‘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