The effort to sentence Dan to death would be curtailed by another murder and its unexpected repercussions on the criminal justice system in Orange County.
On October 12, 2011, Scott Evans Dekraai entered the Salon Meritage hair salon in Seal Beach—the town where Rachel Buffett had grown up. Dekraai, a forty-two-year-old former fishing boat captain with thinning hair and a salt-and-pepper goatee, had visited his ex-wife Michelle Fournier’s place of work before—and friends warned her that he could be dangerous. Embroiled in a custody dispute over their eight-year-old son, Dekraai and Fournier each accused the other of making irrational threats. Dekraai claimed that his former spouse was a verbally abusive alcoholic. Fournier described Dekraai as “bi-polar” and said that he’d pledged to kill her. After a fight with his stepfather in 2007, a restraining order had been issued, banning Dekraai from possessing firearms. By 2011, the restraining order had expired.
On this particular day, Dekraai was carrying a 9mm revolver, along with a .45-caliber handgun and a .44 Magnum. Clad in body armor, Dekraai appeared to be prepared for a shootout that he intended to survive.
There were approximately twenty people in the beauty parlor when Dekraai started firing, police said. Customers and employees tried racing into the street or hiding in adjoining businesses. In the course of two minutes, the gunman apparently managed to shoot eight people in the salon and another in the parking lot, pausing ever so briefly to reload.
Only one victim survived. The casualties included Michelle Fournier.
Police stopped Dekraai in his white pickup truck a half mile from the crime scene. He surrendered without incident and was charged with the worst mass murder in Orange County—eclipsing a 1976 massacre at Cal State Fullerton that claimed seven victims.
As with Daniel Wozniak, prosecutors announced that they were seeking the death penalty. They also planned to bring the case to trial quickly.
But Scott Sanders, the lawyer for both defendants, was determined that neither goal would be realized.
With his bookish bearing and wire-framed glasses, Sanders embodied the image of an activist attorney. A graduate of the University of Wisconsin and Emory University Law School, he’d been in the Orange County Public Defender’s Office for some two decades, as devoted to his mission of exposing what he saw as injustice in law enforcement as death penalty proponents were to imposing the ultimate punishment.
The Chicago area native believed that he was fulfilling his goal of defending the underdog. The death penalty was uncivilized, he maintained—so much so that the totalitarian regime in Belarus was the last in Europe to enforce it—and rarely did it allow the victims’ families to savor the relief that they wanted.
Generally, he reasoned, the fact that a murder suspect was sitting in the defendant’s chair gave him or her an immediate disadvantage. Since many in that position were poor, they were assigned a lawyer from the public defender’s office. While the popular assumption was that a free attorney wasn’t as talented as a private one, Sanders tried dispelling the myth by spending time with his clients and learning who they were as human beings. If he could convey that humanity—in Dan’s case, his sense of humor and taste for the arts—in court, jurors might be hesitant to sentence a defendant to death.
In 2004, Lynn Dean Johnson was about to be paroled after completing a sentence for the kidnapping and rape of an eleven-year-old girl when DNA evidence linked him to the unsolved rape and murder of a nineteen-year-old restaurant hostess in 1985. Prosecutors demanded the death penalty. But Sanders and his co-counsel, Lisa Kopelman, successfully argued that a better sentence was life without the possibility of parole.
Some believed that he’d saved an incorrigible with nothing to contribute to society. However, Sanders was proud that he’d managed to prevent the government from taking a life.
Another client, Jamie Balint, received the same penalty after he fatally stabbed his mother in December 2003. But Sanders did not consider this outcome a triumph. The lawyer had tried to convince jurors that Balint—who’d claimed that a prophet instructed him to slay his mother—was schizophrenic, delusional, and not guilty by reason of insanity.
While victims’ families were quick to highlight the rights that accused killers seemed to enjoy, Sanders attacked every capital case with the assumption that the defendant was going to die from lethal injection—particularly in Orange County, where jurors were often upper-middle-class suburban retirees.
By Sanders’ estimation, detectives and prosecutors were allowed unfair advantages. He believed that defense attorneys had the right to examine any evidence that prosecutors intended to introduce at trial. “There inevitably has to be trust in the system, that we can have access to everything they know,” he stated. He also argued that it was necessary for some type of outside monitor to ensure that there were ramifications for misconduct from police agencies and prosecutors.
