Public defenders usually labor in obscurity, their efforts on behalf of the indigent one of the less glamorous components of the criminal justice machinery. But lately, Scott Sanders, an intense, cerebral 49-year‑old assistant public defender with a thick Chicago accent, has become an unusually high-profile figure— and a thorn in the side of local law enforcement. After he was appointed to represent Scott Dekraai—accused of killing eight people at a Seal Beach hair salon in 2011 in the worst mass murder in Orange County history—Sanders unearthed sheriff ’s department records suggesting law enforcement had for decades concealed a jailhouse informant program from defense attorneys, violating its legal obligation to turn over favorable evidence.
In a bombshell ruling in March 2015, Superior Court Judge Thomas Goethals agreed with Sanders that the government had used an informant, Fernando Perez, to illegally elicit statements from Dekraai, even moving Perez to an adjacent cell to make it easier for them to talk. While informants can report what they overhear, law enforcement is prohibited from making a target of defendants who are represented by an attorney. To sanction the misconduct, Goethals removed the district attorney’s office from the case and assigned the state attorney general to handle future proceedings, which, with Dekraai having pleaded guilty, are limited to whether the defendant should get the death penalty.
Sanders’ revelations have caused other murder cases to unravel. In November, Superior Court Judge Richard King threw out the firstdegree murder conviction of Eric Ortiz, citing questionable informant testimony. At his retrial in March, from which that testimony was excluded, a jury deadlocked 10-2 in favor of acquitting him.
“Is Scott Sanders the most polarizing man in Orange County?” The Orange County Register has asked. At a recent Register forum on the informant scandal, Sanders had a tense faceoff with District Attorney Tony Rackauckas as Sheriff Sandra Hutchens sat uncomfortably between them.
Sanders moved west in 1993 to pursue his legal career and now lives in Long Beach with his wife. He recently sat down with Orange Coast to discuss his work, the informant scandal, and its implications for Orange County—and beyond.
How do you feel about the attention you’ve attracted?
I’m a public defender. I’m not seeking business. I want my legacy to be what every public defender wants—good work for your clients—and here we have a chance to touch more clients. Publicity doesn’t do anything, it doesn’t further any objective I have. But it’s important for the world to understand what’s going on here. It doesn’t have to be my story. It’s not my story. It’s really the story of what’s gone on before me and what will go on after me.
So why take on this issue?
I know this is a once-in-a-lifetime moment. Usually, you’re working case by case. Our office has a chance to really push to bring justice to a lot of cases here. It just goes so far beyond informants. If you aren’t scrupulous in your disclosure with informants … what other corners will you cut to bring convictions?
What makes informant testimony so important?
There’s study upon study about how incredibly compelling informant testimony can be. … They testify, “I’m not looking for a benefit from law enforcement.” So you have jurors going, “Well, I’ve heard a confession from a guy who has nothing to gain and isn’t looking for anything. That’s perfect.” And it fills gaps in cases. Informants are the ones who fix problems.
Tell me about Fernando Perez, the informant in the Dekraai case.
He went to my other client, (convicted double-murderer) Daniel Wozniak, and got a statement from him, another capital defendant, a year earlier and in between all he did was inform. The sheriff’s department said his final contact, with Dekraai, was all a coincidence. Dekraai just happened to stumble upon him in side-by-side cells in a system that has more than 5,500 inmates? It’s astounding logic. … I’m going to go with the odds.
Judge Goethals originally ruled against you after weeks of hearings where you questioned sheriff ’s deputies. What got him to change his mind?
Every day, I’m asking deputies, “On this case, why was (this informant) moved to another cell?” They’re basically answering, “I don’t know, it’s so long ago. There’s lots of reasons.” We later find out there are these records (known as treads) to explain why people are being moved. Deputy (Ben) Garcia, one of the key players, admitted he had read the treads for Perez and Dekraai before he testified the first time. So Goethals is going, “You weren’t being honest, deputies, in pretending you didn’t even know a place to look for answers.” I also found a search warrant in a case in which another key deputy, Seth Tunstall, is writing about his duties and says they involve developing informants. He cultivated and supervised numerous informants. So there was an organized informant program in the jail. I’m going, “Oh my goodness.” You might get your good moments in the course of a career, but this almost feels fictional at times.
How do you think you’re perceived by the district attorney’s office?
They’d prefer that I go away or had never existed.
At the recent Register forum, Rachauckas again insisted his office had not engaged in misconduct. And they are appealing their removal from the Dekraai case. What do you make of that?It’s kind of frightening.
It’s kind of frightening. It should be frightening to people who care about criminal justice. They always tell themselves: “We got the right guy, and if we made a mistake, it was unintentional. But it doesn’t change what the outcome should have been.” Prosecutors can do that in every case—say, “We got it right.” That’s why the Ortiz case is so important. It shows what happens when you take the informant out of the case.
It wasn’t a representative sample of the Orange County population, but I noticed at the forum that you got the loudest applause.
This is a county that’s very pro-law enforcement, and all you can do is hope that people think about how they want their justice system to work. … Do you want all the evidence? Do you want it to be fair? Hopefully people, little by little, say, “I don’t like this.” And it is a stain. Orange County’s justice system right now is certainly not viewed as a bright light.
How many cases could be affected by the informant scandal?
You’ve got to look at every informant case pretty much in the history of Orange County if the defendant is living right now. There’s no moral or ethical reason for believing that defendants should not have a chance to revisit all of this. We know that information wasn’t turned over to the defense. It could be hundreds of cases for sure. There’s a lot at stake here.
So people convicted in Orange County are sitting in prison right now who might have a chance to reopen their cases?
If you learned about this and you’re sitting in a prison, you should be asking to have counsel appointed to help you.
Dekraai is still facing a possible death penalty. If Perez’s testimony is excluded from the penalty phase, can you still make an issue out of the informant program?
I think this issue should be raised in every death penalty case in Orange County right now. In the Wozniak trial, our argument was you can’t trust the DA’s office to turn over any favorable penalty phase evidence. The history here shows you shouldn’t have the death penalty in Orange County. It’s too final; there’s no coming back from it. There’s enough here to really doubt that all favorable evidence has been turned over related to death penalty cases. This is a completely trust-based system. What happens when you have reasons not to trust it anymore?
So there’s plenty more work to be done?
I could work my entire lifetime on this and I won’t get there, because it’s not all just sitting out there. You’ve got to press and press and analyze. I work in a job where there are different assignments. It’s not likely that I’ll be able to just work on this throughout the rest of my career, but it’s important that people be working on it.