On Thursday, the US DOJ opened a civil pattern-or-practice investigation into the Orange County District Attorney’s Office and the Orange County Sheriff’s Department. The investigation will focus on allegations that “the district attorney’s office and the sheriff’s department systematically used jailhouse informants to elicit incriminating statements from specific inmates who had been charged and were represented by counsel, in violation of the Sixth Amendment.”
Additionally, the investigation will seek to determine “whether the district attorney’s office committed systematic violations of defendants’ 14th Amendment due process rights under Brady v. Maryland, a 1963 Supreme Court case, by failing to disclose promises of leniency that would have substantially undermined the credibility of the informants’ trial testimony.”
Orange County District Attorney Tony Rackauckas requested that the Justice Department review his office’s informant policies and practices and offered unfettered access to documents and personnel.
In 2014, Orange County Deputy Public Defender Scott Sanders came to Davis to discuss a case he had been dealing with that was about to become a national story. In a death penalty case where the defendant had already admitted guilt in the guilt phase, the Orange County Sheriff’s Department used jailhouse informants to extract additional information from Scott Dekraai and other inmates, and then neither the sheriff’s department nor the OCDA’s office disclosed this material to the defense.
Mr. Dekraai pleaded guilty in 2014 to killing eight people in a shooting at a hair salon in Seal Beach in 2011. His attorney, Mr. Sanders, has attempted to get the state to remove the death penalty.
Orange County Superior Court Judge Thomas Goethals, while originally downgrading the intent of the sheriff’s deputies, determined that they either lied or withheld the truth when they failed to disclose their system and web of jailhouse informants in jails.
The misconduct was so egregious that he removed the OCDA’s office from the penalty phase of the case and assigned it to the Attorney General’s office. The AG’s office appealed, but in a ruling last month, by a 3-0 vote, the 4th District panel ruled unanimously to uphold the decision.
Earlier this year, the panel of legal experts chosen by the DA released a report criticizing the OCDA’s Office for a “failure of leadership.”
“A systematic failure to protect the right to counsel and to a fair trial makes criminal proceedings fundamentally unfair and diminishes the public’s faith in the integrity of the justice system,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Civil Rights Division.
She added, “Our investigation will examine the facts and evidence to determine whether the district attorney’s office and sheriff’s department engaged in a pattern or practice of violating these rights. We are grateful to District Attorney Rackauckas for the unrestricted access he has offered to provide.”
“We appreciate the District Attorney’s invitation to review his office’s policies and practices, along with his assurance of unfettered access to documents and personnel in his office,” said U.S. Attorney Eileen Decker of the Central District of California. “We are confident that this investigation, and the cooperation being offered by the Orange County District Attorney’s Office, will help restore public confidence in the integrity of the Orange County criminal justice system.”
In a statement, DA Rackauckas and Sheriff Sandra Hutchens said that they would cooperate with the probe that Mr. Rackauckas called for. Mr. Rackauckas said he would “provide all needed documents and information.” He added that he expects Justice officials will find that his department “did not engage in systematic or intentional violation of civil rights of any inmate and no innocent person was wrongfully convicted.”
But the December 30 report concluded that the Orange County DA’s Office “functions as a ship without a rudder.” The office, they wrote, “suffers from what is best described as a failure of leadership.
“This failure appears to have contributed to the jailhouse informant controversy,” the report concluded. “The management in the office was unaware of the caseloads, use of jailhouse informants, and discovery challenges of Deputy District Attorneys in the Target, Gang, and Homicide Units.”
The report added, “The lack of oversight of these serious cases led to repeated legal errors that should have been identified and rectified by management long before the problems reached the current scale. Additionally, the lack of oversight by management at all levels has resulted in implementation of inconsistent procedures and practices.”
The report from the panel led the DA to write to Attorney General Loretta Lynch last January to request the federal inquiry.
The appellate court reached a similar conclusion when it ruled that the judge’s recusal of the DA’s office from the death penalty portion of the Scott Dekraai case was justified.
The court found in its ruling that “the recusable conflict of interest, a divided loyalty, is based on the OCDA‟s intentional or negligent participation in a covert CI program to obtain statements from represented defendants in violation of their constitutional rights, and to withhold that information from those defendants in violation of their constitutional and statutory rights. The conflict here is ‘real,’ it is ‘grave,’ and goes well beyond simply ‘distasteful, or improper’ prosecutorial actions.”
Therefore, the court found that the trial court’s recusal of the DA’s office “was a necessary step to ensure Dekraai’s personal right to a fair penalty trial.”
If the investigation finds that the rights of defendants were routinely violated, there is a likelihood of the imposition of a consent decree on the county, much like we have seen in cases of police departments that have consistently run amuck. They would then require changes and appoint a monitor to track progress.
—David M. Greenwald reporting