Chemerinsky: A Long Overdue Investigation

Kaitlin Washburn for Voice of OC

Orange County Central Men's jail

The announcement on Thursday that the United States Department of Justice is launching an investigation of civil rights violations by the Orange County District Attorney and the Orange County Sheriff is terrific news, but long overdue. The evidence is overwhelming that there long have been systematic unconstitutional practices by these offices. Yet, it is still unknown how many convictions are tainted and the problems still are unremedied.

Over a year ago, John Van de Kamp, the former California Attorney General, and I sent a letter to United States Attorney General Loretta Lynch urging an investigation of civil rights violations by these offices. Our letter was signed by over 25 eminent law professors and attorneys, including several former prosecutors. We stated: “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. More troubling still, this all appears to be the tip of the iceberg.”

The District Attorney’s office responded, not with an investigation, but with a press release focused on attacking me and saying that it is “unfortunate that Professor Chemerinsky, ACLU, and all of the other undersigned activists and others did not abide by Professor Chemerinsky’s ethical standards about opining about a case in such an inflammatory way without conducting due diligence.” Our 27-page letter was accompanied by a 144-page appendix, reflecting months of work. The District Attorney then created a committee to advise him, but it had no investigative power. The committee issued its recommendations in December 2015, but little has been done to implement them.

A truly independent investigation of the unconstitutional use of jailhouse informants in the Orange County jails, and the hiding of information about it, is essential and has yet to be undertaken. In March 2015, Orange County Superior Court Judge Thomas Goethals disqualified the Orange County District Attorney’s office from continuing to prosecute Scott Dekraii, who pled guilty to killing eight people at a Seal Beach hair salon. Judge Goethals found that the Orange County District Attorney’s office was illegally using jailhouse informants and unconstitutionally concealing the information from defense lawyers.

Judge Goethals’ action in disqualifying the entire District Attorney’s office is highly unusual and reflects the seriousness of the constitutional violations. The Constitution limits the ability of the government to use jailhouse informants to gain incriminating statements from an inmate. Once a criminal defendant is represented by an attorney, the government is not allowed to question the defendant without the attorney being present. The government cannot circumvent this by using others to question the defendant. Judge Goethals found that in the Dekraii case, and in others, the Orange County District Attorney’s office has been systematically using jailhouse informants to elicit incriminating statements, including by offering benefits in exchange for information and taping conversations. This is clearly unconstitutional.

Judge Goethals also found that the Orange County District Attorney’s office was violating its constitutional obligation to turn over to the defense potentially exculpatory evidence, including that which can be used to impeach prosecution witnesses. There also are allegations that sheriff’s deputies lied in court about the program and the frequency of its use.

The California Attorney General and the District Attorney appealed Judge Goethals’ ruling, but recently the California Court of Appeal, in a strongly worded opinion affirmed his decision and sharply criticized the District Attorney. The District Attorney has retaliated against Judge Goethals, using its power under California law to disqualify one judge in a case, to disqualify him in 55 of 58 murder cases that he has been assigned since February 2014, when he first found misconduct by the District Attorney’s office.

These are very serious constitutional violations that require thorough investigation. How long as this occurred? How pervasive is the problem? How many other criminal convictions might be tainted because of these constitutional violations?

The Justice Department’s announcement that it has launched an investigation as to a pattern and practice of civil rights violations by the Orange County District Attorney’s Office and the Orange County Sheriff’s Department is thus most welcome news. The investigation can provide answers to these crucial questions. Ideally, the District Attorney and the Sheriff will enter into a consent decree with the Department of Justice, like that which significantly reformed the Los Angeles Police Department. It can put into place measures to ensure compliance with the Constitution, including a monitor to provide enforcement.

At the very least, we must insist that law enforcement – police and prosecutors – comply with the Constitution. That has been absent in Orange County for too long. The Justice Department investigation hopefully will finally provide a solution.

Erwin Chemerinsky is the founding Dean of the UCI School of Law and also a founding board member for Voice of OC.

Opinions expressed in editorials belong to the authors and not Voice of OC.

