Judge Thomas M. Goethals to Prosecutor: Discover This!

Courtrooms can be confusing for a layperson. Lawyers and judges like to speak in a shorthand legalese that is essentially barking California code sections at one another: “1101(b),” says an attorney during proceedings. His opponent responds, “352,” and then a third player, the judge, determines the discussion requires a “402” hearing. Yet, court also occasionally offers moments of clarity a fifth-grader—or even a recalcitrant prosecutor—should be able to grasp.

At Orange County's central courthouse on July 25, exactly such an unambiguous event occurred just before 11 a.m. inside the top floor's largest, long-trial courtroom. The prized space has witnessed many high-profile criminal cases and for years belonged to the county's senior judge, Francisco P. Briseño. Nowadays, Judge Thomas M. Goethals presides over C45, which, on a clear day, offers Pacific Ocean and Catalina Island views.

It's difficult to imagine that prosecutor Howard Gundy needed to be taught a lesson—that aforementioned moment of clarity—because he's a veteran, but that's what happened during one of Goethals' current cases: People v. Scott Dekraai. In 2011, the defendant committed the county's deadliest massacre, fatally gunning down eight people, including his ex-wife, at a Seal Beach salon. Guilt isn't an issue. The onetime fishing-charter crewman confessed when captured near the scene of the crime and formally pleaded guilty in May.

Gundy and the Orange County district attorney's office (OCDA) want to send Dekraai to death row, where he'll likely die in his cell of natural causes. Dekraai's defense lawyer, Assistant Public Defender Scott Sanders, is pushing for a 400-plus-year sentence without the possibility for parole, a scenario in which the defendant will also likely die in his cell of natural causes. Given the horrific circumstances of the shooting, it's probable an Orange County jury would grant the OCDA's request without deputy DAs breaking a sweat. But, sadly, the office adopted a win-at-all-costs mentality.

The penalty phase of the case has been delayed for more than 18 months because Sanders noticed suspicious OCDA maneuverings. On Jan. 31, he filed a 505-page motion detailing his yearlong probe. He says prosecutors and jail deputies inside the Orange County Sheriff's Department (OCSD) breached discovery obligations to surrender exculpatory evidence to defense lawyers, violated pretrial defendants' rights by engaging in illegal questioning plots, doctored informant programs to favor convictions and misled judges to cover up their misdeeds.

Fortunately for Sanders, Goethals presides in the Dekraai case. More than a few of the judge's colleagues don't hide their pro-government tilt, an unsurprising fact given so many folks in black robes here jump from OCDA jobs to the bench. Having worked as both a prosecutor and as a defense attorney, Goethals possesses dual empathy.

When Sanders confronted Dan Wagner, the brainy, Boy Scout-looking, OCDA homicide-unit boss scoffed in contempt, urging Goethals—who headed the same homicide unit in the past—to dismiss the public defender's claims without testing. Given that the prosecutor's prior assertions didn't prove especially accurate, the public defender's stance prevailed, and subsequent evidentiary hearings conducted from mid-March through this month have become embarrassments for DA Tony Rackauckas' office. Indeed, given they weren't going to admit corruption, OCDA officials—including Gundy—adopted the unenviable stance that all their errors committed in more than a dozen felony cases were the result of unintentional ineptitude involving managerial housekeeping incompetence or legal ignorance.

Sanders says Wagner was so determined to sabotage any possible Dekraai defense that he violated ethics, including ignoring a judge's order in hopes of obtaining sealed, confidential psychiatric records; employed two-faced Mexican Mafia hoodlums as informants to entice the defendant into talking about crime details and revealing potential defense strategies; hid records of the informant's activities; created misleading audio and written records; refused to comply with Goethals-ordered discovery obligations; and took years to surrender documents.

It galls Sanders that OCDA conducted a media campaign alleging he has been callously stalling the case and delaying justice for the victims' families. He also thinks Rackauckas cheated by leaking to the press illegally obtained inflammatory recordings that can't be introduced in court. Says Sanders, “The signal to the public and, more important, to the future jurors on the case could not be clearer: The recordings show Dekraai should be executed.”

Representing OCDA in the evidentiary hearings, Gundy has brought schoolboy zeal to the task. More than once, he has pounded his fists, raised his voice and snarled at the public defender, making no secret of the contempt prosecutors feel for Sanders. Consider his May 15, on-the-record colloquy with prosecutor Mark Geller, who reluctantly admits he failed to turn over required documents to defense lawyers and isn't happy about the revelation because he said his mistakes weren't nefarious.

Gundy: “Tell me, you said you called Mr. Sanders an imbecile?”

Geller: “And many other things, too.”

Gundy: “Well, let's use that word.”

July 25 was the date Goethals scheduled for the Gundy-Sanders oral-argument showdown before ruling on whether OCDA has cheated; if so, he will then consider whether the office should be recused and banned from seeking the death penalty in the case. Whatever decision the judge makes will be historic. Spectators—including seven journalists—packed the courtroom, but anticipation quickly dissipated.

At the outset of the hearing, Goethals announced yet another setback for prosecutors, who claimed in January 2013 they'd surrendered all necessary evidence to the public defender only to later hand over 12,000 pages after the judge demanded discovery compliance. Now, Sanders has uncovered an additional 1,826 pages of discovery the DA's office failed to produce.

“It's a strange and challenging situation we find ourselves in today,” Goethals said. “The last thing I wanted to do is extend this hearing, [but new evidence] suddenly washed ashore, [and Sanders has been saying] 'the People have been hiding the ball.'”

Over Gundy's exasperated objections, the judge agreed to allow the public defender to re-question Wagner, deputy DA Erik Petersen and OCSD Deputy Seth Tunstall, the author of the missing documents.

This is when that moment of clarity happened. Rising to his feet and lifting his voice, Gundy refused to concede OCDA had ethical obligations to get the missing records to Sanders because prosecutors allegedly didn't know about them. Goethals looked equally exasperated. He picked up a copy of a 2005 California Supreme Court opinion (People v. Salazar) and read lines describing a prosecutor's “duty” to learn of all evidence collected by police in a case.

Gundy shifted the subject, declaring, “not everything is discoverable.” Then he said what information Tunstall knows about cases can't be “imputed” to the OCDA. The judge disagreed, noting that even the agency's training manual requires prosecutors to comply with the high court's instruction. He also was incredulous that Gundy distanced the office from Tunstall, who has been a member of state prosecution teams for years.

“To say he's not a state agent is disingenuous,” Goethals said.

Sanders chimed in, stating, “What they are saying is, 'You'll never know [what exculpatory evidence exists].'”

Gundy tried one last move, arguing the key isn't whether records exist that should be surrendered, but rather whether the defense can prove prosecutors purposely hid the evidence.

Goethals wasn't impressed.

The judge, who is expected to issue his final ruling in early August, advised the prosecutor, “The law isn't that complicated.”