mingle in the large, open day rooms adjoining each double tier of cells. His status made him an outcast.
Still, the balding, 6-foot-1, 285-pound Dekraai fell into a fast and seemingly unlikely friendship with an inmate in the cell next to him. The two men exploited a well-used jailhouse communications device: talking back and forth through their sinks, letting the plumbing channel their voices.
Dekraai’s new friend was one Fernando Perez, a 30-year-old who was physically slight, just 5-foot-6 and unimposing, but nonetheless a rising figure in the leadership ranks of the feared Mexican Mafia gang. Perez admits to acts of violence that include making hit lists of people his gang should kill on sight and jumping on a man’s head, smashing it into the ground. “When you’re a gang member in prison, you have no choice,” he would later testify. “It’s either do or be done.”
But there was a third way: Working for the man. When he met Dekraai, Perez faced a third-strike charge of illegal possession of a firearm that could put him in prison for life. By then he was working virtually full time helping law enforcement collect information to bolster cases against dozens of defendants, from run-of-the-mill crooks to highly sought-after leaders of the Mexican Mafia. He took prolific and surprisingly literate notes daily, then passed them on to the officials who could make his life sentence go away.
So rather than shun or ignore the limping mass murderer in the next cell, Perez nurtured a rapport. He fetched water for Dekraai’s tea. He affectionately called him “buddy” and “brother.” And whatever else he said and did before the recordings began, Perez got Dekraai talking. He has a way of gaining inmates’ trust, he asserted much later during a hearing, when he insisted his technique boiled down to being a sympathetic listener who never stepped into unconstitutional territory by asking questions like a cop. “I don’t know what it is about me,” he said of his success in getting criminals to incriminate themselves. “They trusted me. … They just kind of opened up.”
On Oct. 18, 2011, one of the “special handling” deputies at the jail charged with monitoring information called the District Attorney’s Office. According to a slide presentation on the case prepared by prosecutors, the deputy said, “A guy in here (who has provided good info before) tells me that the Seal Beach shooter is bragging about the crime. … I think you’d be interested to hear what he has to say.”
The prosecutor who took the call reportedly replied, “What could it hurt to go take a listen?”
The next day, a week after Dekraai’s arrest, at 5:37 p.m., members of the Orange County Sheriff’s Department, which operates the jail system, began recording the dialogue between Perez and Dekraai. An instruction in the inmate records, filed nearly a week after Dekraai’s arrival in Tank 17, said he was not to be moved regardless of medical requests without the permission of special-handling deputies, who manage the informant network. That allowed the recording of about 130 hours of conversation.
According to the D.A.’s office, prosecutors instructed Perez “not to ask defendant questions about his case.” Dekraai’s attorney would later assert that this instruction was not followed.
By having Dekraai’s own words on tape, prosecutors and investigators hoped to avoid any suspicion that Perez was fabricating testimony about what he had heard in order to earn a break on his own case. Prosecutors planned to play the tapes for jurors without them ever seeing Perez. The tapes would “speak for themselves.” Defense lawyers do not like this scenario. They like to have the frequently unsavory informant live and in person, questioning them about their gang activities and crimes, and what they hope to gain out of tricking and betraying other inmates. Perez could be asked, for example, how he earned his gang moniker: Wicked.
None of the contents of those recorded conversations have been publicly disclosed, although prosecutors have said in court that they capture Dekraai making comments that seem to “brag” about the killings he committed.
Jailhouse informants are part of an uncomfortable symbiosis: prisoners serving the very people who lock them up, risking brutal retribution – even death – in aid of the enemy. Some live like kings behind bars. They break the code of the streets by offering up dirt on other inmates who are sometimes their friends. Yet it happens daily.
Desperate to get out, snitches find their treachery can earn them extra privileges, better treatment, lesser charges or reduced sentences for their own crimes, though this is rarely made explicit. That way informants can testify that they were promised nothing in exchange for their assistance, making it harder for their credibility to be assailed on the witness stand.
Contrary to common belief and Hollywood portrayals, snitches are rarely prisoners who just happen to overhear a confession. Jailhouse informants apply for the role, as if seeking employment. If a would-be informant gets the job, he’s logged into an informant database. In Orange County, informants are supposed to be assigned to no fewer than two handlers each, who guide their contacts with other inmates and receive their information dumps in the form of notes and reports.
Each informant must sign documents stating he is not a member of law enforcement and has not been promised any rewards in exchange for evidence he might collect, according to Lt. William Baker, who supervises the informant program for the Sheriff’s Department’s Special Investigations Bureau.
Despite such disclaimers, some informants serve again and again over weeks or months, essentially functioning as spies for law enforcement inside the jailhouse. Sometimes a snitch helps strategize the intelligence gathering. Others become prolific correspondents, filing dozens or even hundreds of pages of confidential notes – scrawled records in which the petty jealousies and political squabbles between inmates and gangs play out like never-ending crime dramas.
Usually those records remain hidden from the public, even as they help further police investigations and bolster criminal prosecutions. The Sheriff’s Department keeps most of its informant operation well-concealed, citing its responsibility to safeguard informants and their families from retribution – and to preserve its only means of penetrating the inner circle of criminal organizations, such as the notorious prison gang called the Mexican Mafia.
No one will say, for example, how many informants are housed among the nearly 6,000 inmates in the county’s five jails. Prisoners suspect, rightly or wrongly, that the number is substantial.
“It’s like they’re breeding them here,” said David Neal, who was housed at the Intake Release Center where Dekraai and Perez had their encounters. Neal, who was defending himself against charges of carjacking and robbery, said of the snitches, “They are everywhere, dude.”
Snitches can deliver big results. Informants working out of the Orange County jail system played a critical role in two big gang busts by a federal-local task force that targeted the Mexican Mafia – a task force that employed Perez. The first bust, codenamed Operation Black Flag, broke three months before Dekraai arrived at the jail and led to the indictments of almost 100 alleged gang members, including two suspected kingpins fighting for control of the Mexican Mafia in Orange County. They were undone by the seizure of a unique form of jailhouse communication called the kite – thin strips of paper crinkled up tinier than cigarette butts and smuggled from cell to cell. The second big bust two years later, Operation Smokin’ Aces, led to the indictment of 129 more gang defendants on charges of murder, assault, extortion and racketeering.
Informants have always been around, for they can go places, hear things, and penetrate the inner sanctums of crime in a way no cop, uniformed or undercover, ever can. But in Orange County, snitches have become part of the fabric of the justice system, not merely haphazard and opportunistic rogue elements, but as an orderly, tracked, secret workforce prowling the jail with very specific targets in mind. Oscar Moriel, for example, started informing in the jails in 2009 and was a key figure in both the big Mexican Mafia operations. He wanted to get out of a life sentence for his own crimes. Over time, Moriel stopped being a mere conduit of information and started directing investigations. When targeting one murder defendant, Moriel suggested they be put in a disciplinary isolation unit next to each other so they could bond as fellow troublemakers. With another inmate in for murder, the snitch suggested phony paperwork be crafted that depicted Moriel as a problem inmate who had assaulted jail guards. When his target saw that, any suspicion that Moriel might be a snitch would evaporate, the informant suggested.
The motivations of informants vary. “Sometimes it’s revenge. Sometimes it’s somebody that’s scorned,” says Santa Ana Police Chief Carlos Rojas, whose department was part of the gang task force. “Sometimes they might want consideration based on criminal charges they’re facing. Sometimes it could be money. Any motivation that a human being could want … could be in that spectrum.”
