‘A Failure of Leadership’ in DA’s Office, Panel Finds

Kaitlin E. Washburn for Voice of OC

District Attorney Tony Rackauckas (right) at a news conference. Seated next to him is Senior Assistant District Attorney Michael Lubinski.

An independent panel issued a scathing report Monday, saying Orange County District Attorney Tony Rackauckas’ office suffers from “a failure of leadership” and called for a state or federal investigation into the agency’s informant scandal.

After a six-month inquiry, the five-attorney panel called for the following: a substantial reorganization of the office; the establishment of a committee and an ethics officer to ensure fair prosecutions; and the three-year appointment of a monitor to ensure improvements.

The Informant Policy & Practices Evaluation Committee supported calls by national legal authorities for an investigation by either the U.S. Department of Justice or the California Attorney General’s Office. At minimum, a grand jury should look into the issue. Such an investigating agency should have subpoena power and the ability to call witnesses to testify, said the report dated Dec. 30, 2015.

“The confidence of various constituencies in the prosecution of criminal cases in Orange County that involve the use of jailhouse informants has eroded,” the report continued, noting constituencies included private attorneys, prosecutors, judges, and families of both victims and the accused.

“What also became clear during the evaluation was that, in many ways, the OCDA’s office functions as a ship without a rudder. This failure appears to have contributed to the jailhouse informant controversy.”

(Click here to read the entire report.)

At a press conference this afternoon, Rackauckas and his staff largely greeted the report with acceptance, agreeing to most recommendations and/or noting such enhancements already were under way.

He said he was open to a federal investigation, but that he believed his office had done nothing wrong and such a probe would confirm that.

When asked directly if he plans to resign he said: “As far as resignation is concerned, certainly I am responsible, but no I don’t intend to resign.”

Asked about events that evolved from the Dekraai case, he said, “of course, I plan on taking personal responsibility; it happened on my watch. I was unaware of that kind of management we were getting.”

The 24-page evaluation report comes after two years of disclosures about misconduct and illegal use of informants by DA prosecutors and Sheriff’s deputies in county jails. The disclosures came during an unprecedented months-long evidentiary hearing in the trial of mass murderer Scott Evans Dekraai, who in 2011 killed his ex-wife and seven others in a Seal Beach beauty salon. Dekraai pleaded guilty to the murders in May 2014.

Dekraai’s public defenders, led by Scott Sanders, uncovered a web of questionable informant use that spread through dozens of cases — with more than a half dozen other defendants having major sentences vacated or charges dropped.

Last March, Superior Court Judge Thomas M. Goethals, who is hearing the Dekraai case, recused Rackauckas’ entire office from prosecuting the penalty phase. The state Attorney General is to prosecute that phase, pending an appeal of Goethals’ ruling.

Goethals found prosecutors engaged in misconduct regarding defendant’s rights to discovery evidence, and ruled both law enforcement and a deputy district attorney provided false testimony during the hearing.

California Attorney General Kamala D. Harris’ office then announced it would conduct an investigation of possible criminal conduct in the Dekraai case. And legal authorities — like Erwin Chemerinsky, dean of the UC Irvine School of Law — called late last year for a broad probe by the U.S. Department of Justice.

In response to the uproar caused by the revelations, Rackaukas in July formed a committee of five independent attorneys to conduct an independent evaluation.

The panel included: Robert Gerard, a former president of the Orange County Bar Association; Retired Superior Court Judge James L. Smith; Patrick Dickson, a former assistant district attorney in Los Angeles; Blithe C. Leece, a defense attorney in Encino; and Laurie L. Levenson of Loyola Law School in Los Angeles.

The evaluation panel interviewed some 75 members of the DA’s office, defense attorneys, and law enforcement, along with reviewing multiple case briefs and documents on informant probes in other regions.

From this, the evaluators said: “It became clear that over the years some prosecutors adopted what the [panel] will refer to as a win at all costs mentality. This mentality is a problem.

“Stronger leadership, oversight, supervision and training can remedy this problem. Key to addressing the problem is changing the culture of the office by not rewarding prosecutors with the ‘must win’ mentality with promotions.”

Evaluators were also told that prosecutors were subjected to inappropriate pressure by law enforcement officers seeking prosecutions in questionable cases.

This was compounded by the fact that deputy district attorneys were “embedded” in law enforcement agencies, with deputy district attorneys and officers developing social relationships that could compromise independent prosecutions.

“[Evaluators] heard from numerous deputies that it is not uncommon for deputy [district attorneys] to be subject to inappropriate pressure from their law enforcement counterparts to file cases that the deputies were otherwise not comfortable filing,” the report states.

