DA Announces Committee to Examine Prosecutorial Misconduct

Orange County District Attorney Tony Rackaukas today announced he is forming a committee of five independent attorneys to examine his office’s controversial, and at-times, illegal use of jail informants.

The panel of legal experts from throughout Southern California will file a report by the end of the year with recommendations on the use of informants in criminal prosecutions, according to a DA press release.

The release says the group has already begun examining issues arising from the prosecution of Scott Evans Dekraai, who committed the largest mass murder in county history in 2011 when he killed his wife and seven others at a Seal Beach beauty salon.

During Dekraai's prosecution, his public defenders uncovered widespread improper and in some cases illegal use of jail informants in that case and possibly nearly 20 others. So far, four individuals convicted of major crimes have had their sentences vacated or altered after disclosures of prosecutorial irregularities.

In March, Superior Court Judge Thomas M. Goethals shocked the local legal establishment by ordering that Rackauckas’ entire office be recused from prosecuting the penalty phase of Dekraai’s trial. Dekraai pleaded guilty to the eight murders last year, but is seeking life without parole. Rackauckas is seeking the death penalty.

With the DA's office out, state Attorney General Kamala D. Harris is supposed to take over the penalty phase of the prosecution. But Harris is appealing Goethal’s ruling on behalf of the DA, while her office conducts an investigation of alleged offenses by the prosecution, ranging from rights violations to perjury by a prosecutor and several law enforcement officers.

“I think it’s important to have an objective and expert external committee, with different points of view, to thoroughly review and analyze the issues regarding the use of in-custody informants, so we can improve our procedures and avoid any future mistakes,” Rackauckas said in the press release.

“I want the public, the bench and the bar to know that our prosecutions of murderers and violent criminal street gang members are tough but fair.”

Scott Sanders, Dekraai’s lead public defender, described Rackauckas' action as a good start, but said much more needs to be done.

“I have enormous respect for those who would give their time to try to improve the situation," Sanders said in a statement. "But, of course, there remains the enormous problem of addressing decades of potential informant related misconduct and evidence concealment, which is beyond the scope of this committee’s review.”

This new committee comes after the two internal county reviews of the DA actions found no major issues, as Rackauckas attributed problems to a lack of training. One review was by a firm long associated with Rackauckas, while the other was by a county office nearly closed recently because of ineffectiveness.

The committee members are:

  • Laurie L. Levenson, a professor at the Loyola Law School in Los Angeles, who is internationally known as an outspoken expert on ethical issues.
  • Robert Gerard, a partner with the firm of Friedman, Stroffe & Gerard of Irvine, was president of the Orange County Bar Association in 2003. He lists human resources law as a specialty, while also representing firms and individuals involving sports [surfing, skiing] issues.
  • Retired Orange County Superior Court Judge James L. Smith, who was with the Orange County District Attorney’s Office in the early 1960s. Appointed to the bench by then-Gov. Ronald Reagan in 1971, Smith served as a judge until 1995. He now is a mediator/arbitrator for the dispute resolution firm JAMS of Irvine.
  • Patrick Dixon, a former assistant district attorney for Los Angeles County, who was with that agency from 1976 to 2013. He is now a private attorney in Newport Beach.
  • Blithe C. Leece, a former Los Angeles County deputy district attorney, who also was a senior trial counsel for the California Bar litigating attorney discipline cases. She is now a defense attorney with the Aizman Law Firm in Encino, where she specializes in legal ethical and professional responsibility.

Saying the committee “uniformly views this as a critically important opportunity to restore any lost faith,” Gerard noted the “mandate” from Rackauckas is that “the investigation itself and the report are to be unvarnished.”

Gerard went on to say Rackauckas is “unequivocally” giving the panel freedom of inquiry. “This is not a group that is going to just go along with the system,” he added.

None of the other committee members could be reached for comment.

Correction: A previous version of this article misstated Patrick Dixon's tenure at the Los Angeles County District Attorney's Office.

Please contact Rex Dalton directly at rexdalton@aol.com