City News Service

Justice Department Probes Use of Jailhouse Informants in Orange County

"We have an announcement to make as a group," said Paul Wilson, whose wife was among the eight murdered in Scott Evans Dekraai's rampage at a Seal Beach salon five years ago.

The U.S. Department of Justice today opened a civil "pattern-or-practice" investigation into the Orange County District Attorney's Office and Orange County Sheriff's Department over the use of jailhouse informants. The probe is being conducted at the invitation of District Attorney Tony Rackauckas, according to the U.S. Attorney's Office.

Federal authorities said the investigation will focus on the possible use of jailhouse informants to elicit statements from inmates with legal representation -- a violation of the Sixth Amendment.

The probe will also determine whether prosecutors "systematically" violated defendants' 14th Amendment rights to due process by failing to disclose promises of leniency made to informants, with federal authorities noting that such promises could have "substantially undermined the credibility" of informants' trial testimony.

"We appreciate the district attorney's investigation to review his office's policies and practices, along with his assurance of unfettered access to documents and personnel in his office," U.S. Attorney Eileen M. Decker said. "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."

The use of jailhouse informants has spurred a major legal battle over defendants' civil rights in Orange County, contributing to the District Attorney's Office from being recused from handling the penalty phase of the trial of Scott Dekraai, the worst mass killer in the county's history.

"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 Department of Justice's Civil Rights Division.

"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." Rackauckas' office issued a statement saying prosecutors were "grateful" for the Department of Justice responding to his request for a review. "The OCDA believes at the conclusion of USDOJ Civil Rights Division's review, they will conclude that the OCDA did not engage in systematic or intentional violation of civil rights of any inmate and no innocent person was wrongfully convicted," according to the District Attorney's Office.

Orange County Sheriff Sandra Hutchens said she welcomes the review. "It is, and has been, our ultimate goal to have a jail system that is exemplary and that upholds its duty to the inmates, our staff and the people of Orange County," Hutchens said. The Orange County Criminal Defense Bar Association also welcomed the review. "We believe that an independent investigation is the key to a fair and full review of the serious allegations," said attorney Paul Meyer, who is president of the organization. "We recognize that both the district attorney and sheriff have committed to their open cooperation. It is time to move past the emotional rhetoric and examine the facts. The U.S. Department of Justice is the perfect agency to dig into this without an ulterior motive or hidden agenda."

Multiple legal scholars and leaders called on the U.S. Department of Justice in November 2015 to investigate the use of informants, including UC Irvine Law School Dean Erwin Chemerinsky, former Los Angeles County District Attorney Gil Garcetti and the ACLU. "I am enormously pleased that the Justice Department has granted review of the Orange County District Attorney and the Sheriff's Office," Chemerinsky told City News Service. "There is evidence of clear violations of civil rights abuses and this offers the chance to learn what happened and finally find a solution." In a letter to Justice Department officials in November 2015, Chemerinsky dean characterized the county's justice system as in a state of crisis.

"As of the writing of this letter, it is fair to say that the criminal justice system in Orange County is in a state of crisis: charges in extremely serious cases have been reduced or dismissed; violent crimes -- including murders -- have gone entirely uninvestigated; to date, four law enforcement officers have refused to testify in pending criminal matters, citing their Fifth Amendment privilege against self-incrimination; and at least one prosecutor has been found by a court to have given 'incredible' testimony under oath," Chemerinsky wrote in the letter to federal prosecutors last year.

"More troubling still, this all appears to be the tip of the iceberg," he added.

"Given this state of affairs, as well as the scope of the misconduct at issue, the Department of Justice is the only entity with the capacity to conduct the investigation required."

The furor stemmed from the use of an informant, who sources allege heard Dekraai make callous remarks about his killings. Dekraai's attorney, Scott Sanders, argued that prosecutors committed what attorneys refer to as a Massiah violation, meaning they illegally used a government agent to elicit information from his client while he was already represented by counsel, which is a Sixth Amendment violation.

Rackauckas' prosecutors ultimately gave up on fighting the motion but disagreed they violated Dekraai's rights. Orange County Superior Court Judge Thomas Goethals booted prosecutors from the case, ruling they had shown a propensity to back up their law enforcement partners, the sheriff's department, so they couldn't be trusted to give Dekraai a fair shake in his trial. That ruling was affirmed by the Fourth District Court of Appeal last month. "The Court of Appeal stated that the 'magnitude of the systemic problems cannot be overlooked,'" Sanders told CNS.

"It is hoped that the Justice Department's probe will help reform the system so that all Orange County residents will receive the constitutional protections to which they are entitled." Chemerinsky argued in last year's letter that the Attorney General's Office, which is conducting its own probe, cannot be trusted to be impartial. He cited the Attorney General's Office's appeal of Goethals' ruling. Sanders' efforts to investigate the jailhouse informant program has borne fruit for multiple other defense attorneys who have either gotten clients out of prison or received plea deals that substantially reduced the punishment of defendants. Some attorneys have won new trials for their clients based on allegations of the misuse of informants.

Copyright CNS - City News Service
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