A new report concludes the previous OCDA’s prosecutors exhibited misconduct and malpractice on a mass murder case

SANTA ANA, Calif. – Prosecutors handling the case against Orange County’s deadliest mass murderer exhibited prosecutorial misconduct in the performance of their duties and there is clear and convincing evidence that they also committed malpractice due to intentional negligence, according to an internal Orange County District Attorney investigation released to the public today. The two Dekraai prosecutors left the District Attorney’s Office prior to the completion of the investigation.

On October 12, 2011, Scott Dekraai, a 41-year-old former tugboat operator put on body armor, armed himself with several guns, and walked into a Seal Beach hair salon and executed his ex-wife and seven others in what would become Orange County’s deadliest mass shooting. A ninth victim survived the massacre. Dekraai was arrested just minutes after the shooting and booked into the Orange County Jail.

As a result of the serious failings of by the Dekraai prosecution team under the prior District Attorney administration, an Orange County Superior Court judge recused the entire Orange County District Attorney’s Office from prosecuting the case. Instead of being sentenced to death, Dekraai was sentenced to life without the possibility of parole.

The report, “Special Report to the District Attorney of Orange County: Prosecutors’ Role in the Dekraai Informant Controversy,” is the result of a 15-month internal investigation directed by Orange County District Attorney Todd Spitzer in April 2019 to determine the Orange County District Attorney’s Office’s culpability in the “Jailhouse Informant Scandal.” In essence to find out what happened, who was responsible, and how to prevent these failures from happening in the future.

Patrick Dixon, Special Counsel to District Attorney Spitzer and a 37-year prosecutor with the Los Angeles District Attorney’s Office, and Steve Danley, the former Chief Human Resources Officer and Performance Auditor for the County of Orange County, authored the report and presented its findings to District Attorney Spitzer.

Dixon and Danley conducted a comprehensive administrative investigation into the prosecution of People v. Dekraai. They reviewed thousands of pages of interviews, case files and transcripts, including transcripts of interviews OCDA prosecutors gave to the U.S. Department of Justice and the California Attorney General, and interviewed current and former OCDA personnel.

The report found the prosecutors handling People v. Dekraai violated discovery laws and rulings from the court, trampled defendant rights, and denied the full imposition of justice for the victims and their families. Prosecutors were so concerned that Dekraai would claim insanity and escape the death penalty as Edward Charles Allaway did when he committed Orange County’s largest mass murder to date in 1976 that they used a confidential informant to obtain tainted confessions from Dekraai, the report found. They also violated OCDA informant policies and protocols when they failed to check the Orange County Informant Index (OCII) for the informant for 15 months.

The use of a confidential informant in the case was unnecessary, and in fact detrimental to achieving justice, the report concluded.

The following is a summary of the investigative findings and recommendations:

Confidential procedures of federal/local joint gang task force increased the possibility of discovery violations related to confidential informants

• It is recommended that OCDA no longer participate in joint task forces until parties revise their Memoranda of Understanding to ensure local prosecutors receive the necessary discovery information regarding federal confidential informants in order to comply with Brady and Massiah laws.

Lack of Oversight of the Dekraai Case by Prior OCDA Executive Management

• The prior OCDA Executive Management’s failure to properly supervise high-profile cases, including Dekraai, resulted in prosecutors trying these cases without adequate oversight, including the lack of discussion and resolution of critical decisions such as the use of confidential informants. In 2019, under District Attorney Spitzer, OCDA established new programs and corresponding policies and procedures to ensure all major case prosecutions are reviewed by executive management, and that no case will be prosecuted if a Jailhouse Informant is involved, and no Jailhouse Informant will be utilized in the prosecution of a case, without the prior approval of the District Attorney. The OCDA’s revised 2020 Informant Policy Manual can be found here.
• The prior OCDA administration allowed for the creation of internal documents related to the Dekraai prosecution which omitted important information and failed to discuss known instances of prosecutorial misconduct, negligence, or malpractice. It is the affirmative duty of OCDA to ensure all communications are accurate and complete.

Dekraai Prosecution Team Performance Deficiencies

• Severe performance deficiencies by the OCDA prosecution team were identified in its handling of the Dekraai case. As confirmation, both the trial and appellate courts concluded that the prosecution team exhibited misconduct and negligence in the performance of their duties. This investigation agrees with this conclusion, but also probes deeper into the underlying issue causing the performance deficiencies: the circumstances and timing of the prosecution team in learning that the inmate providing information on Dekraai was an experienced confidential informant. Nearly every performance in Dekraai stems from the answer to this question. This answer is also critical as it identifies the culpability of members of the prosecution team and ultimately the level of discipline that should be recommended for their performance.
• The investigation found there is clear and convincing evidence to a reasonable certainty that indicates Dekraai prosecutors also committed malpractice due to intentional negligence. This finding necessitates the imposition of severe disciplinary action against the prosecutors. However, before the completion of the internal investigation, both Dekraai prosecutors resigned their employment with OCDA and are now outside the administrative purview of OCDA. Notwithstanding, this report is available to state compliance and law enforcement agencies for their review.

Confidential Informants Used in Non-Dekraai Cases

• There is insufficient evidence to determine prosecutorial misconduct or malpractice in the five other cases where confidential informants were utilized.

Improvements Implemented by OCDA

• OCDA has implemented significant reforms to address the deficiencies involving the use of confidential informants.

Some of the key reforms include:

• Establishment of regular executive staff meetings
• Update of the OCDA Legal Policy Manual
• Establishment of Major Case Review Committee to ensure that all major cases are periodically reviewed and discussed with executive management
• Development of a new prosecutor annual performance evaluation focused on developing the “whole prosecutor” rather than only on “winning cases” at any cost
• Development of a new policy regarding Brady and discovery obligations for prosecutors and law enforcement personnel
• Establishment of a Conviction Integrity Unit that investigates claims of factual innocence presented by defendants who were convicted of serious or violent felonies
• Establishment of a Chief Ethics Officer position that functions in an advisory role to OCDA staff on ethics-related questions on individual cases as well as those that pertain to global ethical issues
• The administration of discipline by the current OCDA administration for prosecutorial misconduct
• Development of an Informant Policy Manual that reforms OCDA policies and procedures regarding the use of informants
• Establishment of a standalone Professional Responsibility and Training Unit that provides a comprehensive program of continuing legal education and training
• Creation of a revised policy for the granting of immunity

The “Special Report to the District Attorney of Orange County: Prosecutors’ Role in the Dekraai Informant Controversy” can be found on the Orange County District Attorney’s website here.

The Orange County District Attorney’s Office has been fully cooperative in the ongoing U.S. Department of Justice investigation into the “Jailhouse Informant Scandal,” including requiring OCDA prosecutors to be interviewed by the DOJ and traveling to Washington, DC to discuss the investigation.