The word “consideration” is key in the informant trade. Less than a promise and never formalized as a contract, it is nonetheless the coin of the realm in the snitch tank. An informant who delivers can expect extra consideration when his case is reviewed or cells are assigned or work details are organized. Consideration is, for lack of a better word, the jailhouse custom. The snitches know it will come, because without it, the informant army would desert. Yet the setup provides sufficient cover to allow both law enforcement and their informants to say that no promises were made and no deals were cut. Informants on the street often want police to give them money – sometimes thousands of dollars. In the jailhouse, some snitches command special consideration – cable TV, special deliveries of Del Taco – but the primary objective is always freedom.
That was the “consideration” that drove Fernando “Wicked” Perez to chat up Dekraai through the plumbing in the snitch tank.
It was the district attorney’s misfortune that the assistant public defender who inherited Dekraai as a client a few weeks after the Seal Beach shooting also happened to represent another notorious murder defendant facing trial in Orange County. To the attorney’s surprise, he found that the same prolific informant popped up in both cases.
And that’s when Assistant Public Defender Scott Sanders began to dig.
No way could that be a coincidence.
When Assistant Public Defender Scott Sanders took on representation of the worst mass murderer in Orange County history, it didn’t take long for him to conclude that he had a loser of a case on his hands.
Despite the years he would ultimately devote to Scott Dekraai, Sanders harbored no illusions on the question of guilt or innocence. Such is the lot of public defenders. Most of their clients are found guilty. Indeed, most of them plead guilty, usually in exchange for some measure of leniency.
Such dealmaking is the vital lubricant that keeps the justice system from screeching to a halt, as would happen if everyone demanded a full-blown jury trial. In California, only 3 percent of felony cases end up in front of juries; in Orange County, that figure is 2.4 percent. And still the courts are crowded and backlogged.
Not that this meant Sanders had little to do in the case against Dekraai, who admitted killing eight people at a Seal Beach salon. On the contrary: Sanders set out to fight fiercely over the one issue in this case that he could contest: the sentence. Prosecutors count convictions as victories. And while public defenders prize their occasional acquittals, they also celebrate life sentences in capital cases, even those without possibility of parole. Life trumps death in the high-stakes battlefield of a murder case, especially when the D.A. himself has staked his reputation on it.
There are two ways to stave off a death sentence. The usual method relies on garnering sympathy from jurors by focusing on the killer’s redeeming qualities (if there are any), usually coupled with some compelling social or psychological explanation for what he or she did.
The second way is to put the government on trial.
While prosecutors and investigators used a jailhouse informant in the hope of countering an anticipated insanity “explanation” for Dekraai’s terrible choice on Oct. 12, 2011, Sanders focused on the story behind the informant.
For that, he needed the government to turn over the information it had gathered in its investigation. This has been required ever since prosecutors in Maryland hid evidence that a convicted murder by the name of John L. Brady hadn’t actually committed the murder. This sufficiently outraged the U.S. Supreme Court in 1964 to instruct all prosecutors everywhere that in future, they were obliged to turn over all helpful evidence to defendants. These disclosures are now universally referred to as “Brady materials,” and judges have the authority to punish prosecutors and even free defendants when there are major violations. Brady materials are supposed to appear automatically.
In Dekraai’s case, getting hold of them seemed more like pulling teeth. A few at a time.
The first round of police reports and other Brady materials were tantalizing, revealing that there had been extensive and incriminating recordings of Dekraai made in jail while he talked with another inmate in the days after his arrest. The other prisoner was identified only as “Inmate F.”
Then the entire recordings – 130 hours of them from inside Dekraai’s bugged cell – eventually arrived at Sanders’ office in April 2012. Inmate F remained anonymous still. The position of the D.A.’s Office was that it had no obligation to supply that information – the informant’s safety took precedence. Prosecutors had no plans to call him as a witness, they said. Dekraai’s voice on the tapes would speak for itself.
The breakthrough came in the summer of 2012, when Sanders figured out the identity of Inmate F. According to training materials provided by the D.A.’s Office, one of the tapes prosecutors turned over to Sanders – a recording of their initial interview with Inmate F – had not been fully purged of identifying information. It contained the informant’s booking number and name: the Mexican Mafia leader Fernando Perez.
Sanders soon realized Inmate F also was the government’s informant against another of his clients: high-profile murder defendant Daniel Wozniak, a community theater actor accused of killing two people and dismembering one of them, part of an elaborate scheme to steal money to finance his upcoming marriage. Here was yet another case heavily weighted in the prosecution’s favor with extensive evidence against Wozniak and, like Dekraai, a confession to police. Yet a jailhouse informant was involved – the same informant.
No way could that be a coincidence, the lawyer decided. A professional informant had been at work on both of his cases, something that should have been disclosed right away. Instead, a judge noted, the public defender had received assurances from a senior prosecutor that no deal had been cut with Inmate F in exchange for his snitch work. Now Sanders felt certain that was untrue (and, the evidence would later show, he was right about that). (Read Judge Goethals’ ruling)
Sanders demanded everything prosecutors had on Perez – his record, his casework, all his snitch notes – everything. The D.A. refused. But the judge hearing the Dekraai case ordered it turned over.
And in February 2013, 16 months after Dekraai’s arrest, a window was thrown open on the snitch tank that no other defense lawyer had ever looked through. Sanders received the information mother lode: 8,000 pages about Perez’s crimes, his casework, his deals, even the 300 pages of notes he had scribbled in jail while cajoling fellow criminals to confess. (Read one of Perez’s notes)
“He literally wrote down stuff every day,” Sanders later marveled. “He was working off his life case.”
From the day the mother lode arrived until January 2014, almost a year later, those documents became Sanders’ life – “pretty much all I did … for every waking moment,” he said.
The system wants to crank through the next case and the next person and Scott won’t let it happen.
With his wire-rim glasses and trim, ever-so-slightly graying beard, the man who would shake the Orange County legal system to its bedrock most resembles the math whiz who knew every answer back in high school. Scott Sanders can be charming, even funny on his own time, or so his friends say, but his public persona in court is strong-willed and tightly wound – measured, precise and intense.
Youthful at 48, Sanders wears his hair longish and rolls up the sleeves of his white dress shirts. He looks, one attorney said, like a defense lawyer from central casting. The exception to that rule would be his attire during the trudge from his office to the main courthouse in Santa Ana: he’s been known to sport an Indiana Jones-style expedition hat. Here, it seems, is a man unafraid to embrace the quixotic.
“The public defender usually gets steamrolled, and the most-liked public defender is the one who makes it easier for those around them,” said Case Barnett, a former colleague at the Public Defender’s Office now in private practice. “The system wants to crank through the next case and the next person and Scott won’t let it happen. …
“He doesn’t understand giving up. You do what’s right, no matter the circumstance. If the rules aren’t fought for, they are going to start disappearing.”
As a member of the felony unit at the Orange County Public Defender’s Office, where he has worked for 22 years, Sanders has emerged as a professional lightning rod in a way few others have dared. His ability – and willingness – to take on such epic cases stand out against the more typical burden of the public defender’s ranks.
The Orange County Public Defender’s Office, which has a budget of $72.6 million, handles some 79,000 cases a year with a staff of 211 attorneys. Criminal defendants are assigned to the office if they cannot afford to hire private counsel. Many are gang members, indigents and repeat offenders, and each of the PDs are expected to churn and deal their way through hundreds of cases a year. To them, Sanders has achieved something like folk hero status.
