SANTA ANA (FOX 11 / CNS) - Orange County Sheriff Sandra Hutchens will begin testifying Wednesday in an evidentiary hearing regarding the use of jailhouse informants as part of the death penalty case against Scott Evans Dekraai, the worst mass killer in the county's history.
Dekraai, who pleaded guilty in May 2014 to eight murders and one attempted murder for a 2011 massacre at a Seal Beach beauty salon, is awaiting the penalty phase of the legal proceedings, with the state Attorney General's Office still pursuing the death penalty.
The Orange County District Attorney's Office was kicked off the case for outrageous governmental misconduct.
Orange County Superior Court Judge Thomas Goethals, who booted Orange County prosecutors from the case, is holding a third round of evidentiary hearings into how the prosecution was handled to determine if it is possible for Dekraai to receive a fair trial in the penalty phase.
Before he started the latest round of hearings, Goethals grew more impatient with county attorneys, saying delays in turning over evidence on the use of informants in the jails have spurred him to consider the "unthinkable,'' which is to remove the death penalty as an option for Dekraai.
If the judge makes such a ruling, Dekraai would be sentenced to spend the rest of his life in prison without any chance at parole.
In February, Goethals directed a lengthy tongue-lashing at the sheriff and her office regarding the use of informants. Angered by remarks the sheriff made in media interviews that denied any sort of a longstanding, organized informant program in the jails, Goethals cited multiple examples from recently uncovered evidence that he said indicated otherwise.
Particularly troubling to Goethals were remarks Hutchens made denying her deputies would "work cases'' with informants in the jails.
"Those quotes frankly make me wonder,'' Goethals said at a February hearing. "I respect elected officials and the sheriff has a tough job. ... But I have to wonder whether or not she's aware of the evidence turned over to this court over the years ... and I have to conclude she is not aware of the evidence presented to this court because if she were it would be hard to imagine an experienced law enforcement officer making such categorical statements.''
Last month, Goethals, while discussing the sheriff's planned testimony, said he was particularly interested in what she might say about testimony from sheriff's Cmdr. Jon Briggs that the department was so short of deputies that they were left largely unsupervised and adopted inappropriate techniques regarding jailhouse snitches.
The legal trouble for prosecutors began when Dekraai's attorney alleged a Massiah violation -- which occurs when an inmate is questioned by a government agent while already represented by an attorney. At issue in Dekraai's case was whether prosecutors or sheriff's deputies intentionally placed prolific informant Fernando Perez, a Mexican Mafia shotcaller, in a cell next to Dekraai's.
Investigators denied the allegation, saying a nurse made the call to put Perez and Dekraai next to each other. At some point, Dekraai allegedly made insensitive remarks about the killings, sources say, prompting prosecutors to have his jail cell wired, which elicited more incriminating comments.
Prosecutors said they were concerned about a possible insanity defense and wanted to refute that with the jailhouse comments. They never intended to call Perez as a witness so they fought to keep his identity secret.
Perez, it was later learned, proved helpful to federal prosecutors in taking down Peter Ojeda, the head of the Orange County chapter of the Mexican Mafia.
Ultimately, Goethals punished county prosecutors by prohibiting them from using Dekraai's jailhouse comments about the killings. Now jurors would only be able to consider the actual crimes and the effects the murders had on the families of the victims when determining whether to recommend capital punishment.
Last week, Hutchens announced she would retire and not seek another term next year, but she said the informant scandal played no role in her decision. The sheriff intends to finish out her term in office.
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