To Sanders, no one deserved a fair hearing more than the most maligned inmates in the criminal justice system. While he could never condone the actions of a person like Dan Wozniak, the attorney was convinced that there was a nobility in defending him. Sanders had seen too many cases of innocent people being manipulated into confessing to the most shocking crimes. They could only be exonerated, he deduced, if they were alive when the decisions were reversed.
Within the district attorney’s office, though, the lawyer was seen as not a voice of the powerless but an obnoxious irritant whose attacks contained an element of personal venom.
When he was chosen as Orange County’s public defender of the year in 2014, prosecutors were outraged. How could Sanders be celebrated for his courtroom achievements, they questioned, when he’d done everything to prevent the Dekraai and Wozniak cases from coming to trial?
After submitting a 505-page motion alleging prosecutorial misconduct in the Dekraai case, for instance, Sanders announced that he was too busy defending the accused mass murderer to concentrate on the motions vital for Dan Wozniak’s upcoming trial.
“The situation is beyond awful,” Judge James Stotler despaired. “It’s beyond awful, awful. It’s awful, awful, awful that we cannot get this case to trial.”
Sensitive to how the relatives of the Seal Beach casualties felt, Steve Herr resented that the system allowed an attorney to cultivate feelings of resentment toward people anxious to see justice served for their loved ones first.
“They literally pit victims against victims,” he said.
To senior deputy district attorney Matt Murphy, it was Sanders who was exploiting the flaws in the system. “These are dirty tactics,” the prosecutor said in court, implying that the defense attorney was deliberately taking an excessive amount of time with his motions.
“If I could clone myself or find more hours in the day, I’d do it,” Sanders shot back.
It took close to three years before Dekraai pleaded guilty to the murders of the six women and two men in the beauty parlor. But a judge ruled that the district attorney’s office had engaged in misconduct and ordered that the California Attorney General’s office now handle the penalty phase of the case—whether the defendant would receive life imprisonment or lethal injection. The circumstances of the Wozniak case were completely different, observers noted, and it appeared that the prosecution team would remain in place.
Although prosecutors and defense attorneys often maintained back-channel communication, Sanders and Murphy refused to even engage in small talk in the courtroom during Dan’s hearings, forcing Tracy LeSage, the second public defender, to act as a liaison to the district attorney’s office.
In front of Judge Stotler, Murphy regularly accused Sanders of procrastinating while the defense lawyer claimed that the senior deputy district attorney was trying to embarrass him. During one tense exchange, Murphy said that Sanders was smirking about the delays, triggering yet another confrontation.
“You want me to take a recess so you guys can cool off?” the judge queried.
At a hearing in August 2014, Stotler announced that he needed more time to read documents submitted by both the defense and the prosecution before setting a trial date. Suddenly Steve and Raquel began waving their arms and motioning at themselves. They wanted the judge to know that they had something to say, too.
With his jaw clenched, Steve told the judge about the effort he made to ensure that Sam’s head was sewn back on to his torso, allowing the war veteran the dignity of being buried in his Army uniform. Steve had made these types of statements before to the press. But now he wanted it in the official record.
“How much longer do we have to sit here and listen to this crap?” he demanded.
Outside the courtroom, Raquel pleaded for the adjournments to end. “You never forget your child,” she told the Daily Pilot. “But I would like as much as possible to go on with my life.”
Ironically, the Herrs would have been able to enjoy that option if they were willing to agree to a single condition. Sanders had offered to persuade Dan to plead guilty and immediately begin serving a life sentence without the possibility of parole, as long as the prosecution no longer sought the death penalty. Steve flatly refused to acquiesce.
It didn’t matter that Dan was willing to publicly admit his guilt, Steve reasoned. Neither the defendant nor his attorney deserved any kind of special consideration.
“People can adapt,” Steve told KFI AM radio. “I don’t want [Dan] adapting to prison. I don’t want him getting a job there.… I want him dead.”
* * *
The first official execution in the state of California occurred in 1878, when four Native Americans in San Diego were placed in front of a firing squad for conspiracy to commit murder. Over the next ninety-four years, the state would impose the death penalty on 709 inmates until both the California and U.S. Supreme Courts concluded that the practice violated, respectively, the state and national constitutions.