“The [panel] heard reports of deputies being ridiculed and even harassed by law enforcement for not being aggressive enough in filing certain gang cases.”

In a statement, Orange County Sheriff Sandra Hutchens said she was “open” to state or federal investigations. “I found the recommendations, particularly in the area of training and coordination with local law enforcement, to be extremely relevant,” the statement said.

And evaluators found staff of the district attorney’s office feared raising issues with Rackauckas or executive staff for fear of termination or retaliation.

“Within the OCDA’s office, there is a palpable hesitation to bring problematic information to the attention of the [Rackauckas], the report says. “Over the years, a certain ambivalence has developed about making suggestions or expressing concern because… ‘nothing ever happens or changes.’ This ambivalence underscores the need for more robust communication and leadership.”

Evaluators said county employment rules should be altered so that top management prosecutors could revert back to the staff after leaving an executive position, instead of being completely terminated from the office, as is now the case.

To prevent further problems with informants and prosecutions, the evaluation panel suggested several proposals for the DA’s office:

  • The creation of a Confidential Informant Review Committee to oversee and approve use of informants, with that panel including an “outside, independent member,” who should be a retired criminal defense attorney or retired judge with a defense background.
  • Following the lead of Los Angeles and Santa Clara counties, Orange County’s District attorney should establish a Conviction Integrity Unit — which would be “dedicated to re-examining post-conviction claims of innocence…establishment of this unit will also signal to the public that the OCDA is open to learning about the mishandling of cases,” the report states.
  • The appointment of a retired judge to the position of monitor, who would for three years provide public annual reports on the district attorney’s implementation and compliance with the evaluating panel’s report.

Additionally, the evaluation recommended that the position of “chief of staff” — now held by Susan Kang Schroeder, herself a prosecutor — be eliminated; and that a new position “assistant district attorney for media relations” be created to “develop a transparent and professional relationship with the press.”

“With one exception, every member of the OCDA’s office who was interviewed expressed what could only be described as an extreme level of concern regarding the toxic and combative relationship between the OCDA’s office and the press,” the report states.

While noting some press coverage was sub-optimal and the staff didn’t directly attack Schroeder or her staff, the report stated: “OCDA must shoulder responsibility by its failure to provide straightforward complete answers to press inquiries.”

At the press conference, Rackauckas acknowledged the tension between Schroeder and the media, but said he has no intention of following the recommendation regarding her title change.

“The chief of staff position is very valuable…she does things for the district attorney’s office that are not strictly related to media relations,” Rackauckas said.

Summing up their report, the four attorneys and a retired judge wrote:

“While undoubtedly most prosecutors in the OCDA’s office are ethical and hard working professionals, there are significant issues within the office in the areas of training, supervision and overall culture.

“There is an immediate need for stronger leadership, training, supervision, mentoring and oversight to change the culture” — adding the recommendations are “to help reinstate the public’s trust and confidence in our justice system.”

Voice of OC reporter Nick Gerda contributed to this report.

Please contact Rex Dalton directly at rexdalton@aol.com

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  • Debby Bodkin

    It is important to not forget that this report is about the largest law enforcement agency in Orange County, California–attorneys at law, aka officers of the court. What is wrong with this picture? Why should officers of the court require one commission after another to evaluate policies and procedures and intentional violations of the law and denied due process?

    Within minutes after the report was release, “Rackauckas acknowledged the tension between Schroeder and the media, but said he has no intention of following the recommendation regarding her title change”… In sum, if the USDOJ and the FBI cannot see the writings on the wall now, then the federal government has the fiduciary duty to accept all monetary damages caused by Rackauckas and Susan Kang Schroeder’s intentional failures to protect the safety and civil rights of the people they took an oath to protect. IMO, the feds need to put a stop to this criminal RICO enterprise that runs far deeper than any inmate informant scandal recently publicly disclosed.
    Again, in my personal opinion, the criminal RICO enterprise involves the OC Republican GOP, the OC Sheriff, the OC Board of Supervisors, the TCA agencies, the Catholic Diocese of Orange and the attorneys/law firms that simultaneously represent them all in courts of law when they all have adverse interests that pose risks to the public’s safety and the right to the fair administration of justice. These attorneys and law firms laugh all the way to the bank and have enjoyed years of protections from OC government officials….. three words describe the crimes: RICO CRIMINAL ENTERPRISE. Where are the fed?