Prosecutors take a polar opposite view.
“He gets and deserves no respect,” said Mark Geller, a senior deputy district attorney who has been a target of Sanders’ sweeping accusations against prosecutors. “Scott Sanders shouldn’t even be a lawyer based on the tactics he’s engaged.”
On the other hand, Laura Fernandez, a senior fellow at Yale Law School who studies prosecutorial misconduct, finds it remarkable that Sanders’ revelations have surfaced through the work of a public defender, employed by the same county government that pays the prosecutors. “Many people have observed that what sets Orange County apart – aside from the profound, systemic and longstanding nature of the misconduct there – is the presence of an attorney and an office willing to take on the system they are part of.”
Others fear that Orange County is but the tip of a much larger national iceberg of prosecutorial misconduct no one has yet dared to challenge. “How many other places is this happening? How many innocent people might have been railroaded in this kind of system and it hasn’t been discovered?” asked David Greenwald, executive director of the People’s Vanguard of Davis, a nonprofit group that monitors the justice system.
Mindful of grieving loved ones, Sanders is careful to avoid thrusting himself into the limelight in a way that suggests a pursuit of personal glory or any other cause beyond making sure those who enforce the law are not permitted to be above the law. He’ll comment on legal aspects of the case, but he has refused to talk about his personal life and motivations.
What’s known about Sanders’ background boils down to name, rank and serial number: He grew up in the Chicago area, received an undergraduate degree at the University of Wisconsin and attended Emory University School of Law in Atlanta. He and his wife, Priscilla Monserrate-Sanders, co-founder of a Spanish-language program for youth, live in Long Beach. With his Chicago accent, he can be heard in the halls of the Public Defender’s Office holding court on whatever holds his passion at the moment, whether it’s the latest legal ruling or the most recent Chicago Bulls game (he’s an ardent fan).
Sanders’ close friend Dave Swanson, who met him in the 1990s while they were both attorneys working for the public defender, said he believes Sanders is motivated by neither fame nor career advancement. The professional skeptic is, in fact, an idealist, according to Swanson. What matters to him is the protection of the legal principles that shield ordinary citizens from the great power of prosecutors – a shield Sanders felt had grown far too thin in the Orange County justice system.
“He wants to see things done properly, legally,” Swanson said of Sanders’ work on the Dekraai case. “He wants justice. He wants fair play. He wants integrity. And I think he saw none of those things.”
In January 2014, Sanders filed a massive legal motion unlike any ever seen in the Orange County courthouse – 505 pages, accompanied by 15,000 pages of supporting exhibits, alleging that the Orange County Sheriff’s Department and District Attorney’s Office had systematically flouted the law and the Constitution for years by improperly using informants in jail and keeping evidence hidden from defendants.
Sanders hadn’t merely found a defense for a pair of clients. He had compiled allegations of informant abuses in many cases that he said revealed a pattern of official misconduct and lack of oversight of the police by prosecutors.
In a subsequent and even lengthier filing in the Wozniak murder case, Sanders alleged that the misconduct had gone on for decades, placing “a pro-prosecution thumb on the scale of justice” in Orange County.
The legal motions went into painstaking detail but the bottom line was this: When it came to its secret informant program, Sanders charged, prosecutors and the police agencies that worked under them had hidden the ball for many years. They had withheld evidence that could have helped in the defense of the accused. In the snitch tank, informants, acting as agents of the police, had interrogated defendants outside the presence of their lawyers, in violation of the law and the Constitution. Wrongful convictions had resulted, he claimed.
Fernando “Inmate F” Perez was merely exhibit one in a much larger story, according to Sanders, a story in which the Dekraai and Wozniak cases were just examples of professional informants “coincidentally” ending up locked up with inmates the authorities had targeted. The abuse would continue, the defense lawyer argued, unless the authorities in Orange County were forced to change their ways.
How to do that? Sanders called for an extreme solution: He petitioned to kick the D.A.’s Office off the Dekraai and Wozniak cases. And he argued that the misconduct was so great that the death penalty should be taken off the table.
It is fair to say that these sweeping allegations, not to mention the proposed remedies, were met with skepticism from public, media and justice system insiders alike. “Filled with untruths,” a senior official from the D.A.’s Office proclaimed with not-so thinly veiled contempt.
Most motions in criminal cases come in at fifty pages or less. Five hundred pages – “eye-bleeders” one prosecutor called them – are just asking for trouble, not least because most judges are unlikely to read them. The sweeping allegations had some hard evidence drawn from many different cases, but there was quite a bit of historical conjecture woven into the narrative as well. The original judge assigned to the Wozniak case, James Stotler, grew so frustrated with Sanders’ tactics that he removed himself from the case, no longer feeling capable of being fair to the lawyer or his client.
It all seemed so unbelievable, particularly with Dekraai and Wozniak – cases where no shenanigans appeared to be needed for prosecutors to secure convictions. Then the tide turned.
Bit by bit, Sanders’ charges began to gain traction in the Dekraai case. The Register began to investigate. So did other defense attorneys who began to wonder about the “coincidences” that had doomed their own clients. Prosecutors stopped making outright denials when facing off with Sanders, instead conceding that mistakes had been made on their end. Nothing on purpose. Just innocent errors, attributable to overwork, or misunderstanding of the law, or interference from the feds.
Then came an admission that prosecutors had failed to turn over some Brady materials in the Dekraai case – for months. Then the D.A. conceded Sanders’ claim that the informant’s conversations with Dekraai violated his constitutional rights. They voluntarily agreed they wouldn’t use the jailhouse recordings in trying to convict Dekraai. Even so, the D.A.’s position on the big picture remained unchanged. Prosecutors complained that Sanders had spun a few innocuous errors into some grand conspiracy that was completely untrue.
But the genie was out of the bottle then. In the months that followed, at least five other murder and attempted murder cases would unravel in Orange County due to problems Sanders had uncovered with informants and evidence disclosure. More cases, including some involving men on California’s death row, were being questioned.
A top official in the D.A.’s Office, after months battling a controversy that just wouldn’t go away but seemed, instead, to constantly gather steam, summed up his office’s opinion of Sanders’ most serious allegations with one word: “Baloney.”
That very same day, The New York Times called for a federal probe of the informant controversy in Orange County.
The real turning point, however, came through the rulings of one Orange County Superior Court jurist. Judge Thomas Goethals would initially give the D.A. the benefit of the doubt. But then new revelations surfaced after he had ruled in prosecutors’ favor. His follow-up ruling would be quite different.
He ate as any starving dog would.
Thomas M. Goethals is the rare jurist who has prosecuted a capital murder case, defended a murder case, and presided over a capital case as a judge. Goethals, a defense attorney before he was a judge and a prosecutor before he was a defender, helped convict two of Orange County’s most prolific serial killers – Rodney Alcala and Randy Kraft, each of whom is awaiting execution. As an Orange County deputy district attorney, Goethals ran the same homicide unit that would later prosecute Dekraai.
Trim and clean-cut, Goethals speaks with a voice both clear and emphatic. He and his wife, Patty, who met on a blind date while Goethals attended Loyola High School in Los Angeles, now live in Newport Beach. They have three grown children, including a son, Patrick, who is a lawyer in Long Beach.
