Orange County Sheriff Sandra Hutchens (left) and District Attorney Tony Rackauckas. Credit: Pool photos by OC Register

The U.S. Department of Justice is breaking new ground with its civil rights investigation into how Orange County’s district attorney and sheriff have used jailhouse informants to systematically violate defendant rights, according to legal authorities.

The investigation announced Dec. 15 marks the first time a 1994 law, which historically has been used against police departments, is being specifically directed at a prosecution agency for constitutional rights violations in criminal cases, say scholars and former federal prosecutors.

The federal statute, known as Code 14141, was an outgrowth of the Rodney King case — in which Los Angeles police officers were acquitted of criminal offenses after a 1991 video captured them savagely beating King, an African American, following a car chase.

The 1992 acquittal sparked deadly riots in greater Los Angeles, and became a watershed moment for race relations nationwide.

The King law was enacted to give federal prosecutors more tools to investigate local law enforcement conduct. It has been used for investigations, lawsuits and settlements involving police departments alleged to have repeatedly engaged in heavy-handed or racist actions. The law was basis of DOJ’s finding earlier this year of a pattern of civil rights violations by the Baltimore Police Department.

But the only other time the law has been directly applied to a local prosecutor along with police was a 2012 case in Missoula, Mt., say legal authorities.

That case differs from Orange County’s because it focused on gender discrimination and bias — as the police department and county attorney were accused of under enforcement of the law for failing to prosecute allegations of rape and other sex crimes against women.

Investigating District Attorney Tony Rackauckas’ office for “a pattern and practice” of using informants in the violation of defendant rights to counsel and required access to evidence is “remarkable,” said Jonathan M. Smith, who, until July 1, was chief of the special litigation section of the DOJ’s civil rights division.

“It is uncommon to investigate prosecutors, so this is an important investigation,” Smith added.

The rights violations were first uncovered in 2014 by county public defenders for Scott Evans Dekraai — who in 2011 committed Orange County’s largest-ever mass murder when he gunned down his wife and seven other people in a Seal Beach beauty salon.

Scott Sanders, who leads Dekraai’s defense team, showed in lengthy motions that prosecutors and sheriff’s deputies had improperly utilized informants in a series of cases dating back decades. Thus far, at least six defendants have had their convictions for murder or other major crimes overturned as a result of Sanders’ discoveries.

In 2015, Attorney General Kamala D. Harris opened a criminal investigation after a Superior Court judge ruled sheriff’s deputies and a prosecutor testified falsely in the Dekraai case to hide evidence. The probe continues.

In November last year, Erwin Chemerinsky, dean of the UC Irvine School of Law, led a host of prominent attorneys and former federal and state prosecutors in calling for a federal investigation.

Stephen Rushin, a professor at the University of Alabama School of Law in Tuscaloosa who studies the King law, called the DOJ probe “a super fascinating issue,” as it could guide how the law is applied to prosecutors nationally.

Politics Might Play a Role

To those in the legal world, the investigation is even more intriguing given its political timing. They note the justice department under President Barack Obama has aggressively enforced civil rights laws — a departure from the George W. Bush administration, which in large part avoided civil rights cases.

But U.S. Attorney General Loretta E. Lynch is launching the investigation just as she is about to hand over the department’s reins to President-elect Donald J. Trump’s attorney general — slated to be U.S. Senator Jeff Sessions, who has been hostile to civil rights cases throughout his career.

“This case is huge,” said Miriam Aroni Krinsky, who is a former long-time federal prosecutor in Los Angeles, and was among those calling last year for the federal probe.

“We are seeing transparency, accountability and oversight in the strongest possible way. With the change in administration, it could be a very different landscape in terms of oversight of prosecutors.”

Smith, now executive director of the Washington Lawyers Committee for Civil Rights and Urban Affairs, said: “I worry that politics may play a role. It could be very, very troubling.”

The legal debate over use of the King law against prosecutors is so hot, legal authorities note, that the National District Attorneys Association in Virginia has fought its applications against prosecutors.

In the Montana case, the association filed a letter in support of Missoula County Prosecutor Fred Van Valkenburg’s 2014 lawsuit against the federal government to block using the King law against him. Missoula’s failure to prosecute sex crimes prompted a national outcry, with women advocates calling it the nation’s “rape capital.”

Then after the case was settled in 2014 with a broad program to improve sex crime investigations and prosecutions, the DA association gave Van Valkenburg a “President’s Award” for his “perseverance” in fighting the DOJ. [Van Valkenburg’s lawsuit was dropped as part of the settlement, and he retired.]

Mike Ramos, the San Bernardino County District Attorney who is president of the DA association, was on holiday and unavailable for comment, a spokesman said. The association’s administrators couldn’t be reached.

In Orange County, however, both Rackauckas and Sheriff Sandra Hutchens have taken a more conciliatory approach — with the DA even welcoming the investigation in press releases, while adding he expects his office to be cleared of any impropriety.

However, members of the local defense bar are wondering how welcoming the DA and sheriff will be given how hard they’ve fought to block disclosure of records on jailhouse informants.

In January 2013, Orange County Superior Court Judge Thomas M. Goethals ordered a huge trove of records turned over to Sanders.

Thousands of documents were disclosed, but since there has been a steady drip of more computerized records coming out of the sheriff’s department. At every turn, county counsel has fought on behalf of the sheriff to seal informant records to protect them from retaliation.

The evidence violations were so extreme that in early 2015 Goethals took the rare step of barring Rackauckas’ entire office from prosecuting the death penalty phase of Dekraai’s trial, saying the DA couldn’t provide a fair trial.

Dekraai pleaded guilty to the murders in 2014, but has been attempting — unsuccessfully so far — to use rights violations as way to block the death penalty sought by Rackauckas.

Harris appealed Goethals’ order that the attorney general’s office take over the prosecution from Rackauckas. But last month, the 4th District Court of Appeal in Santa Ana came down strongly in support of Goethals’ ruling — with a three-justice panel issuing a unanimous opinion that the judge acted judiciously and appropriately.

The “magnitude of the systematic problems cannot be overlooked,” the justices wrote.

During a hearing last week, Goethals — who has grown increasingly frustrated with Hutchens’ repeated delays in producing records — threatened to initiate contempt of court proceedings in mid-January if there isn’t appropriate compliance.

Considering how the DOJ has acted in other cases, observers note, the continual local resistance to complying with evidence disclosure laws combined the appellate decision may have prodded the federal government to act.

The DOJ, Smith said, prefers to have local prosecutors and law enforcement resolve issues — as the federal agency has limited resources for such complex cases.

“They appear to have created a situation where the DOJ wanted to go in,” Smith said.

Typically, it is the federal government’s desire to reach a settlement — which can come with a monitor or “technical advisor” to address shortcomings, with the county paying the costs that can be substantial. Although, if an agreement can’t be reached, the DOJ will sue in federal court for a district judge to order remedies.

“It’s a fascinating moment, with not just law enforcement but the prosecution under a microscope,” said Krinsky, the former federal prosecutor.

“No one part of a system breaks down alone. A win-at-all-costs approach ends up being a lose-at-all-costs approach.”

Rex Dalton can be reached directly at

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