US Dept. of Justice Probe of Orange County DA and Sheriff Concludes Agencies Violated Constitutional Rights of Incarcerated

Orange County Sheriff Don Barnes, pictured in May, Gettyimages

By Cres Vellucci
The Vanguard Sacramento Bureau Chief

ORANGE COUNTY, CA – The U.S. Department of Justice Civil Rights Division Thursday released the results of a multi-year investigation of the Orange County District Attorney’s Office and the Orange County Sheriff’ Dept., concluding “there is reasonable cause to believe (the agencies) engaged in a pattern or practice of conduct that deprived individuals of rights protected by the Sixth and Fourteenth Amendments.”

The DOJ report added, “This pattern or practice included OCSD’s coordinated placement of custodial informants near represented defendants in homicide and gang-related prosecutions while they were housed in the Orange County Jail in order to elicit 59 incriminating statements about their charged crimes in violation of the Sixth Amendment.”

The highly critical report, which focused on custodial informant activity from 2007 through 2016, noted “the informant controversy continues to undermine public confidence in the integrity of the Orange County criminal legal system. Neither agency has implemented sufficient remedial measures to identify criminal cases impacted by unlawful informant activities or prevent future constitutional violations.”

“Our investigation revealed that the custodial informant program operated for years and that OCSD employed elaborate systems to cultivate, manage, deploy, and reward informants in the jail. The practice that formed the backbone of the program—intentional placement of informants with targeted defendants—was systemized and managed by the Special Handling Unit and concentrated in particular parts of the jail,” the DOJ added in the 60-page report.”

The custodial informant program surfaced in 2014 during OCDA’s prosecution of Scott Dekraai for mass murder. People v. Dekraai involved “multiple rounds of evidentiary hearings about the custodial informant program over the course of three years. Dozens of witnesses from OCDA and OCSD testified about the program. The hearings resulted in the court-ordered recusal of OCDA from the Dekraai case and, ultimately, the dismissal of the death penalty from consideration,” said the DOJ.

That, it said, led to then-Orange County District Attorney Tony Rackauckas asking the U.S. DOJ to conduct an investigation of OCDA’s custodial informant practices and offered the agency “unfettered access” to documents and personnel at OCDA.

“We focused our investigation on: (1) whether OCDA and OCSD used custodial informants to elicit incriminating statements from individuals in the Orange County Jail, after those individuals had been charged with a crime, in violation of the Sixth Amendment; and (2) whether OCDA failed to disclose exculpatory evidence about those custodial informants to criminal defendants in
violation of the Fourteenth Amendment.”

After dozens of interviews, including 17 with OCDA prosecutors about specific cases, the DOJ concluded that, “custodial informants in the Orange County Jail system acted as agents of law enforcement to elicit incriminating statements from defendants represented by counsel, and that for years OCSD maintained and concealed systems to track, manage, and reward those custodial informants.”

The DOJ report added, “The evidence also reveals that OCDA prosecutors failed to seek out and disclose to defense counsel exculpatory information regarding custodial informants. We therefore have reasonable cause to believe that this pattern or practice of conduct by both agencies resulted in systematic violations of the Sixth and Fourteenth Amendments.”

The probe noted the “Special Handling Unit documented its informant cultivation and management in secretive jail systems such as TRED records and the Special Handling Log,” and emphasized that “OCDA failed to disclose material, favorable evidence about informants to defendants in violation of the Fourteenth Amendment. These disclosure failures allowed the custodial informant program in the Orange County Jail to operate so widely and for so long because so much of its existence remained hidden from prosecutors and certainly from criminal defendants.”

The investigation pointed the finger to much of the wrong-doing at the DA’s Office, remarking, “OCDA prosecutors often failed to investigate the backgrounds of custodial informants in their cases, missing key discovery that was in the hands of law enforcement, and even missing information from their own tracking system, the Orange County Informant Index.”

DOJ pointed out that “Prosecutors failed to inquire of OCSD how and why multiple or repeat custodial informants were surfacing
in their cases. And when faced with overwhelming evidence of OCSD’s informant program during the Dekraai proceedings, OCDA continued to resist making disclosures in that case and, in other cases, simply dropped informants from their witness lists to avoid surfacing Massiah and Brady problems.”

“Even now,” the DOJ added in its report conclusion, “OCDA has failed to undertake a sufficient inquiry into the scope of the custodial informant program in Orange County.”

However, DOJ stated, “We are encouraged by the steps that OCDA and OCSD have taken to prevent Sixth and Fourteenth Amendment violations from occurring in the future. We look forward to working with OCDA and OSCD on identifying the further reforms that need to be developed and implemented.”

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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