Investigating OC Law Enforcement: Orange County’s DA and Sheriff Are Under Rare Scrutiny

Jeff Antenore for Voice of OC, and pool photo by OC Register

Orange County Sheriff Sandra Hutchens (left) and District Attorney Tony Rackauckas.

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Orange County’s top two law enforcement agencies, the District Attorney’s Office and Sheriff’s Department, are under extremely unusual scrutiny from state and federal authorities over the use of jailhouse informants.

The question now is, what, if anything, will result from the investigations.

“Looking into a prosecutor’s office is very rare,” said Peter Joy, a legal ethics expert and law professor at Washington University School of Law in St. Louis, Mo.

“I’m not aware of any other time that there’s been a [U.S. Department of Justice] investigation into – and this is both the prosecutor’s office and Sheriff’s [Department] – into their use of jailhouse informants.”

Two former federal prosecutors agreed.

“It’s quite rare, if it’s ever happened before,” said David Slansky, who worked as an assistant U.S. attorney in Los Angeles and now teaches criminal law at Stanford. “It’s not uncommon to see scandals in law enforcement to be associated with the use of informants. But I would say that the scale and the [systemic nature] of the allegations here are unusual.”

“Typically you think of prosecutorial misconduct as a one-off, a single prosecutor who stepped outside the bounds,” said Heidi Rummel, who prosecuted police misconduct for the U.S. Attorney’s office in Los Angeles and now teaches at USC.

“I can’t think of another example where…two different agencies (the U.S. Dept. of Justice and state Attorney General) felt the need” to investigate the “policies and practices in the office.”

Sheriff Sandra Hutchens and her chief spokesman declined to comment on the probes.

“We are going to let the investigations take their course and will not be making any statements while the investigations are ongoing,” said the spokesman, Lt. Lane Lagaret. He formerly was in the sheriff’s unit that worked jailhouse informants and testified about it in court Thursday.

Court rulings found a pattern of Orange County prosecutors and sheriff’s officials abusing their power in an effort to win criminal cases, culminating in a November ruling from a state appeals court.

In the appeals court decision, the justices unanimously ruled DA and Sheriff officials repeatedly violated defendants’ constitutional rights through an illegal jailhouse informants program. The defendants and their lawyers weren’t told the jailhouse informants were used to gather information against them.

“The magnitude of the systemic problems cannot be overlooked,” the justices stated.  They upheld a lower court ruling that found the DA’s office couldn’t be trusted to prosecute Scott Evans Dekraai, who had confessed to the deadliest mass murder in county history – and kicked the entire DA’s office off the case.

The state Attorney General now is prosecuting Dekraai, who has been convicted, in the penalty phase of his trial that determines whether he will spend life in prison or be sentenced to death. And disclosures in the Dekraai case about use of jailhouse informants led to convictions for murder or other major crimes in six unrelated cases being overturned.

In December, the U.S. Department of Justice announced a federal civil rights investigation into the DA’s office and Sheriff’s Department’s use of informants. That came in addition to two other investigations – by the California Attorney General’s Office and Orange County Grand Jury – into what’s known as the “jailhouse snitch scandal.”

The state and federal investigations are still ongoing, while the grand jury is scheduled to release its civil findings Tuesday.

According to legal experts, the results of the federal investigation could be affected by U.S. Atty. Gen. Jeff Sessions statements that the Justice Department will pull away from civil rights investigations of local law enforcement. In addition, the results of the state and grand jury probes, experts said, will depend on how deep and thorough they are. The quality of grand jury reports can vary depending on the expertise and commitment of county residents who volunteer each year to serve on the panel, as well as the legal guidance jurors are given.

U.S. Justice Department

DA Tony Rackauckas’ chief of staff Susan Kang Schroeder said in a telephone interview the DA has fully cooperated with the federal civil rights investigation

She said the federal probe isn’t investigating the DA’s office criminally. The Justice Department announced its investigation in December as a civil probe into potential civil rights violations.

“We’ve been working with [the Justice Department] to get every inquiry answered,” Schroeder said.

She said she can’t predict the outcome of the investigation, but “there’s been no evidence that shows there has been…a pattern of violations of civil rights.”

In the Dekraai and other cases, she said attorneys in the DA’s office “always have turned over all evidence that was in our [possession].”

“We haven’t been keeping information from the defense. We have always turned over all we could. It’s hard to turn over information we don’t know about.”

Since the evidence disclosure allegations, the DA’s office also has provided “hundreds of hours of training” to the Sheriff’s Department and police agencies on their disclosure requirements, Schroeder said. Before that, she said, they were only getting “a few number of hours” of instruction on disclosure at the training academy.

Agents with the Federal Bureau of Investigation (FBI), which is part of the Justice Department, and officials with the Justice Department itself have been conducting interviews in Orange County as part of the probe.

The federal civil rights investigation could result in a lawsuit by the Justice Department to force reforms on local enforcement that are overseen by a court-appointed monitor, according to legal experts. The threat of the lawsuit typically leads the investigated agency to agree to a settlement called a consent decree.

And even if a consent decree is reached, its effect may be limited.