  • Jacki Livingston

    I remember in 2010, I had an interview with two attorneys in the DA’s office. One was named Ron, I don’t remember the other one, but I still have Ron’s business card. Anyway, I went to them with internal documents and all kinds of proof that something was definitely rotten over at SSA, with an unholy alliance between a rancid, unscrupulous operator of numerous nursing homes and the County politicos, notably Janet Nguyen. I showed them multiple billing numbers, proof of fraud and misuse of funds, and possible kickbacks to County employees. I told them that this nursing home operator had been sued for millions and lost, for embezzlement, neglect and gross misconduct. I showed that some doctors involved had been prosecuted by the feds. We are in 2016, and I never heard from this guy again. Later, I testified to another attorney with the DA and his investigator, as the situation got worse and worse and worse, and I testified before the Grand Jury. Nothing. The truth is, they need to go in there and clean house, top to bottom, and de-politicize the DA’s office. Imagine that, a County employee goes to the County’s top law enforcement officer, and nothing happens, even when given document after document, while patients were being dropped on their heads and killed? It is a disgrace. Spitzer is far too involved in the corruption to ever be able to run for DA, and, frankly, his unholy relationship with the WC court should disqualify him, anyway. No, the OCDA needs to be cleaned out, because they do everything in there EXCEPT uphold the law…and then they need to go over and do the same with Spitzer’s personal guido squad at OCSD.

    • Jacki Livingston

      And, to be fair, I sent the same documents to Kamala Harris’ office, and they did nothing, either, so failure of leadership flows upward, don’t it? Hmmmmm….

  • Shirley L. Grindle

    Rackauckas has had 18 years to show his “leadership” talent – which is obviously seriously lacking. This office has been overly politicized by both Rackauckas and his so-called Chief of Staff (the infamous Susan Schroeder) — and apparently the rest of the management team is not comfortable with stepping in for fear of losing their jobs. I doubt if Rackauckas can change his attitude about the responsibility he has as a District Attorney – an attitude that has shown time and again selective prosecutions that benefit his close friends/campaign supporters, and bending of the rules. The fact that he claims he knew nothing about what was going on only further confirms he lacks the ability to properly lead and manage the DA’s office. Time to go – Tony – you have run your course.

  • Bob Brock

    Rackauckas and Susan Kang Schroeder are a cancer in the DA’s office. They are both slowly drowning in their own corruption, malfeasance and incompetence. At long last do the decent thing and resign. If they don’t, they deserve to be led off in handcuffs and I hope Spitzer is named DA so he can prosecute them.

    • Jacki Livingston

      Spitzie? Oh, no, Todd couldn’t prosecute his way out of a wet paper bag with a machete and a chain saw. Dear Lord, we can do much better than Todd Spitzer.

  • Kathleen Tahilramani

    Teachable Moment for all government entities: Refuse to speak to the press, ignore the press, play games with the press, try to lie or outwit the press. Result: The press does not need your “comments” to get to the story and the truth. And, the public will assume that silence equates to having something to hide. Zero sum game.

  • RyanCantor

    ““With one exception, every member of the OCDA’s office who was interviewed expressed what could only be described as an extreme level of concern regarding the toxic and combative relationship between the OCDA’s office and the press,” ”

    Ouch. That’s gotta hurt.

  • RyanCantor

    “After a six-month inquiry, the five-attorney panel called for the following: a substantial reorganization of the office; the establishment of a committee and an ethics officer to ensure fair prosecutions; and the three-year appointment of a monitor to ensure improvements.”

    Or, we could skip that and just get a new DA.

    • Ron

      Spitzer is a politician. We dont need that. An atty/manager experienced in running a large office of attorneys and with the temperment to be a consensus builder is more appropriate. Spitzer can continue to be a political animal, but he’d be a horrible DA. That being said, anyone is better than the current lsw breaker.

      • Jacki Livingston

        A corrupt politician. No…clean house. Get someone not from the OC. Fresh blood is needed, absolutely.

  • Paul Lucas

    Resign Tony. Feds move in and start arresting this crew. BOS appoint Todd Spitzer as interim DA. Make him earn his election in 2018.

    • Rich Olquin

      Spitzer can be called many things over the years, many of them well deserved. But no one can question his ever present sense of right and wrong and the willingness to stand up for what he believes to be in the best interest of those who elected him. Many people don’t like him because he is honest and has no problem speaking the truth rather than playing the “don’t rock the boat game” of OC. #DumpTonyNOW

      • Dartmouth Worried

        Spitzer is not being “honest”, he wants the DA job and is trying to get TR to resign or not run again in 4 years. Plain and simple.

