In the latest chapter of Orange County’s jailhouse snitch scandal, Assistant Public Defender Scott Sanders has filed a 72-page motion arguing Orange County Sheriff’s deputies not only were openly and actively encouraged to cultivate jailhouse informants to aid prosecutors, but the department also tried to cover its tracks as revelations about the program unfolded in court.
“The document cache corroborates that the jail informant program has been an incredibly active operation for at least multiple decades,” the motion states. “The contents of numerous documents actually suggest that the department has likely managed well over a thousand informants over the past several decades.”
Contradictory statements made under oath by three sheriff’s deputies about the informants program and the records documenting it amount to perjury, Sanders argued.
Sheriff’s personnel up and down the chain of command have been “silently aware” of the hundreds of documents contradicting their statements, he adds.
The motion was filed Thursday at a pretrial hearing where Sanders asked Judge Thomas Goethals to expand a previous order and forbid the Sheriff’s Department from destroying sergeants’ logs and other documents that he says have yet to be disclosed by the county.
The case of Scott Evans Dekraai, who murdered eight people at a Seal Beach hair salon in 2011, has grown beyond a murder trial into a years-long scandal that has sparked U.S. Department of Justice, state Attorney General and Orange County Grand Jury investigations. They’re looking into how the Sheriff’s Department and District Attorney’s office used jailhouse informants to elicit confessions from criminal defendants, without the knowledge of the defendants or their attorneys.
A 1964 U.S. Supreme Court ruling prohibits government officials and their informants from questioning defendants in custody who have been charged with a crime and have legal representation.
Disclosure of the rights violations have led judges to overturn the convictions of at least six Orange County defendants charged with murder and other serious crimes.
Sheriff Sandra Hutchens has denied the existence of a jailhouse informants system, a position that has rankled Goethals. He has ordered an upcoming evidentiary hearing into how the Sheriff’s Department handled informants’ records and whether it attempted to cover up the program by withholding or destroying evidence. Hutchens could be called to testify.
A date for the hearing has not been set.
What Documents Aren’t Included?
Revelations about the informants are based on more than 5,000 pages of documents disclosed by the county last year from the Special Handling Log, or notes kept by deputies about inmates and informants.
Dekraai’s attorneys say the Sheriff’s Department intentionally withheld and delayed the disclosure of documents. In one instance, they point to the fact that prosecutors have only “been able to locate Special Handling logs for a period of a mere seven months of Dekraai’s 65 months of incarceration” and to a two-year gap in entries in records tracking two informants who lived in the same module as Dekraai.
Sanders also highlights two writings, which are almost entirely redacted and remain under seal.
In his motion, Sanders says the writings strongly suggest the Sheriff’s Department tried to “create cover for false testimony” by creating a new category for inmates who provide information in exchange for some benefit, calling them “sources of information.”
He notes the phrase “source of information” or “SOI” was first used to describe inmates on March 18, 2014, the same date as the first day of evidentiary hearings to explore Sanders’ allegations that the county operated a jailhouse informant program, and less than two months after he first made that claim.
The motion also alleges the DA intentionally delayed releasing records from the special handling log at Theo Lacy Jail to avoid tipping off Sanders to contradictions in testimony by two deputies that would help him in another case.
The DA announced in June 2016 it would review the entire log for any possible issues where defendants were not notified of an informant being used against them.
According to the motion, emails suggest Assistant District Attorney Dan Wagner obtained those documents a week after the announcement but “apparently delayed even studying the logs” until Sanders filed an informal discovery request in August 2016. He ultimately didn’t give the documents to the court until December.
Sanders hypothesized the DA delayed the release of the Lacy logs to avoid alerting Sanders, who is also the attorney for another defendant, Daniel Wozniak, “to keep Wozniak from obtaining any benefit from discovery contents,” according to the motion. Wozniak was sentenced to death last year for killing two of his friends to get money for his wedding.
A portion of the Sanders’ motion details exhaustively the contradictory statements of three deputies in the Special Handling Unit: William Grover, Seth Tunstall and Ben Garcia.
For example, Grover wrote frequently in the logs about informants, including one who he encouraged to “marinate” information from Wozniak. But testifying in 2014, he denied knowledge of contact between the informant and Wozniak.
Later, Grover said he spent “less than zero” time with informants – despite writing about his extensive work with informants in a 2015 performance evaluation, according to the motion.
During a 2015 evidentiary hearing, when Tunstall and Garcia both said they could not remember where and when certain inmates were moved, and failed to mention that information is easily tracked through TRED, an electronic database.
But in a case four years earlier, Garcia was not hesitant in describing how the electronic database is used to track inmates.
They both testified it had not occurred to them to mention TRED to defense attorneys, which Tunstall said was due to a lack of training.
Tunstall also downplayed his involvement with informants in court testimony, despite writing in a 2013 search warrant that he had personally “cultivated, interviewed and supervised numerous informants.”
None of the deputies have been disciplined for lying and all three have refused to testify in subsequent criminal cases, invoking their Fifth Amendment right against self-incrimination.
The motion also argues that the Sheriff’s Department has a history of destroying and altering records, raising “a troubling entry” that “suggest the possibility that Special Handling deputies may have also manipulated particular logs on the eve of a site visit by the DOJ (Department of Justice) and its investigators.”
Will Dekraai Get Life in Jail or Death?
Thursday’s hearing was part of the penalty phase of the trial, which will determine whether Dekraai, who pled guilty to the murders in 2014, will receive a life sentence or the death penalty.
On Wednesday morning the Attorney General announced he would continue to seek the death penalty against Dekraai.
Sanders has argued the violation of his client’s rights is so egregious that he should be spared the death sentence.
Bethany Webb, the sister of Laura Webb Elody, a hair stylist killed by Dekraai, told the court Thursday sentencing Dekraai to death would not end the ordeal thrust upon the families of his victims, noting the long delays before executions are carried out in California. Webb’s mother, Hattie Stretz, was the only survivor of the attack and suffered gunshot wounds to her arm and chest.
“The Attorney General is not doing this for us, they’re doing this to us,” Webb said, noting Thursday was the birthday of Michelle Fournier, Dekraai’s slain ex-wife. “We’re not like him…we don’t find any relief in his death.”
On Thursday Goethals also signed a protective order allowing the attorney general’s office to hand over a number of discovery documents under seal, information that was produced as part of the attorney general’s ongoing criminal investigation into the Sheriff and District Attorney’s use of informants.
The Orange County Counsel is asking another set of documents from the attorney general investigation not be disclosed until they are able to review them. Those documents are interviews with attorneys for the county that are subject to attorney-client privilege.
As for Sanders’ request that he expand on a previous order and forbid the Sheriff from destroying specific evidence, Goethals tentatively denied the request, saying his previous order would encompass all records relevant to the case.
Reiterating a warning he gave at a previous hearing, Goethals said if he discovers anyone at the Sheriff’s Department ordered the destruction of records, “Those people are going to jail.”
Attorneys for the case are due back in court on April 21.
Contact Thy Vo at tvo@voiceofoc.org or follow her on Twitter @thyanhvo.