“The problem with these decrees when they’re not enthusiastically [embraced] by management,” is that when they tell officials to follow the law “they’re pretty much meaningless,” said Lawrence Rosenthal, a former federal prosecutor on public corruption cases who now teaches law at Chapman University.

Rosenthal noted Sessions’ desire to “pull back” from federal civil rights cases against local law enforcement.

“I will not be surprised if [U.S.] Attorney General [Jeff] Sessions does not follow up on it (the Orange County investigation),” Rosenthal said.

California Attorney General

As for the state probe, Schroeder said: “there’s no investigation by the Attorney General’s office of us.”

California Attorney General Xavier Becerra’s office said Thursday it is “conducting a criminal investigation” related to the informants issues but declined to comment on whether it is investigating the DA’s office.

“To protect its integrity, we can’t comment on the details of this ongoing investigation—including any comments on the scope or potential targets of the investigation,” the AG’s office said in its statement.

The state Attorney General (AG)’s office announced in March 2015 it was conducting “an independent investigation” into issues surrounding law enforcement use of informants in Orange County, including Judge Thomas Goethals’ findings of “evidence discovery violations” in the Dekraai case.

It’s statement at the time said “the Attorney General believes the findings of the court regarding the discovery violations in this case are serious and demand further investigation. But, as the (appeals) court found, ‘there is no direct evidence that the District Attorney actively participated in the concealment of this information from the defense and the court.’

“Under these circumstances, combined with the court’s proper imposition of evidentiary sanctions and the fact that the Orange County District Attorney’s office has 250 prosecutors, the court’s order recusing the entire District Attorney’s Office from this case lacks legal justification and must be appealed.

“The Attorney General’s Office will conduct an independent investigation into the alleged discovery misconduct in this case.”

A spokeswoman for the AG’s office said in November the probe had expanded beyond the initial scope as additional issues came to light, but did not give specifics, saying only investigators had spoken with dozens of witnesses and poured through “thousands of pages of documents.”

Rosenthal, the former federal public corruption prosecutor, said he didn’t anticipate strong action from the Attorney General’s office.

“I have seen no evidence that [former California] Attorney General [Kamala] Harris or her successor is really interested in doing anything about this problem,” Rosenthal said.

Orange County Grand Jury

The county grand jury, in addition to looking into jailhouse informant issues, apparently heard testimony from three DA investigators who have filed legal claims against the county, alleging high-level cover ups within the DA’s office of possible crimes as well as alleged destruction of evidence in a murder case, and say they’ve testified to the grand jury.

The Grand Jury hired a former U.S. Attorney for the Los Angeles-Orange County area, Andrea Ordin, and the Strumwasser & Woocher law firm as “special counsel and special investigators” for the grand jury’s civil investigation of the informants issues. The grand jury obtained a $400,000 budget increase from the Board of Supervisors in November to cover those costs.

According to the state AG’s office, Ordin and the law firm were hired “to investigate and present evidence to the grand jury, for possible further action by the grand jury.”

The grand jury also can recommend further investigation by law enforcement, such as the state Attorney General or federal Justice Department, and hand off aspects of its inquiry to the next grand jury, which takes office July 1.

And if it believes there is evidence warranting a criminal conviction, the grand jury can issue criminal charges through an indictment.

This is the second time Rackauckas has been the subject of Attorney General and grand jury probes.

The 2001-2002 grand jury, with assistance from then-Attorney General Bill Lockyer’s office, issued a highly critical report alleging a wide range of improprieties. Their final report said Rackauckas personally intervened in a case involving a friend, and another case involving a significant campaign donor who had co-hosted a “very lucrative” fundraiser for Rackauckas.

That grand jury report, which Rackauckas’ office disputed at the time, also alleged “widespread violations of County and District Attorney’s Office policies in the area of using employee time and office equipment for non/County business purposes, including political activities.”

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org. Contact Thy Vo at tvo@voiceofoc.org or follow her on Twitter @thyanhvo.

  • Debby Bodkin

    IMO, Rackauckas was given an opportunity to clean his house in the 2001-2002 Grand Jury investigation. Kang Schroeder and others apparently disappeared during that investigation and no one pled the Fifth. Rackauckas believes he is above the law or he would have taken the Grand Jury report in 2002 as his last chance to clean up corruption.

    Cannot help but wonder how many more reputations, careers, molested children, children exposed to a potential Columbine HS tragedy, and/or families have been destroyed since the 2002 Grand Jury Report and Rackauckas’ continued ability to grant prosecutorial favors to OC’s politically connected. Carona went to federal prison and Rackauckas escaped serving federal time in prison for much more serious crimes. It is time for Rackauckas to face time behind bars. If Rackauckas escapes accountability in 2017, something is very wrong in the OC–this is now an urgent public safety crisis!

  • Paul Lucas

    I wonder when the first lawsuit drops as a result of this corruption

    • LFOldTimer

      I’m much more interested with when the first ‘true bill’ indictment comes down.

  • LFOldTimer

    Look. You don’t have to be F. Lee Bailey to figure out what went on here. Given the facts that we have, a “c” high-school student in the AUHSD could connect the dots. The 4th District Appellate Court already told us that the DA and OCSD were in cahoots. That’s the reason it ruled in favor of the State AG taking over the Dekraai death penalty legal proceedings.

