Prosecutors, Deputy to Return to Stand in Dekraai Case Legal Wrangling

By PAUL ANDERSON
City News Service

A defense attorney who alleges a widespread conspiracy to violate the constitutional rights of the worst mass killer in Orange County history and other defendants may recall two prosecutors and a sheriff's deputy as witnesses in a hearing that started in March, a judge ruled today.

Orange County Superior Court Judge Thomas Goethals had been expected today to hear final arguments in the evidentiary hearing for Scott Dekraai. But the convicted killer's attorney, Scott Sanders of the Orange County Public Defender's Office, said he recently came across more information about the confidential informant who caught Dekraai apparently bragging about gunning down eight people and nearly killing a ninth at the Seal Beach beauty salon where his ex-wife worked.

Sanders alleges that the informant, Fernando Perez, was purposely placed in a neighboring cell to Dekraii, which violated his client's constitutional rights since he already was represented by an attorney.

Prosecutors wanted to play a tape of the conversation between Dekraai and Perez for jurors who would consider whether to recommend the death penalty for Dekraai, who pleaded guilty to the murders in May.

Sanders wants Goethals to remove the Orange County District Attorney's Office from the Dekraai case in favor of the Attorney General's Office and to have the death penalty removed as a sentencing option.

Prosecutors have capitulated on their efforts to use the jailhouse snitch's recording in the penalty phase of Dekraai's trial.

Goethals today rejected Sanders' motion to drop the death penalty based on a July 16 ruling by U.S. District Judge Cormac Carney, who found that the death penalty is unconstitutional in California because the state underfunds it, exacerbating bureaucratic delays in administering it.

Goethals, however, praised Carney and his ruling and even said he mostly agreed with it, though he found it only applied to one inmate's challenge to the ultimate punishment.

But Goethals agreed with Dekraii's attorney that more testimony should be presented since a private investigator contacted Sanders on July 16, saying he received notes Perez took while in custody that have so far not been turned over to Dekraai's defense team, an apparent violation of an order from Goethals to turn over all of the informant's documents taken as a government agent.

Senior Deputy District Attorney Howard Gundy argued that state prosecutors are "walled off" from federal prosecutors, particularly in a joint investigation in which Perez played a role called Operation Black Flag, and that the evidence in this case belonged to federal prosecutors.

Part of the problem is sheriff's Deputy Seth Tunsall was working on a task force that helped state and federal prosecutors.

"Where we are with these investigations is a split personality," Gundy said of the divided loyalties and directions from separate bosses.

Goethals indicated little sympathy as he acknowledged the "complexities" of the relationships, but he said state prosecutors are obligated by law to know what their investigators know and to turn over all evidence to defense attorneys to review.

"It is not our (evidence)," Gundy complained. "We have been walled off, which is why we have not gotten a lot of this discovery. It's the federal government that controls this."

Sanders said he doesn't buy the government's explanation.

"I think they can get the material they want," he said.

Sanders added that state prosecutors cannot be trusted to turn over all the information on Perez.

"I don't know how much more discovery is still out there," he told the judge. "And what they're essentially saying today is you'll never know, and, 'Sorry, the feds have it; go get it."'

Gundy replied, "We did not hide anything. This is not state discovery. This might as well be from Arkansas."

Goethals will allow more testimony Tuesday from sheriff's Deputy Seth Tunstall, who earlier contradicted testimony from former federal prosecutor and now Orange County Superior Court Judge Terri Flynn-Peister, who said she did not interfere with turning over evidence to prosecutors or defense attorneys handling state cases in a crackdown on gang violence known as Operation Black Flag.

Goethals will also allow Sanders to further question Assistant District Attorney Dan Wagner and Deputy District Attorney Erik Petersen, who Goethals tossed from a gang case in March for not turning over potentially exculpatory evidence to defense attorneys.

Sanders, in a 505-page motion filed earlier this year, alleged the basis for the evidentiary hearing is that prosecutors have been burying exculpatory evidence and sheriff's officials were having jailhouse informants illegally question other inmates.