Goethals is a physically active, outgoing person who at times is the life of the party, said his wife. “He’s always the loudest person in the house. He loves to laugh, loves to joke.”
This was not a temperament he had many opportunities to display in the Dekraai litigation. Sanders, perhaps unsurprisingly, has a tendency to try the patience of judges in Orange County, most of whom had been prosecutors themselves. But it was Goethals’ relationship with the D.A.’s Office that he once worked for and admired that was most sorely tested, particularly as his disappointment and alarm at its performance became increasingly evident through his rulings.
Unlike many others in the courthouse, Goethals took Sanders’ huge legal motion seriously and read it cover to cover. Then he scheduled months of evidentiary hearings in 2014, intent on probing Orange County law enforcement’s use of jailhouse informants and allegations that prosecutors failed to turn over evidence about them to defense lawyers. Much to the district attorney’s displeasure, the judge refused to limit the evidence to just specifics of the Dekraai case, instead hearing out lengthy testimony about informants and alleged Brady violations in other cases unrelated to the 2011 Salon Meritage shootings.
While this drama played out, Dekraai decided to plead guilty in April 2014 to eight murders and one attempted murder in Seal Beach. There was no deal, no offer of leniency – just an admission of responsibility for terrible crimes. Only a penalty trial remained after that to decide sentencing – unless Sanders succeeded in getting the death penalty scratched.
In August 2014, Goethals reached a decision, finding prosecutors had failed to turn over evidence that would have been helpful to Dekraai, and illegally questioned him via a jailhouse informant. But the judge found that this misconduct was the result of negligence, poor training and “lack of professional energy and strategic imagination.”
“The District Attorney’s well-documented failures in this case, although disappointing, even disheartening, to any interested member of this community, were negligent rather than malicious,” the judge concluded.
This was the single most important sentence in Goethals’ 12-page legal opinion. For Sanders, it meant the D.A.’s lapses fell short of the “outrageous” standard he had hoped to prove. County prosecutors would not be kicked off the case, and the death penalty would stay on the table.
District Attorney Tony Rackauckas said the ruling supported his belief that no one in his office committed intentional misconduct. He added that his prosecutors attended officewide training a month earlier to ensure they understand their legal obligations in the future.
This was a victory for the D.A. in result, but an embarrassment in most other respects. Goethals’ written opinion was in places scathing to the Orange County district attorney, openly questioning the credibility of several members of the prosecution team and deriding the district attorney’s excuses that their negligence was due to overwork, poor legal knowledge or interference from federal officials.
Everyone is overworked in the system and has to deal with other jurisdictions, the judge said, pointing out that the D.A.’s own training manuals warn prosecutors that the disclosure of Brady material is critical and must be overseen personally, diligently and completely. Yet when one senior prosecutor was confronted on the witness stand with the fact that he had disclosed four pages of material about an informant’s background in one criminal case, while providing 196 pages in another case, the prosecutor said he never noticed the discrepancy because he let a paralegal handle the task and had not checked. Goethals criticized this “cavalier” attitude as unacceptable and legally deficient. It ultimately would lead to a new trial for an accused murderer.
The judge reserved his harshest critique for attempts by prosecutors to divorce themselves from responsibility for the behavior of their informant, Perez. Goethals said they were not off the hook by asserting that they had instructed Perez to refrain from questioning Dekraai and to act as a “listening post” only. Goethals brushed off that explanation as “disingenuous.” Perez made it clear to all that he would “do anything” to elude life in prison, Goethals said, and the sheriff and district attorney should have known what would happen next: “He almost immediately engaged this defendant in conversations about his case, asking questions when he felt it was necessary. Perez was not merely a ‘listening post.’”
Goethals drew a harsh analogy: “The owner of a starving dog cannot evade liability for the dog’s destructive behavior inside a butcher shop by instructing that dog not to eat just before releasing him into the shop, knowing at the time that it is teeming with fresh cuts of prime beef. When released that dog is going to eat. … When Perez was ‘released’ near this defendant’s cell inside Mod L, he ate as any starving dog would.”
But on two key points – ones that might have tipped the scales into outrageous territory had Sanders won them – Goethals found the evidence supported prosecutors.
First, he agreed with Sanders that a prosecutor incorrectly stated early in the case that there was no leniency deal with Perez. But the judge disagreed that this was done deliberately. Instead the judge found that assurance had been made by a senior deputy D.A. who did not know the informant’s background at that time. Others in the office knew there was an arrangement with Perez in place, the judge found – the “consideration” that isn’t formally written down but that still constitutes an agreement. But the failure to communicate this to Sanders was a failure of “due diligence,” Goethals decided.
The other point – whether a larger conspiracy existed in the jail to place informants next to targets so they could be illegally interrogated – did not apply to Dekraai. Goethals determined Dekraai really had been placed next to Perez by coincidence, on the order of a triage nurse who had nothing to do with the informant program in the jail.
The judge did impose a sanction on the prosecution, however. He barred prosecutors from using any evidence gathered by the jailhouse snitch, even in the penalty phase of the trial. The D.A. had hoped to use the recordings to rebut any claims Dekraai made to avoid a death sentence. But the judge said no evidence obtained through misconduct would be permitted.
In declining Sanders’ request to kick the D.A. off the case, Goethals sounded a hopeful note: “On balance, this court has not lost confidence that the duly elected District Attorney of this county has the ability to competently and ethically complete the prosecution of this serious matter.”
That confidence would last less than seven months.
I’m confident he sleeps like a rock and his conscience is clear because he’s done the right thing.
What kind of guy is Tom Goethals? Here’s a story his wife tells: A devout man with a keen appreciation for history, he wrote to the White House so that his wife, a professional decorator and three-time cancer survivor, could help put up Christmas decorations there last fall. They traveled to Washington not long after he issued his first misconduct ruling in the Dekraai case.
At the White House, volunteers climbed ladders and strung garlands. After days of work, when spouses were invited to join a dinner with first lady Michelle Obama, Goethals delighted in roaming the halls and trying out couches where so many great leaders have sat. The portrait of Abraham Lincoln hanging in the State Dining Room particularly enthralled the judge.
“My husband is a Lincoln fanatic,” Patty Goethals said. Even the couple’s year-old grandson was named Lincoln. “Anything to do with Abraham Lincoln and the Civil War gives him so much joy. So he was just in heaven.”
Goethals, a Loyola Law School graduate who was appointed by then-Gov. Gray Davis in 2002 (he took the bench in January 2003), is a man of relatively diverse background. He spent a dozen years as a defense lawyer in private practice, and a dozen years before that as a lawyer in the Orange County District Attorney’s Office.
Growing up in Southern California, he played football in high school, spent summers body surfing and working as a driver on the Disneyland submarine ride, and took up water skiing, which he and his wife still like to do. He’s been a runner much of his life, taking part for 14 years in the annual law enforcement relay race through the desert heat from Baker to Las Vegas, a grueling trek that once melted his shoes. These days, the 63-year-old judge only jogs, Patty Goethals said. “He calls it shuffling. He needs both knees to be replaced. He’s putting off having his knees done.”
Were it not for his love of law, Goethals probably would have become a history professor, his wife said. But he chose to follow the career path of his father Richard, a noted civil attorney, and his older brother Rick, who practiced law in San Francisco.
“He has a photographic memory,” Patty Goethals said. “Tom can remember facts, details. We have a little ski boat we take out in the harbor – taking friends out on a cocktail cruise. He will talk to them about famous people who live on the bay, who ate at that restaurant, when that got built. He retains information so easily.”