With the advent of electricity, Thomas Edison argued that his method of direct current (DC) electrification was safer than the alternating current (AC) favored by the Westinghouse Electric Company. To demonstrate this, the Edison Company began using AC to electrocute animals. The displays had an unintended impact on law enforcement. If electricity could kill animals, it was deduced, why not use it to neutralize the most reprehensible criminals in society? In 1890, after New York State dismantled its gallows, William Kemmler, a convicted hatchet murderer, became the first American to die in the electric chair at upstate Auburn Prison.
In California, though, authorities were partial to the gas chamber. Between 1937 and 1967, 190 men and 4 women were killed by lethal gas in San Quentin’s execution room.
But after the Supreme Court ruling in 1972, 107 California death sentences—including those of notorious inmates such as death cult leader Charles Manson and Sirhan Sirhan, the assassin of presidential candidate Robert Kennedy—were commuted to life imprisonment. The ban lasted four years before the Supreme Court reinstated the death penalty. At San Quentin, the execution chamber would be redesigned so inmates could be administered lethal injections.
As a rule, Californians supported this system. In 1978, more than 70 percent of voters in the Golden State approved a new death penalty law. Nonetheless, very few convicts would receive the fatal punishment—just thirteen by 2015. Appeals—it was noted by both sides—frequently hampered the process by decades.
In 2012, the state’s longest-serving death row inmate, Douglas Stankewitz—twice sentenced to die for kidnapping and shooting a twenty-two-year-old woman in 1978—had his sentence converted when a federal judge ruled that jurors should have been told about his mental health problems, as well as his abusive childhood.
By that point, executions in the state had been on hold for close to seven years, as death penalty opponents challenged lethal injection methods.
Steve followed the controversy closely, particularly a 2012 ballot initiative that would have repealed California’s death penalty. The punishment had been banned in other states by this point, and this was the first chance Californians had to vote on the issue in more than three decades.
With 727 inmates on death row in California—nearly a quarter of the more than 3,100 awaiting the death penalty around the United States—a repeal would have had national implications. Law enforcement officials, three former governors, and victims’ rights groups loudly campaigned for the state’s citizens to block Proposition 34, the plan to convert all lethal injection sentences in the Golden State to life without parole.
Steve had only seen a portion of the crime scene photos from the Liberty Theater. But he’d walked through the attic and had an acute sense of what Sam had suffered in the final moments of his life. Plus, Steve had been the one who’d first found Juri’s blood-soaked corpse in his son’s apartment. As debate swirled over Proposition 34, the ex-Marine fantasized about going into the police evidence folder, removing the pictures, and traveling the state, showing voters the graphic images as a means of convincing his fellow citizens—one by one—that the death penalty should never be abolished.
“I don’t care what anybody says,” he said. “Look what that bastard did in Colorado.” He was talking about James Eagan Holmes, who’d opened fire during a midnight showing of The Dark Knight Rises in Aurora, Colorado, slaughtering two dozen and wounding seventy filmgoers. “Come on! Does he deserve to live when he took the lives of so many other people, and permanently injured so many others? There’s just bad people out there. Why mess around?”
In the end, Proposition 34 lost by about six percentage points, muting the aspirations of death penalty foes. But the battle continued. In 2014, a federal judge in Orange County ruled that the sentence violated constitutional prohibitions of cruel and unusual punishment.
Most sentences only led to “an inordinate and unpredictable period of delay preceding [the] actual execution,” said U.S. District Judge Cormac J. Carney, in response to a petition filed by convicted killer Ernest Dewayne Jones, sentenced to death in 1995 for the rape and murder of his girlfriend’s grandmother. Those who are executed, Carney added, “will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary.”
By this point, Steve’s primary goal was simply seeing Dan—and whichever accomplices he might have had—brought to trial. Still, Steve wasn’t going to be pacified until a judge pronounced a death sentence.
The entire extended family supported Steve’s intransigence. “[Dan] doesn’t deserve to live,” said Steve’s brother-in-law Mike Nortman. “That’s the most frustrating thing, that he’s still living and breathing and watching TV.”
As a gay woman with progressive leanings, Sam’s cousin Leah Sussman had been opposed to capital punishment before the murders. As the family grieved, her opinions changed. “If you’d been in our family’s situation,” she said, “you would understand. I can’t imagine if something like this ever happened to my daughter.”
Even if Dan was sentenced to death, she imagined his attorneys extending the appeals process for decades. But she vowed that, in the event that Steve and Raquel didn’t live long enough for the execution of the man accused of killing their son, she’d continue the fight for them.