An appeal was filed Monday in response to the dismissal of a taxpayers' lawsuit against the Orange County Sheriff's Department and District Attorney's Office regarding the so-called snitch scandal involving the use of confidential informants in the county's jails.
The American Civil Liberties Union-led lawsuit, whose plaintiffs include a relative of two victims of mass killer Scott Dekraai, was filed in April of last year, but was tossed out in February by an Orange County Superior Court judge who ruled that the plaintiffs lacked standing to sue.
Orange County Superior Court Judge Glenda Sanders also raised concerns about separation of powers issues.
"The law is clear that none of the Superior Court's concerns -- plaintiff's requested prayer for relief, the potential scope of discovery in the case, the alleged availability of relief in underlying criminal cases, and prosecutorial discretion -- is an appropriate basis for demurrer,'' the ACLU's attorneys argue in the appeal.
"And the Superior Court's vague concern that taxpayer standing would impinge on prosecutorial discretion was unfounded, as defendants have no discretion to violate the law.''
In its suit, the ACLU sought a monitor to oversee sweeping changes in the use of informants -- a move that typically arises from civil actions filed against law enforcement agencies by the U.S. Department of Justice.
The Justice Department announced in December 2016 that it had opened a civil "pattern or practice" investigation into the county's use of jailhouse informants, and that probe is ongoing.
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District Attorney Todd Spitzer has criticized his predecessor, Tony Rackauckas, for the way he handled the informant scandal, and said he is trying to negotiate a deal to end the probe.
Spitzer told City News Service on Monday that ACLU attorney Brendan Hamme met with him and Assistant District Attorney Shawn Nelson after Spitzer was elected last November to discuss the lawsuit.
"I said, 'Give me a list of the things you want to see,' and he said, 'We don't do that,'"Spitzer said. "I'm always willing to meet with them, but I make a very simple request -- they need to provide in writing the principles they're trying to achieve and the remedies they're looking for. I need to understand what they want."
The ACLU doesn't like to present a list of demands before a meeting, Hamme told CNS.
"It can stifle the negotiation process before it can begin," he said, "whereas if it's a product of a free-flowing conversation, it's easier to create the buy-in."
Spitzer maintains that the lawsuit is unnecessary to achieve reform.
"I was elected in light of the fact that there was misconduct by my predecessor," he said. "The bottom line is I am the monitor (the ACLU is seeking). People elected me to clean up this place and fix it up."
Spitzer noted that he pushed for extra funding in the annual budget for a conviction integrity unit.
"Things are in progress. We're working on these things every day as we speak," he said.
But Hamme pointed out that county attorneys argued against the suit after the meeting with Spitzer.
The agencies "continued to argue there is no systemic informant program," Hamme said. "The OCDA's office has always seemed to double down on the opposition. But obviously we welcome further conversations."
Hamme also was not impressed with Spitzer's reforms.
Spitzer's informant policy "is identical in every way but one to Tony Rackauckas' policy," Hamme said, adding that the former D.A. also had a conviction integrity unit and a chief ethics officer.
"So it seems as though the quote-unquote reforms Todd Spitzer is making are not significant reforms at all, but a repackaging of what existed under his predecessor."
Hamme also criticized Spitzer for leaving much of the leadership in place from Rackauckas' regime, including at least one prosecutor on the Dekraai case who was promoted.
The snitch scandal erupted in 2014 when Dekraai's attorneys argued an informant was placed next to their client to elicit damning evidence against the former tugboat captain, who ultimately pleaded guilty to gunning down his ex-wife and seven other people at a Seal Beach beauty salon in October 2011.
He was sentenced in September 2017 to life in prison without the possibility of parole after an Orange County Superior Court judge took the death penalty away as an option for prosecutors based on the claims of misconduct.
The appellate court affirmed that ruling in November 2016.
The ACLU lawsuit alleges three decades of systemic corruption in the use of informants, citing not only the Dekraai case but the capital case against Daniel Wozniak, which Dekraai's attorney, Scott Sanders, also worked on.
As Sanders did in his representation of Dekraai and Wozniak, the ACLU attorneys claim sheriff's deputies would place snitches in disciplinary isolation with targets of investigations to coerce confessions or inculpatory statements that would be used against them at trial.
That is illegal if a defendant is represented by an attorney at the time.
The ACLU attorneys argue that the constitutional abuses continue and cited one of Sanders' current cases.