Such a skill serves a judge well. Goethals’ reputation in the legal community suggests he was perceived as prepared, attentive, conservative and tough on certain types of crimes, particularly violent and drug-related cases.
But his reputation among prosecutors began to deteriorate as the Dekraai case wore on. In early 2014, around the time Goethals decided to hold extensive hearings on Sanders’ misconduct allegations, prosecutors began to “paper” the judge. That’s the slang term for invoking a provision of California law that gives defense and prosecution one opportunity each to request a different judicial assignment for their cases. Such requests are routine but rarely organized into the sort of campaign that Orange County prosecutors carried out. They began blanketing Goethals with paper, having him removed in 46 of 49 murder cases assigned to his courtroom between February 2014 and September 2015. In the four years prior, Goethals had been removed by prosecutors from only one case.
The county’s supervising felony judge, Richard King, declared the blanket papering had disrupted the flow of cases in the Orange County court system. King began denying the prosecution’s requests to remove Goethals from cases in December 2015 – a move the D.A. is now appealing as improper.
Goethals’ admirers have risen to his defense. Newport Beach attorney Kate Corrigan, former head of the Orange County Criminal Defense Bar Association, said prosecutors may be angry because they assumed Goethals would “rubber stamp” the results they wanted.
“Judge Goethals showed he takes his oath seriously,” Corrigan said. “He has an amazing moral compass … and he is not going to put up with constitutional violations of anyone’s rights, whether he’s a gang member or accused of capital murder. … I’m confident he sleeps like a rock and his conscience is clear because he’s done the right thing.”
Patty Goethals said it’s true – her husband sleeps soundly, though the intensity of the flak from the Dekraai case has troubled him.
“It was difficult at first,” she said. “Tom worked for the D.A.’s Office for many years and he loves the D.A.’s Office.”
• • •
In March 2015, Goethals was put in the uncomfortable position of having to reconsider his earlier ruling expressing confidence in the same office he loves.
Sanders had accumulated new evidence as thousands of pages of Brady material continued to trickle in long after they were supposed to have been turned over. One set of records proved to be a blockbuster, revealing the existence of a confidential inmate database at the Orange County Sheriff’s Department. This database contained detailed information on the movement of inmates in the jail, tracking where they were assigned by time, date, location and, in many cases, the reasons for the assignment. Called the TRED system, it provided, among other things, a guidebook to the movement and assignment of snitches in the jail, including evidence of whether a placement was purposeful or coincidental.
When questioned under oath during the first series of hearings on Sanders’ motion, two jail deputies – special handlers who work with informants and who have logged thousands of entries in the TRED system over the years – failed to mention that such database records exist. Instead, they testified that reconstructing the movement of inmates in years past would be impossible, according to Goethals. (Read Goethals’ ruling)
During the second round of hearings Goethals convened, the two deputies were pressed to explain why they remained silent about TRED. “That’s the way we were trained,” one of the deputies eventually responded.
If it is possible to detect fury in a typewritten judicial opinion, it is present in Goethals’ second ruling on Sanders’ misconduct pleadings. He found that the two deputies “have either intentionally lied or willfully withheld material evidence.”
“For this court’s current purposes, one is as bad as the other,” Goethals wrote. “The District Attorney is responsible for the actions of his agents. In this case, the evidence demonstrates that some of those agents have habitually ignored the law over an extended period of time to the detriment of this defendant.”
The judge contended that there was no direct evidence that the D.A. or his office participated in a cover-up. But the judge asserted that this “just aggravates the entire situation.”
“Someone has to be in charge of criminal investigations and prosecutions in Orange County,” he wrote. Yet, he said, the D.A. has been unwilling or unable to make sure police agencies under his direction follow the law and the rules. Evidence has stayed hidden for two years as a result, despite court orders, despite promises to do better, despite Supreme Court rulings and the Bill of Rights. And that, Goethals ruled, constitutes a conflict of interest.
“Certain aspects of the District Attorney’s performance in this case might be described as a comedy of errors,” Goethals concluded, “but for the fact that it has been so sadly deficient. There is nothing funny about that.”
Then he booted the D.A. off the Dekraai case and appointed the state Attorney General’s Office to pick up the pieces.
The legal community was shocked. The D.A. was outraged. The attorney general vowed to appeal. And families of Dekraai’s victims at Salon Meritage felt devastated.
“I very, very strongly disagree with the ruling and with much of what he had to say in his decision,” Rackauckas said. “I can’t tell you how hard our people are working trying to bring these issues to resolution. It’s very clear at this point that Judge Goethals has problems with our office. He said he’s lost trust in our office and that’s obviously a sad commentary, but I’m very much in disagreement with that point of view.”
Even as the D.A. said he disagreed with Goethals’ decision, however, Rackauckas conceded his office had made “missteps” and had been “negligent,” but had not deliberately done anything wrong.
“We should have done more to learn the history of the confidential informant that we were working with … in this case,” the D.A. said. “And frankly I think that’s the greatest mistake and a lot of things have resulted from that.”
He added: “It was a negligent mistake on our part, but we worked to correct it. It was not in bad faith.”
Sanders immediately accused the D.A. of mischaracterizing the facts. “Testimony and email presented at the hearing show it was not a lack of information about the informant, but a decision to hide that information,” he said.
Rackauckas said after the ruling that his heart went out to the shooting victims’ families, but this provided small comfort.
“My nightmare continues. I’m stunned, angry, frustrated,” said Paul Wilson, husband of victim Christy Wilson. “The fundamentals of the case is that he killed those eight people that day and he needs to pay for that, and now we’re going on three years and we’re starting all over again. I don’t understand it. There has to be a better answer.”
As if anticipating such sentiments, Goethals’ opinion suggests where the victims’ families ought to lay blame for the lack of resolution in the Dekraai case.
“The District Attorney’s conflict of interest is not imaginary. It apparently stems from his loyalty to his law enforcement partners at the expense of his other constitutional and statutory obligations. … This performance has deprived this defendant, the people of Orange County and especially the community of Seal Beach, of the timely resolution of this case which all parties deserved. And which should have, could have, and likely would have been achieved but for this performance.
“Justice delayed has resulted in the denial of justice to all concerned here.”
Scott Sanders had gotten everything he hoped for, except one thing: The death penalty was still on the table for Dekraai.
I don’t feel like you guys did your job … This is just like a slap to my face.
The revelations unleashed in Judge Goethals’ courtroom roiled the normally orderly world of the Orange County courthouse. Case after case that had been seemingly settled were being scrutinized because of the new information dug up by Sanders.
In the wake of revelations and rulings, both the district attorney and Sheriff Sandra Hutchens have announced extensive reviews, reforms and retraining intended to make sure the offices meet all their obligations to disclose information and protect the rights of defendants in jail from improper questioning. Past problems were inadvertent, Rackauckas maintained, but he was determined to correct them.
Rackauckas, an elected officeholder since 1998, has vowed to personally review all cases that involve snitches in the jail.
The sheriff has created a clearinghouse for dealing with case documents and subpoenas, with a sergeant at the jail Intake Release Center in charge. In the past, the process of finding and collecting all discovery materials for defense lawyers has been complicated by the vast number of cases, investigators and agencies working within the jail system, according to sheriff’s Lt. William Baker, who oversees the informant program.