    And reading about all these Barney Fifes from OCSD who took the stand and made comical statements under sworn oath was like watching a Mel Brook movie. Judge Goethals has already called one of them “credibility challenged” to his face. ha. Repugnant and hilarious all in the same package.

    If the OC Grand Jury makes excuses for these scofflaws in it’s pending report on Tuesday and recommends no prosecutions and more training – I will lose TOTAL AND COMPLETE faith in this body they call the “justice system”. It will tell the citizens that the laws only apply to the little people and that the auth-or-i-tay insiders and connected ones have granted immunity from consequences under California and Federal statutes.

    This is the unintended message that I believe a recommendation for no prosecution by the OC Grand Jury and/or by the DOJ/FBI would send to the greater community:

    ‘There is exactly no reason for you to show any respect to the law, to the police, to the FBI, to the government, to anyone who claims “authority.” The law either applies equally to everyone and the law is enforced evenly against all or it deserves no deference or respect by anyone.’

    I pray this does not happen. I pray that our community leaders band together to show the world that we do have “equality under the law” in the County of Orange. That it doesn’t matter whether a cop, a prosecutor or a street sweeper violate the law – that ALL are held to the very same standard and that the law is blind, as Lady Justice purports outside every courthouse in the USA.

    Otherwise all of us are living a lie and have been living a lie for years. And our children are being lied to in our schools.

    Everyone pray. Civilization is on the line here.

    • verifiedsane

      “There is exactly no reason for you to show any respect to the law, to
      the police, to the FBI, to the government, to anyone who claims
      “authority.” The law either applies equally to everyone and the law is
      enforced evenly against all or it deserves no deference or respect by
      anyone.” – We have crossed an ominous line from a proud Democratic Constitutional Republic (where all are promised equality & equal protections/justice under the law); to an oligarchical dictatorship…

      The once principled and law based fabric of our nation is now under dire assault and beginning to tear completely apart at the seams…chaos, revolt, civil unrest, and social upheaval will surely follow. The people in ever growing numbers on both ends of the societal spectrum no longer trust the diversion propaganda being spoon fed to them on a daily basis…they no longer trust a pseudo government where both major parties hand pick puppet leaders who serve the interest of a very small ruling class of select wealthy plutocratic oligarchs. We have already witnessed our free speech being decimated by fascist decree (close minded political correctness is now replacing civility and open debate) and organized extreme anarchist mobs (intimidation).

      Our Constitution and our citizen rights are simply being quietly erased and rewritten line by line with each passing day; until one day in the not to distant future there will be no one left who will remember or be able to lend testimony to what our lost individual freedoms actually meant or felt like.

      • LFOldTimer

        I’m telling you. This is a report of HUGE importance that this blog stated will be released by the OC Grand Jury tomorrow.

        Basically it’ll tell us whether we live in a civilized Constitutional Republic predicated upon “equality under the law” or a Third World Banana Republic ruled by oligarchs who apply the law partially to only those who are not included in the protected elite swamp dweller class of county government.

        In fact, I believe it’ll be one of the most, if not THE most important report that the OC Grand Jury has ever issued in it’s entire history.

        If they whitewash what has happened and make excuses for Rackauckas, Hutchens or any of their sycophants in this F-rated theater we have lost our civilization. It’s been hyjacked by the very ones who are sworn under oath to defend rule of law and the US Constitution and the interests of the ones they purportedly serve.

        The OC Grand Jury is one of our final lines of defense. Let’s hope for the best.

  • verifiedsane

    It appears this whole DA and Sheriff’s office criminal and cover-up debacle has reached the highest level of the political oligarchy….Which pretty much means that nothing of consequence is ever going to happen…It’s no secret there are two sets of laws….one for the ruling class, and one that actually gets enforced for the rest of us….

  • “The state Attorney General now is prosecuting Dekraai, who has been convicted, in the penalty phase of his trial that determines whether he will spend life in prison or be sentenced to death. And disclosures in the Dekraai case about use of jailhouse informants led to convictions for murder or other major crimes in six unrelated cases being overturned.”
    There was no trial, or conviction, DeKraai plead guilty from the beginningall the hub bub was to gain more information to get the death penalty, as I understand Goethals has since taken that off the table as a reward for prosecutorial misconduct. I would like to see Goethals run for the office of DA.

    • LFOldTimer

      I would walk the neighborhoods promoting Judge Goethals if he ran for DA. I bet hundreds of others would too. He’s exactly what the doctor ordered. Wouldn’t it be cool if he won and hired Scott Sanders as his Chief of Staff? I’d be ecstatic.

      If Spitzer wins “Say hi to the new boss. Same as the old boss.” It would be one of the worst case scenarios. Like a patient being told by his doctor that he has terminal cancer.

      • The worse case than Spencer as DA is T Rack being re-elected.

  • RyanCantor

    “I have seen no evidence that [former California] Attorney General [Kamala] Harris or her successor is really interested in doing anything about this problem,” Rosenthal said.

    We should all remember that for a very long time.