UPDATE: Dekraai Prosecutors Won't Use Snitch's Recording of Suspect Seeming to Brag About Murders

Originally posted at 2:49 p.m. April 22, 2014. Edited with new details.

By PAUL ANDERSON
City News Service

Orange County prosecutors today told a judge today they no longer wished to use a jailhouse snitch's recording of a defendant appearing to brag about the worst mass killing in the county's history.

Scott Dekraai's prosecutors told Orange County Superior Court Judge Thomas Goethals that they conceded what is known in legal parlance as a Massiah motion regarding a surreptitious recording jailhouse snitch an inmate made of Dekraai discussing the murders of eight people and attempting to kill a ninth victim. The recording was done in October 2011, about a week following the Oct. 12, 2011, massacre at the Salon Meritage.

Prosecutors, who are seeking the death penalty, wanted to use the recording in the penalty phase of Dekraai's trial to show a lack of remorse.

Dekraai's attorneys began seeking information about the inmate and how he came to make the recording in January 2013. Those efforts ultimately led defense attorneys to file a more than 500-page legal motion in February 2014 alleging a conspiracy of government misconduct to seek to have the death penalty taken off the table, prevent jurors from hearing the recording and get the Orange County District Attorney's Office booted from the case in favor of the state Attorney General's Office.

Goethals has been hearing evidence on the motion since last month.

The concession of the Massiah motion came before an Orange County prosecutor featured prominently in the government misconduct motion testified today that his opinion on laws governing the exchange of evidence is "evolving."

Dekraai's lawyers have targeted Deputy District Attorney Erik Petersen for much of their allegations of how law enforcement and prosecutors have collected evidence against defendants and at times withheld exculpatory information for tactical reasons.

Petersen denied any wrongdoing, but acknowledged that he perhaps made a mistake in giving defense attorneys the "option" to seek evidence in his possession instead of just turning it all over.

Last month, Orange County Superior Court Judge Thomas Goethals, who is presiding over Dekraai's evidentiary hearing, removed Petersen from a jail beating case because he violated a law requiring prosecutors to hand over evidence to defense attorneys. However, Goethals did not find that Petersen skirted the law intentionally.

Assistant Public Defender Scott Sanders also indicated in questioning of Petersen today that for the first time defense attorneys have been given evidence that a snitch was put into "the hole" with another inmate to gather evidence, which would be a violation of the defendant's constitutional rights.

The evidence indicates Santa Ana police asked for the snitch to be put in isolation with the defendant, which was done before his trial.

Sanders quizzed the 13-year veteran prosecutor about so-called Brady violations, named after a landmark case where the U.S. Supreme Court held that a defendant is entitled to get any and all evidence that may prove innocence.

"I never made a conscious decision to not turn anything over," Petersen said of evidence in his cases.

In one case, Petersen testified, he thinks he withheld evidence until after federal and local authorities made arrests in a crackdown on Mexican Mafia in-custody violence.

Petersen said in one case he had 140 hours of recordings of a jailhouse informant, which he let defense attorneys know they could examine if they wanted, but they said they didn't need to.

Sanders asked him why didn't just turn the recordings over whether they wanted them or not.

"It would have been easier to turn over everything," Petersen testified. "It's just easier to just push the discovery out."

Petersen added, "I would say my opinion on Brady is evolving."

Petersen said he was unaware of hundreds of pages of a jailhouse informant's notes that were later turned over to defense attorneys. He also denied knowing that sheriff's deputies were moving the informants around in isolation, whether they merited it or not, to seek evidence from suspects as alleged in Sanders' motion.

Petersen is assigned to prosecute violent gang crimes and was at one time the target of an inmate who unwittingly confided to a jailhouse informant his wish to have the prosecutor killed.

The unusual hearing began last month with testimony from jailhouse informant, known as Inmate F, who is under federal witness protection.

Assistant District Attorney Dan Wagner, Senior Deputy District Attorney Scott Simmons and District Attorney Chief of Staff Susan Kang Schroeder have testified.

Wagner testified that perhaps Petersen was "overworked" and his work load should be reduced. The assistant district attorney also testified that his opinion of Brady has evolved since considering Sanders' motion and that mistakes were made in the exchange of evidence, but he denied any wrongdoing.

Sanders told Goethals before testimony started today that he is prepared to argue that he doesn't buy the excuse.

"I don't believe these newfound understandings of the law," Sanders said. "I'm going to argue Mr. Wagner was terribly dishonest in his testimony."

After today's hearing, Sanders said, "They blamed us for delays while they delayed turning over the evidence related to the informant. They said we were deceitful within our motions and then admitted that defendants were deprived of evidence.

"Two and one half years they later they finally admit they violated Mr. Dekraai's constitutional rights, but the prosecution's concession seemed even more about stopping additional bad evidence from coming out."

Because of the lengthy proceedings, Goethals has made a rare ruling to split Dekraai's trial into two parts. Dekraai is scheduled to go on trial June 9, with one jury determining whether he is guilty.

Later, another jury will be impaneled to determine if Dekraai ought to be sentenced to death. That, however, depends on Goethals' ruling in the evidentiary hearing.