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The two veteran prosecutors at the center of the snitch scandal that rocked Orange County’s justice system have resigned following questioning about their actions by federal civil rights investigators.
Assistant District Attorney Dan Wagner and Senior Deputy District Attorney Scott Simmons improperly used a jailhouse informant against mass murderer Scott Dekraai in 2011 — triggering the controversy over Orange County’s decades-long illegal use of snitches to win convictions. The scandal cost 20-year District Attorney Tony Rackauckas his job last November and helped Dekraai escape the death penalty for Orange County’s bloodiest mass murder.
The resignations, effective in early December, end another chapter in the controversy over the misuse by prosecutors and sheriff’s deputies of jailhouse informants against inmates who were denied their right to counsel. According to federal case law, known as the Massiah rule, informants cannot be used on defendants who have been formally charged and have obtained lawyers.
The misstep by Wagner and Simmons on Dekraai — who had already confessed to killing eight people at a Seal Beach beauty salon in 2011 — led to the discovery that the Orange County District Attorney’s Office and the Sheriff’s Department had surreptitiously created a network of jailhouse informants that was misused against other inmates.
The entire process had been kept secret from defense attorneys, in violation of discovery requirements, until the Public Defender’s Office started asking questions in the Dekraai case.
Discovery of the scandal by Assistant Public Defender Scott Sanders, representing Dekraai, prompted a Superior Court judge to ban the entire District Attorney’s Office from the case and later give Dekraai multiple terms of life in prison instead of the death penalty that Rackauckas had promised.
Sanders said Thursday that the exodus of prosecutors involved in the misuse of informants doesn’t take away the need to go back and make right the cases in which defendants’ rights were violated.
“The OCDA certainly hopes their departures will somehow quiet the call for reform. It won’t,” Sanders said. “This news today doesn’t aid a single defendant who was deprived of a right to a fair trial because evidence was withheld.”
District Attorney Todd Spitzer responded to Sanders: “Again, Mr. Sanders doesn’t know what he is talking about. … No one’s retirement ends our inquiries or my desire to make sure these debacles under Rackauckas’ failed watch ever jeopardize justice in this county in the future or with past cases.”
Victim’s husband: ‘Long time coming’
Paul Wilson, whose wife, Christy, was killed in the Seal Beach shooting, said Thursday that his criticism of the District Attorney’s Office will not end with the resignations of Wagner and Simmons.
“This is a long time coming and, let’s be very clear, this is not an early retirement — this is a resignation by these two cowards who clearly saw the writing on the wall,” Wilson said. “Mr. Spitzer should have done this a year ago when he took over this corrupt office.
“This is a clear sign that the presence of these type of bad characters will be exposed and will not be allowed to be swept under the rug and hidden as it was with Mr. Rackauckas.”
Dekraai was arrested within minutes of the shooting at the Salon Meritage and immediately confessed to police what he had done. Rackauckas, on the verge of tears at a news conference, named each victim and vowed that Dekraai would get the death penalty.
It seemed like a safe bet. But Wagner and Simmons weren’t satisfied. In an earlier interview, Wagner explained they feared Dekraai would try to escape the death penalty with an insanity plea. Such a plea spared Edward Allaway, who killed seven people in 1976 at Cal State Fullerton. He was found insane by a judge and sent to a state hospital, where he remains.
In the Seal Beach case, Dekraai had befriended a veteran informant at the jail’s Intake Release Center. The informant notified deputies and prosecutors, who agreed to wire Dekraai’s cell. They told the informant to listen and not ask Dekraai any questions, an attempt to stay within the bounds of the Massiah rule. But it appears the informant went past the parameters.
Sanders discovered the problem and began pulling on the loose thread. It resulted in several evidentiary hearings on the use of informants by prosecutors and sheriff’s deputies. At least seven murder and attempted murder cases unraveled because of informant-related violations.
A judge also took action against the Dekraai prosecutors, saying he did not believe Dekraai, who pleaded guilty, would get fair treatment in the penalty phase.
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