Policies for dealing with other investigative agencies also have been tightened, both at the District Attorney’s Office and sheriff’s headquarters. In the past, investigators from other agencies could call up and ask jailers to introduce an informant to an inmate they had targeted. “We would facilitate this meeting,” Baker said.
Under the new rules, outside agencies must keep their own detective in the jailhouse throughout the operation, Baker said. Those detectives have to conduct debriefings and write reports, not the jailers. The first two police agencies that asked for assistance after the stricter protocols were adopted both chose not to pursue it, he said.
Lawyers in the District Attorney’s Office and virtually all of the sheriff’s nearly 2,000 sworn personnel are going through special training programs about informants and evidence. Assistant District Attorney Ebrahim Baytieh conducted a four-hour session for sheriff’s deputies this fall, hitting hard on themes of integrity and full disclosure and emphasizing the dangers of relying on informants.
Baytieh showed a “60 Minutes” segment about notorious jailhouse snitch Leslie Vernon White, who emerged during a similar scandal in Los Angeles in the 1990s. In the film clip, White admitted to pretending to be a homicide cop and making phone calls to police and prosecutors to gather facts about cases. He used the intelligence to make persuasive claims about overhearing confessions, all in a bid to negotiate lighter sentences for himself.
“It’s a marketplace,” a smirking White said on camera. “This is ‘Let’s Make a Deal.’ The only thing missing is Monty Hall.”
Informants are liars until proven otherwise. Their allegations must be corroborated. Defendants have a right to disclosure even if they don’t ask for it, Baytieh told the deputies. One missing piece of paper ended up requiring the retrial of a man who murdered a police officer in Garden Grove.
Baytieh showed slides of grisly crime scenes – an elderly man stabbed 83 times, a woman in her 80s who was raped, tortured and killed. Even when the crimes make you furious, when you know the accused is guilty, when you know he’s a monster who shouldn’t be back on the street, when you are feeling your most cynical about justice, you need to follow the law or you’re no better than the crook, Baytieh said.
“It doesn’t matter how angry we get,” he said. “We wear our white hats in every single case.”
But can the system correct itself without outside oversight? Alexandra Natapoff, a Loyola Law School professor, former federal public defender and author of the book “Snitching: Criminal Informants and the Erosion of American Justice,” worries that it cannot.
She points to the reaction of the D.A. to its informant scandal as a worrisome indicator: In addition to the well-publicized reforms to the bureaucracy Rackauckas has championed, his prosecutors much more quietly have been setting criminals free. A criminal wrongly targeted by informants who gets very lenient treatment, Natapoff observes, doesn’t become the subject of highly public, highly embarrassing hearings about misconduct – like Dekraai’s.
“We saw the Orange County District Attorney start to cut deals with very serious criminals – people who had committed or were charged with murder. They were getting out early. Their sentences were being cut drastically,” Natapoff said. “In effect the government was using the extraordinarily powerful tool that it has in plea bargaining to shut down the valves of information in the criminal system that would permit us to have learned more.
“We can’t underestimate the power that the government has to ensure that we never learn the details of these cases where the government has engaged in misconduct.”
Natapoff’s conclusion: Orange County can’t go it alone. Snitch tanks are a national problem that needs a national solution. “This,” she said, “deserves greater scrutiny.”
• • •
The main unknown now is just how much damage still remains to be discovered among cases handled before the revelations in the Dekraai case were aired.
The litany of past cases affected so far by the new evidence continues. First, Judge Goethals acted in another case, ousting a senior deputy district attorney, Erik Petersen, from two Mexican Mafia prosecutions amid allegations that evidence was withheld from the defense. Petersen later resigned.
Leonel Vega, who had been serving life in prison for a 2004 murder, had his conviction vacated and received the right to a new trial because Orange County prosecutors failed to give his lawyer hundreds of pages of evidence about prolific jailhouse informant Oscar Moriel. The informant claimed Vega had confessed to him. Prosecutors later offered the 34-year-old Vega a plea bargain, which he accepted; he could be released as soon as 2019.
Isaac John Palacios admits he shot and killed a rival gang member, pulling the trigger at least 15 times in a Santa Ana driveway, and pleaded guilty to second-degree murder, a crime that often carries a life sentence. Yet the 30-year-old gang member walked free a few hours after the plea; the reduced sentence came because the Orange County District Attorney’s Office had failed to disclose information on the same informant as in the Vega case, Oscar Moriel. Among the information never turned over: Three other inmates had supposedly confessed to the same killing. Prosecutors also dropped charges against Palacios in a second gang killing. The lead prosecutor said they had offered time served to a killer in part to avoid another Dekraai hearing, and also to preserve Moriel as a viable witness in other cases.
The sister of the victim wasn’t buying this. “I don’t feel like you guys did your job,” she told the court. “This person is completely laughing, walking away. … And my brother’s dead. … This is just like a slap to my face.”
Attempted murder and gun charges were dropped against white supremacist gang member Joseph Martin Govey after a judge ordered that informant evidence be disclosed in the case. Govey, a fleeing parolee-at-large at the time of his arrest in August 2011, was accused of soliciting the death of an informant. Rather than release the information, prosecutors dropped the case.
Bryant Islas was given a six-year sentence for attempted murder in a plea deal that was struck after the debate over jailhouse informants became public, according to his attorney. Islas, 31, was facing up to life in prison before the deal ended a case in which he allegedly tried to kill a street gang rival. With credit for time served, he’ll be out in 2016.
Eric Ortiz, convicted of gunning down a man in Santa Ana in 2006, though not arrested until 2011, was granted a new trial after four sheriff’s deputies who work with jailhouse informants asserted their Fifth Amendment rights against self incrimination rather than testify. Superior Court Judge Richard King ruled that Ortiz could not get a fair trial if the deputies wouldn’t cooperate. Two of the four deputies were the pair Judge Goethals excoriated in the Dekraai case.
Meanwhile, Daniel Wozniak, the double murderer represented by Sanders, lost his bid for a repeat of the Dekraai ruling. The judge on his case, Superior Court Judge John Conley, criticizing Sanders’ tactics, found no prosecutorial errors and no reason to remove the D.A.’s Office from the case. Wozniak was convicted by a jury and awaits the penalty phase in the new year.
And then there is William Charles Payton, a notorious Orange County killer who was sentenced to death 33 years ago. Payton is among the first in line scheduled to die if and when executions resume in California – unless his becomes the oldest case caught up in the Orange County snitch scandal through allegations made by Sanders.
The latest twist in the long-running Payton case started more than three decades ago with a habitual drug dealer and petty criminal by the name of Daniel Escalera, locked away in the Orange County Jail.
Escalera spent his time in lockup on the hunt, and his weapon was the Bible. His quarry: the man in the adjoining cell, William Charles Payton, awaiting trial for the rape and bloody stabbing murder of a young woman in Garden Grove.
Escalera spent day after day ingratiating himself with Payton. They conversed daily about Christ. They read the Scriptures together. And, unbeknownst to Payton, Escalera spent the entire time gathering information. He was a jailhouse informant who would turn from cellblock friend to star witness in the penalty portion of Payton’s 1982 trial. The prolific snitch’s testimony about Payton’s “severe problem” with women and sex helped put Payton on death row for one of the most vicious crimes of the era.
Now the old case looms as a battleground again, another in a spate of seemingly resolved cases that have drawn new scrutiny due to the ongoing controversy. The issue is the same with Payton as it was with Dekraai: Did prosecutors follow the law in disclosing evidence about informants, or did they hide the ball?