Voice of OC is interested in hearing different perspectives and voices. If you want to weigh in on this issue or others please contact Voice of OC Involvement Editor Theresa Sears at TSears@voiceofoc.org

  • Shirley L. Grindle

    DA Tony Rackauckas has been a rotten apple since Day 1. He has continually shown favoritism in the individuals he prosecutes by never going after his political friends. He has ignored his responsibility to enforce violations of the County Campaign Ordinance — which resulted in his political cohorts not being prosecuted. At least Carona ended up in prison through no fault of Rackauckas/s (who had repeatedly ignored complaints about Carona’s campaign violations). It is time for Rackauckas and his sidekick Susan Schroeder to depart County government. Until they are gone, there is no possibility that things will change under their regime. There will just be more excuses.

  • verifiedsane

    This injustice and the government crimes has operated unchecked for decades. It took one rare honest judge to call it out. Where was the rest of the judiciary for all these years? The snitch scandal is just barely scratching the surface of OC public servant and court room corruption. Most of the time the judges are just another clog and participant in these criminal activities and influence peddling schemes.

    One would need to look no further than OC family/probate courts where judicial cronyism are an institutionalized and ongoing racketeering criminal practice. All these crimes are done in secret (out of sight; with no jury or public scrutiny) and under the state legislature ruse of complete judicial immunity even for the most egregious actions of a sitting judiciary agent.

    If you believe the sheriff/DA snitch scandal is disturbing (and it definitely is); I would purpose it palls in comparison of gross acts of injustice happening to thousands upon thousands of California families, individuals, and innocent victims by Judicial & public servant cronyism malfeasance happening each and everyday in OC courtrooms. It continues today because no one is really looking, cares much until it happens to them, or does anyone want to rattle the cronyism cage of this deemed sacred legal cash cow, or deal with the governmental retribution that will surely follow.

  • OCservant_Leader

    The OC Corruption is threatening the core of our Democracy.

    Have we confirmed if the “snitch tank”‘was in the medical unit? Weren’t the Feds sniffing around that unit a few years back?

  • LFOldTimer

    How soon will the BoS or even one city council or OCSD contract city grow a pair, step up to the plate and demand by public resolution for our police and prosecutors to start acting like honest sworn public trust officials rather highly paid gang thugs who disrespect our laws and have each other’s backs?

    The stink from the rotted fish is unmistakable. Judge Goethals smelled it. The host of reputable legal experts who wrote the USAG smelled it. The OC Grand Jury smelled it. The California Appellate Court smelled it. And now the Feds smell it.

    Maybe public safety political donations and endorsements have plugged the nose of the BoS and the city councils.

    Yet when it comes time to approve an OCSD pay raise or an increased OCSD budget all the complicit pols tell us we need to ‘back the badge’ regardless whether the ‘badge’ conducts itself like a common low-life street gang.

    Once again: Silence is Complicity.

    But watch them put their hands over their hearts and recite the “Pledge of Allegiance” at the start of their meetings. ha. “with liberty and justice for all”. lol.

    What happened to my country?

  • Cynthia Ward

    Tip of the iceberg is correct. In addition to DA’s cover for law enforcement, at some point someone needs to look at the many cases of misconduct in local government agencies the DA has failed to follow up on. In many cases the issues are widely reported right here in Voice of OC, and I believe in a County with a REAL District Attorney on the job, we would have had investigations in Anaheim and Santa Ana (at the very least.) Yet those who pal around with the DA get a free pass. One has to pursue their own city with civil litigation to get anywhere, and how many citizens are willing to put themselves (and their bank accounts) through that nightmare? The few of us who have tried have been abused and attacked and made examples of, so that nobody else wants to step out and take the same beating. The FPPC is limited in their enforcement, and the DA is often the enforcer for those violations anyway. The fish not only rots from the head down, it pollutes the water it is sitting in. For those who think their own home towns are immune to the stench of rotting carp, wait for it.

    • David Zenger

      “…someone needs to look at the many cases of misconduct in local government agencies the DA has failed to follow up on.”

      Ackerman illegally lobbying for his OC Fair board pals to sell the Fair – to themselves. Rackauckas passed on that – TWICE.

  • David Zenger

    Just another disgruntled, criminal coddling liberal who hates law enforcement.

    No wait. That won’t work anymore.