        • Jacki Livingston

          Yeah, because if T-Rack ran, and they had a debate, and he looked hard at a plastic knife…well, we all know what could happen…Todd doesn’t do well with stress. *skips off whistling*

      • Jacki Livingston

        Wh…wha…WHAT???? Are we talking about the same Todd Spitzer who ignored nursing home patients being embezzled from, taxpayers being ripped off, employees being harassed and their careers destroyed? THAT Todd Spitzer? The one who had his wife at WCAB appoint his client and close personal friend to act as judge on the case? THAT Todd Spitzer? The one that does nothing as the county HR department violates every agreement in the settlement? Oh, better yet, the chicken **** guy who got skeeeered because the employee spoke truth about him on this website, he got his buddy buds over at OCSD to go over to that former employee’s home to intimidate her into shutting up about his gross incompetence and lack of ethics. THAT THAR Todd Spitzer? Oh, honey, sweetie, sugar pie…get a grip. You clearly do not know the real Todd Spitzer. TRUTH is not in his vocabulary. He wouldn’t know the truth if it came up and slapped him up the side of his hair-spray covered head. In fact, I would pay good money to see that. OOOOOPS! Toddy might get skeeered and sent his guido squad back to my house! Oh, NOOOOOOOO, Mister Bill!


        • Bob Brock

          Careful Jacki, your tinfoil hat is slipping off

          • Jacki Livingston

            What’s the matter, Bob? All out of Chapstick? Um, you might want to pass on to your buddy Todd that the next time he sends his guidos to my house? They probably shouldn’t leave their business cards. Just a thought. The other thought would be that your pal should grow up, and fight his own battles, like a man.

    • Dartmouth Worried

      Why would you want a career politician in that job?

      • Paul Lucas

        In this case, with this particular career politician, we get to watch Spitzer demonstrate his ability to conduct himself as a good DA instead of assuming his own coronation a la Hillary style. If he doesn’t live up to his own hype we can run Judge Goethals instead which is my preferred choice anyway. If I could see Goethals appointed without Todd interfering in the process I would ask for that. But yeah he’s a career politician so I’m planning ahead.

    • Jacki Livingston

      Let us not forget, that during part of T-Rack’s term, Toddy was his BO-OY! I mean, they were peanut butter and jelly. So, you have to assume that Todd is probably just as incompetent as Tony. If his failure on the BoS is any indicator, that would be true. No…clean house. Bring in someone tough from some cold, windy place, who can crack the whip and be happy to be out of the snow. Get someone strong, not a wimpy wittle political hack like Spitzie.

      • Paul Lucas

        Actually the reason Todd and TRack had a falling out is because Todd was actually doing his job and doing the right thing in his advocacy for a family I know who were getting robbed by the department that is in charge of deceased persons property. In this he ran afoul of T Rack by actually doing his job and doing it proper. The rub came when Todd stood up to the corruption in that office and its head . That person and host department was a great resource for the DA. Thus T Rack fired him for daring to take one of his Dukes to task. I got issues with Todd but in that event he was doing the right thing and he paid a price too high for it.

        • Jacki Livingston

          Well, times have changed for Todd. A County employee sends him documents of employees rigging the computer systemf for vendors to double and triple bill the state. Same employee sends him documentation of misconduct and abuse against comatose patients in nursing homes and that a County agency is complicit in these crimes. I sent this proof to the mighty crusader for families. He did nothing. NOTHING. Oh, but after I spent six years having MY life and career destroyed by the filthy thieves who rose to the top, Todd gets his wife to assign my case to his close friend and I am the one who actuallyp aid a high price. From where I am sitting, he seems to be doing fine. Then, to add insult to injury, he sends two OCSD sheriffs to my home to intimidate me because I am not going to be silent any more. So don’t polish Spitzer ‘s nameplate on the DA door. I intend to spend all this free time he provided me making very sure he isn’t able to be elected dogcatcher of Barstow, much less DA of the OC.

          • Paul Lucas

            I suggest you follow my lead and call for Judge Goethals to be the next DA.

          • Jacki Livingston

            To be honest, I think the County needs fresh, fierce blood. An outsider needs to come in and strip the sewer clean, from the top, down.

          • LFOldTimer

            I’ve been endorsing Judge Goethals for DA for the longest time. I consider him a Superhero. And I would love for Scott Sanders to be his Chief of Staff. If that longshot pair ever came across the finish line for a win/place I’d be in hog heaven. My hope and trust in humanity would be reborn. But 100 to 1 longshots are rarely victorious. Not in governments that spin a crooked web.