For Payton, now 61, the question is of mounting urgency. He is high on the list of condemned felons in California – and the next in line from Orange County – eligible to receive a lethal injection. Nine years after the last convicted killer was put to death here, state officials this month unveiled a new, single-drug protocol that could result in executions resuming as soon as next year.
For almost two decades, Payton has alleged a cover-up of information about Escalera that could have helped his case at trial and sentencing, according to Payton’s habeas corpus attorney, Margo Rocconi. Even now, Orange County prosecutors have balked at turning over vital informant records, Rocconi alleges.
Mike Jacobs, a former Orange County prosecutor involved in the Payton case and now in private practice, said he followed the law and was vindicated in appellate court.
“I never willfully withheld any evidence in the Payton matter,” Jacobs said. “That was adjudicated in a federal writ of habeas 16 years ago. If she wants to relitigate it again, she may try,” he said about Rocconi, “but Payton has already exhausted his state and federal remedies.”
Payton was convicted of exceptionally brutal crimes. Physical evidence and eyewitness testimony tied him to the rape and murder of Pamela Montgomery, a 21-year-old woman stabbed a dozen times at a home in Garden Grove. Payton also was convicted of trying to murder two others who were present in the hours before dawn in May 1980: Patricia Pensinger, who survived 40 stab wounds, and Pensinger’s 10-year-old son, Blaine, who was stabbed 23 times but lived.
As in the Dekraai and Wozniak cases, the key question from the outset was whether Payton would be sentenced to death. Escalera’s testimony, coupled with the heinous nature of the crime and testimony from other witnesses, including one of Payton’s ex-girlfriends, prevailed over the defense’s argument that Payton’s life should be spared because of his religious transformation while imprisoned, appellate records state.
In his 752-page legal motion filed in the Wozniak case, Sanders cited the Payton death penalty conviction and the informants involved as an example of what he called a “bottomless well of jailhouse informant concealment.” He contends that the complete story about the informants’ backgrounds and their close relationship with prosecutors never got to Payton or his defense team and therefore never was told to the jury.
Five years after Payton’s last appeal – and nearly a quarter-century after Payton’s trial – Escalera signed a handwritten declaration in which he finally laid out the full scope of his work for law enforcement.
The 2006 declaration, obtained by the Register, indicated that he was not just any other cellmate. Besides being an informant for the Orange County Sheriff’s Department and District Attorney’s Office, Escalera also worked as an informant for the U.S. Drug Enforcement Administration, the FBI and the Los Angeles County Sheriff’s Department.
The Fullerton Police Department considered him so vital to its drug-enforcement operations that detectives provided Escalera with an apartment he used while out of jail, in addition to giving him free food stamps, according to the declaration.
From 1977 to 1982, Escalera wrote, “I considered myself to be working as a government agent at all times.”
Escalera also said in his signed statement that he expected – and was later given – leniency for felony charges against him, including a 1981 armed robbery, in exchange for his informant testimony.
Payton’s new attorney, Rocconi, has obtained the declarations, but she still wants prosecutors to turn over Escalera’s Criminal Informant Index card, or CII, which could indicate, for example, whether Escalera was considered a reliable informant.
Although Payton has exhausted his death penalty appeals, Rocconi said she may seek to reopen the case and is weighing legal action against the District Attorney’s Office.
Rewarding informants is always a tradeoff and a risk, because it often requires granting freedom to one criminal in exchange for convicting another. In the case of Escalera, the trade-off would prove disastrous to a gas station attendant and his family after Escalera’s sentence of up to eight years for robbery was reduced to probation. A few months later, he fatally shot a gas station attendant during an early morning altercation. The star informant had become a killer.
Said former prosecutor Jacobs: “It’s a prosecutor’s worst nightmare.”
• • •
In November 2015, more than three dozen legal experts and ex-prosecutors called for a federal investigation into allegations that Orange County prosecutors and sheriff’s officials improperly used jailhouse informants and withheld evidence from defense attorneys.
The group, including former Los Angeles District Attorney Gil Garcetti (whose office weathered its own quite similar snitch scandal years ago) and former Chief Assistant U.S. Attorney Richard Drooyan, penned a letter to U.S. Attorney General Loretta Lynch calling attention to a “crisis” in the county’s justice system.
“Compelling evidence of pervasive police and prosecutorial misconduct in Orange County … has caused us grave concern,” they wrote in the 25-page letter.
“It is fair to say that the criminal justice system in Orange County is in a state of crisis: charges in extremely serious cases have been reduced or dismissed; violent crimes – including murders – have gone entirely uninvestigated; to date, four law enforcement officers have refused to testify in pending criminal matters, citing their Fifth Amendment privilege against self-incrimination; and at least one prosecutor has been found by a court to have given ‘incredible’ testimony under oath. More troubling still, this all appears to be the tip of the iceberg.”
Susan Kang Schroeder, chief of staff for Rackauckas, said the letter seemed to be cobbled from defense legal briefs and what she characterized as inaccurate news accounts, not from the complete court filings. “Our position has always been, and will continue to be, we welcome any scrutiny and input from any law enforcement agency who wants to come in,” Schroeder said.
Sheriff Hutchens also said her agency would cooperate with any federal investigation, although she added it would be prudent to wait for the outcome of the state probe.
Hutchens said her department has learned from its mistakes. “During the court proceedings over the last several months, we have identified and acknowledged operational deficiencies and responded with immediate corrective action to include revised policies and improved training,” she said.
The office of California Attorney General Kamala Harris is investigating local prosecutors and police over the use of informants at Rackauckas’ request. The same office has appealed Judge Goethals’ ouster of the D.A.’s Office from the case and wants the local office reinstated.
Among those signing the letter calling for a federal probe was Erwin Chemerinsky, dean of the UC Irvine School of Law, and former California Attorney General John Van de Kamp, who said the feds should stop watching from the sidelines.
“Failure to turn over exculpatory evidence can lead to wrongful convictions. Without a comprehensive investigation, we’ll never know how many convictions were wrongfully obtained in Orange County,” Van de Kamp said. “At the same time, serious cases there appear to have been minimized by or tainted by the practices of the two agencies. In one case a defendant (Leonel Vega) sentenced to life without parole for murder now faces less than four years in prison because of law enforcement misconduct.”
The question isn’t who to blame,but what happened and how do we fix it.
As Orange County’s top law enforcement official, District Attorney Tony Rackauckas is the most obvious fall guy for the informant scandal, as Judge Goethals noted in March 2015 when he removed the D.A.’s office form the Dekraai case.
Blaming Rackauckas, however, does not fully address the deeper question of why the jailhouse informant issue blew up in Orange County – why, of all places, the controversy happened here. It also begs the question of where the checks and balances were, and what safeguards, if any, must now be put in place.
“Systematic problems don’t happen unless all parts of the system fall asleep at the switch,” said Miriam Krinsky, a former federal prosecutor and past member of both the Los Angeles Citizens’ Commission on Jail Violence and the Los Angeles Ethic Commission. She also signed the letter calling for a federal investigation.
“The question isn’t who to blame,” Krinsky said, “but what happened and how do we fix it. That’s the only way it will move beyond the blame game.”
