It was November of 2014 when Orange County Deputy Public Defender Scott Sanders came to Davis to talk about the Orange County jailhouse informant program. On Sunday, the issue which has continued for these years reached 60 Minutes.
In the segment of 60 Minutes, correspondent Sharyn Alfonsi interviews a longtime informant, Mark Cleveland, about his role as informant. There are some important revelations here, as Mr. Cleveland first of all explains how he was deployed, what he got for it, and the fact that he directly communicated with OC District Attorney Tony Rackauckas.
But, while those revelations are interesting and confirm the story that has emerged through a series of court hearings and news articles, the truly astounding part of this is that Mr. Rackauckas remains in denial.
Mr. Cleveland told Ms. Alfonsi, “I was placed there.”
Ms. Alfonsi says on camera, “What Cleveland is describing is unconstitutional. The integrity of the justice system is based on everybody following the rule.” It is one thing for an inmate to hear and pass on incriminating information to prosecutors. “But inmates cannot be planted and directed to gather information from someone who’s already been charged with a crime.”
Making the practice even more problematic, in the case of Scott Dekraai, represented by Scott Sanders in a mass murder case, is that the DA’s office tried to keep the identity of the informant confidential – which meant that they tried to use his information without allowing the defense to confront that information.
The DA’s office has always denied knowledge of the informant program, putting the blame on the sheriff’s department that runs the jail. But Mr. Cleveland showed 60 Minutes his meticulous handwritten notes he turned over to the prosecutor and said he would continually contact the DA’s office to report on his activities.
“I could get on the phone anytime I want, night or day,” he said.
Of course, Tony Rackauckas disputes this account, but some of his responses border on being farcical.
Asked about how we should take these claims, Mr. Rackauckas stated, “I think you should assume you’re talking to an informant, and if he’s talking, he’s probably lying.”
But think about that for a second – first of all, he’s admitting that informants are not reliable and, yet, his office uses them all the time. Furthermore, what is Mr. Cleveland’s incentive to lie now? After all, he acknowledged getting years taken off his sentence (maybe 40 years or more) in exchange for the information – but in this interview, he gets no such accommodations.
Instead, Mr. Rackauckas and his office say there is no jail informant program in the county and insinuated this is conspiracy theory.
He insisted that that informants were rarely used, that “they are among the more unreliable people around.”
But what Mr. Cleveland said is that he and the other informants were rarely called to testify – instead, he said, “they were using them to get plea bargains on them.”
The DA, under public and political pressure, appointed a Blue Ribbon panel.
Ms. Alfonsi reads the report which says the DA’s office has a “must-win mentality,” and describes the office as a “ship without a rudder.” They said, “There’s been a failure of leadership.”
In an astonishing response, the DA says that “it’s interesting they did say those things and they put that in the writing. And– but I talked to them personally and they really didn’t have that to say personally.”
He added, “It’s getting around that there’s some kind of a conspiracy or there’s some kind of– or there’s some kind of willingness to violate people’s rights or to not give people a fair trial, that’s a false narrative. That’s just– that’s simply not true.”
Perhaps the most stunning thing is when Tony Rackauckas, in talking about the claims made by Mr. Sanders, said that “believe me if those things were true, we should be in jail, frankly.”
He then stated that his office had not withheld evidence.
Ms. Alfonsi said, “He told us that, even after the judge disagreed.”
The judge instead ruled that jail deputies, working for the DA’s office, “intentionally lied or willfully withheld material evidence” about the secret informant information program.
In February, Judge Goethals rebuked Orange County Sheriff Sandra Hutchens as she continued to deny wrongdoing. Judge Goethals took the step of reading a series of internal OCSD memos and then recited remarks the sheriff made to local news stations, denying the existence of the informant program.
“The deputies in the jail are not conducting investigations … we don’t have our folks working informants,” Judge Goethals said, quoting Sheriff Hutchens repeatedly, after each memo that clearly offered evidence to refute her claim.
“The train has left the station on this, folks,” Judge Goethals said in February. “The debate is over.”
But not for the DA’s office, apparently. Mr. Rackauckas continued to deny involvement and the depth of involvement in this scandal until the end of the interview.
Among the most stunning things was that he called snitches “liars,” even as he and his office continues to use them. Second was his suggestion that the Blue Ribbon Panel whispered to him that what they wrote was not true. Third was his continued denial of coordinated movement of informants – even as documents and sheer coincidence and other testimony would suggest otherwise.
But still, for me, the most appalling thing was his comment about “if those things were true, we should be in jail, frankly.”
Of all the things he says, that may be the one that haunts him the most. That, of course, will depend on whether the attorney general’s office has any backbone.
—David M. Greenwald reporting