O.C. prosecutors committed malpractice in mass killer case, review finds

The Orange County district attorney’s office said two of its former prosecutors committed malpractice by willfully ignoring the use of a veteran government informant to obtain a confession from mass killer Scott Dekraai, according to an internal review that was made public Monday of the county’s so-called snitch scandal.

The 57-page report concludes that the two men tasked with prosecuting Dekraai — the admitted gunman who claimed eight lives in the 2011 Seal Beach salon massacre — made a “deliberate choice not to find out the criminal and informant history” of Fernando Perez, who was housed next to Dekraai when he confessed to the shootings days after his arrest.

Dekraai’s trial was key to revealing that the Orange County Sheriff’s Department had made a practice of placing seasoned informants near high-profile defendants while in the county’s jails, ultimately allowing them to question inmates about crimes for which they were awaiting trial without a lawyer present, a violation of their constitutional rights.

The scandal has led to at least a dozen retrials in Orange County homicide cases as well as reduced sentences for other defendants. But the blame for the misconduct had largely been focused on the Sheriff’s Department and former Dist. Atty. Tony Rackauckas.

The report released Monday focused largely on the actions of former Assistant Dist. Atty. Dan Wagner and Senior Deputy Dist. Atty. Scott Simmons, who oversaw Dekraai’s prosecution. Both men resigned late last year and have since opened a defense firm in Irvine. Calls and e-mails to both men were not returned Monday.

The report did not mention them by name, citing confidentiality laws, but described both of their job titles in relation to the case.

“These apparent acts of deliberate negligence have had devastating consequences to the victim’s families, the Orange County criminal justice system and its law enforcement agencies,” the report read.

The report’s main conclusion was that the two prosecutors ignored voluminous evidence that Perez was a longtime jailhouse snitch for various law enforcement agencies, a fact that wasn’t disclosed to Dekraai’s defense counsel until years after his arrest.

Less than a week after Dekraai was jailed, a sheriff’s deputy told a district attorney’s office investigator assigned to the case that Perez had “provided good intel in the past” and wanted to offer information in connection with the Seal Beach massacre. Less than two months earlier, prosecutors were also given a presentation about a federal takedown of Mexican Mafia members, dubbed Operation Black Flag, that would have included details about Perez’s status as an informant, according to the report.

The district attorney’s office also kept an “Informant Index” that noted Perez had cooperated with law enforcement as far back as 1999, yet neither of the lead prosecutors checked the index after he became part of the Dekraai case, the report found.

“During the first six months of the Dekraai case ... the prosecution team repeatedly ignored clear and compelling evidence that Perez was a veteran federal confidential informant,” the report read.

Assistant Public Defender Scott Sanders, who represented Dekraai and helped expose the informant scandal, said Monday’s report revealed little in the way of new information. He argued many of the details about what Simmons and Wagner should have known about Perez were contained in filings he made during Dekraai’s trial in 2014.

The report also found the district attorney’s office had done nothing wrong in five other cases that were negatively affected by the misuse of informants, a conclusion Sanders scoffed at.

“We’ve written at length about other prosecutors ... we’ve detailed it in cases. And basically, the only thing we get out of this report is there wasn’t enough information to make a determination,” Sanders said. “The only way I can read that is they just weren’t willing to take on any of their other employees.”

Somil Trivedi, a staff attorney with the American Civil Liberties Union who has previously sued county officials to make public a trove of information about its use of informants dating back to the 1980s, also said the report fell far short of the needed accounting of the impact of informant misuse on a wider range of criminal cases in Orange County. In 2018, Sanders filed a motion alleging that deputies who worked for the Special Handling Unit, which managed jail informants, had testified in at least 146 criminal cases without their possible connection to the scandal being disclosed.

“This is definitely an honest and thorough appraisal of what went wrong in Dekraai. The problem is the Court of Appeals has already done this work,” Trivedi said. “There’s nothing new here, and by diving so deep into Dekraai … you can’t help but think they didn’t put that safe effort into actually discovering if there was a systemic problem.”

While the report suggested “severe disciplinary” action against the prosecutors, their decision to resign late last year largely insulated them from consequences, continuing a pattern of barely anyone facing punishment in one of the county’s largest law enforcement scandals.

Earlier this year, a Times investigation revealed the California attorney general’s office investigation into deputies at the center of the snitch scandal was woefully lacking. In the nearly four-year review, only four members of the Sheriff’s Department were interviewed. The deputies who were the target of the state’s investigation were not among them, The Times found, and no attempts were made to subpoena or compel testimony during the first two years of the probe, when it was run by Kamala Harris, now a U.S. senator.

The deputies never faced criminal charges, and all three have since resigned. The U.S. Department of Justice is still conducting a review of the district attorney’s office, but there is no timeline for when that might conclude, according to a spokeswoman for the office.