Available evidence so far suggests that law enforcement agencies, operating with unchecked power, and motivated to obtain convictions, lacked the political will or the bureaucratic mechanisms to protect the rights of the accused, said Natapoff, the Loyola law professor. This was essentially what Goethals concluded when he ousted Orange County prosecutors from the Dekraai case: They simply couldn’t cope with the conflict between policing their police partners, and making sure defendants rights were protected.
In an interview, Sheriff Hutchens acknowledged responsibility for any wrongful actions that might have occurred in the jails, especially those involving the interaction of jailhouse informants with other inmates.
“In hindsight, yeah, I think we needed to have stronger controls in place,” she said, while stopping short of admitting any specific transgressions pending the ongoing state Attorney General’s probe.
The controversy has unfolded against the backdrop of a politically conservative county that has long prided itself on being tough on crime. Home to a thriving tech sector, Disneyland and beachside enclaves brimming with yachts, this is the ambitious, self-absorbed culture that gave rise to television’s “The O.C.” and “The Real Housewives of Orange County.”
Widespread affluence belies the fact that the sprawling county was mired in a government bankruptcy a generation ago and is infested, in poorer pockets, with a serious gang problem and related drug trafficking and violence. The Orange County Jail, with its hive of informants, is itself located in a community, Santa Ana, with a major criminal gang presence.
An yet, compared to people in urban regions such as San Francisco, where social activism abounds, residents of Orange County seem to care little about constitutional ideals or other serious issues, said attorney Gary L. Chambers, a past president of the Orange County Trial Lawyers Association.
“They care about their cars, their houses, their clothes, their kids, where their kids go to school, where they vacation,” Chambers said. At group events here, he said, “If I get into society rights at all, you watch their eyes glass over.”
What public consciousness exists here tilts heavily toward keeping the streets safe, not ensuring protections for jail prisoners, said defense attorney Jeffrey Friedman. “Orange County has been the hotbed of tough-on-crime policies and legislation ever since I’ve been here, and I’ve been here since ’73,” Friedman said.
Newport Beach civil rights attorney Richard Herman, who successfully sued the county over conditions at the jail under former Sheriff Brad Gates, said he attended a community meeting in Anaheim a few years ago after the police shooting of some Latino youths.
Rackauckas was there, along with various judges and lawyers, Herman remembered. “When someone said, ‘Kill all the gang members,’” the attorney recalled, “various not-to-be-named judges stood up and applauded.”
Now critics question why the D.A. and other Orange County authorities failed to learn lessons from the jailhouse informant scandal in Los Angeles. “Didn’t they get the memo?” asked Natapoff, who joined in the request for a federal investigation of Orange County.
“We … had the biggest jailhouse snitch problem in the country, in history, and the biggest investigation ever” in Los Angeles, she said, “and 45 minutes away it’s as if it never happened.”
Officials say they are in fact responding, as witnessed by the reforms imposed by both the D.A. and the sheriff on the informant program and the machinery of compiling evidence that must be turned over to defendants as they prepare their cases. Critics, however, question whether in-house reforms will be enough when the fundamental role of the district attorney – to fairly uphold the law – seems at odds with the day-to-day political pressure to obtain convictions.
Chemerinsky, the UCI Law School dean, said that the ultimate duty of seeking justice is sometimes forgotten and that “prosecutors’ enormous power – at times unchecked power – leads to abuses.”
• • •
The case that started it all, the prosecution of Scott Dekraai for the murders at Salon Meritage in Seal Beach in October 2011, remains in limbo. Dekraai has pleaded guilty, but the penalty trial that will determine his fate remains unscheduled as the attorney general appeals the removal of the D.A. from the case. That could take a year or more.
The survivors of that terrible day and the families of the victims are disappointed and frustrated by the long delays. Some think the defense attorney is out of bounds. Some blame the D.A. All just want it to be over.
“My frustrations are at an all-time high,” said Paul Wilson, who lost his wife, Christy, a manicurist at the salon for more than 15 years.
“It’s a never-ending sadness,” said Rooney Daschbach, who lost his sister, Michele Daschbach Fast, the soccer-mom of three who stopped in Salon Meritage for the first time that day.
“I’m trying to figure out how there ever could be justice,” said Beth Webb, whose sister Laura Webb Elody worked and died there, and whose mom, Hattie Stretz, just popped in for a haircut and a little pampering when she was shot, though not fatally.
The district attorney now finds himself fending off not just the usual critics – the defense attorneys – but also The New York Times editorial board, which labeled the D.A.’s explanations “implausible.” Now some of the very people Rackauckas swore to help – the victims’ families – are losing faith as well.
“We just are not able to ever put this aside, to get back to our day-to-day lives,” Wilson said. “And it continues to be there for one reason – the incompetence of Tony Rackauckas and his office, which has completely and utterly dissembled this very black-and-white case because of their mishandling of it.”
Some families still support the district attorney and his efforts to seek the death penalty for Dekraai. “They’re great guys doing exactly what they need to be doing,” said Craig Burke, brother of Michelle Fournier, Dekraai’s ex-wife. “In hindsight, I wish they hadn’t used it (an informant). But they were trying to do the best case possible.”
At least four family members have asked Rackauckas to drop the quest for the death penalty in favor of life in prison without the possibility of parole.
“That’s the one thing he could do for us,” said Webb. “Stop the madness. Take the death penalty off the table and end all the appeals, all the court appearances. And let us get on without looking over our (shoulders) for the next 20 years in court.”
Webb added, “My mom asked the D.A., with tears in her eyes, she said, ‘I’m 75. I want to live my life without this hanging over my head. I’m asking you, can you do this?’ (Rackauckas) said no. I asked him point-blank, ‘What if all the families agreed to this?’ He said to my face: ‘We will not take it off.’ “
Former Salon Meritage hairstylist Gordon Gallego survived the shooting in a back room and witnessed its aftermath. “The families have memories of their loved ones in the best times,” said Gallego, 45, of Long Beach, who now co-owns another salon in Seal Beach. “I can’t get beyond the worst memories – those last sights, sounds, smells, everything I had to deal with.”
Gallego lost his two best friends, Buzzo and Webb Elody. For more than 20 years, the three worked together, hung out together, vacationed together. “It’s hard for me to move forward,” he said, his voice breaking. “It’s still a struggle to get up every morning,”
There is another victim, too, who was nowhere near the salon that day: Dekraai and Fournier’s son Dominic, then 8, who lost both parents in that 100-second span of gunfire. His mother was murdered, and his father will never step out of prison. Dominic’s older sister, Chelsea Huff, took him in and said her brother was adjusting to his new life but was still a bike-riding, skateboarding, baseball-playing boy.
Amid the lingering grief and the endless delays, there is also the poignant intertwining of lives that tragedy so often compels – and that hints at the possibility of healing.
Doug Childers’ life changed that day, too. He had led the band of good Samaritans on the day of the shooting as they raced to the salon from a construction site across the street, hoping to help. Though he had known none of the victims in life, he felt the need to attend their funerals.
At one of the services, the 47-year-old contractor met a former Salon Meritage stylist. Two years later, Childers and Tammy Hetzel married on the sand in Seal Beach.
Survivor Hattie Stretz attended – –it had been at her daughter Laura Webb Elody’s funeral that the newlyweds met.
Childersrsquo; new best friend, Rooney Daschbach of Sunset Beach – Michele Fast’s brother – stood in as best man. Many other people connected to Salon Meritage filled the guest list that day.
The song playing at the start of the sun-drenched ceremony featured the lyric, “We found love in a hopeless place.”
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