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.

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