DA Tony Rackauckas Defends His Prosecutors’ Handling of Informants

Orange County District Attorney Tony Rackauckas during his opening statement in the trial of Fullerton police officers involved in the beating death of Kelly Thomas. (Pool photo by the Orange County Register)

Orange County District Attorney Tony Rackauckas Tuesday stepped up his defense of prosecutors accused of misusing jailhouse informants and withholding evidence, saying the rulings against his office came from “one judge” who allowed an extensive search through cases that “had nothing to do with” the trial he was presiding over.

Rackauckas, in a live radio interview with KFI-AM host Bill Handel, acknowledged Judge Thomas Goethals’ 2015 ruling – which kicked the DA’s office off the county’s largest-ever mass murder case – was the first time in his nearly 20 years as DA that a case was taken from his office and handed to the state Attorney General.

Handel said “that says a lot about…how this case was handled, and leadership.”

Rackauckas disagreed.

“Now wait – does it? Does it really? I mean look…[we have] a hundred attorneys all the time, in, in trial, in cases with 50 different judges. And, uh, so we’ve had trouble with one judge,” Rackauckas said.

“And that one judge has uh, has made these various rulings. And so, uh – you know, for you to say, ‘Wow this is – this is all, uh, uh, talks about how you handled the case,’ I really – I really disagree with that.

“I’ve gone back, and I’ve looked at how this case was handled.”

“And you’re okay with it?” Handel interjected.

“I think – I can see a mistake or two,” Rackauckas replied. “But nothing– nothing, not even close to these salacious arguments, or salacious accusations that we’re hearing.”

Asked why he agreed to be interviewed by 60 Minutes about informants in the middle of an investigation, Rackauckas said it was his job to stand up for his staff when they’re being accused of wrongdoing.

“We have a lot of great people working in the District Attorney’s Office – honest, hard-working investigators and attorneys. And they’re being accused of a lot of wrongdoing, and it think it’s up to me to be there to stand up for them and to answer those questions,” Rackauckas said.

The DA’s office and Sheriff’s Department’s are under investigation by at least three agencies over the use of informants: the U.S. Justice Department, California Attorney General’s Office, and the Orange County Grand Jury.

For its investigation, the Grand Jury hired former U.S. Attorney Andrea Ordin and two former state Attorney General lawyers to “investigate and present evidence.”

Rackauckas’ remarks are among his most extensive public comments since Goethals ruled the DA’s office had engaged in widespread misconduct involving informants, including running an illegal jailhouse informants network and illegally withholding evidence from defendants.

Goethals wasn’t alone in his ruling. His decision was upheld by a state appeals court, which issued a blistering assessment of the DA office’s handling of informants and evidence disclosure.

The unanimous three-justice ruling in November found the DA’s office participated “in a covert [informants] program to obtain statements from represented defendants in violation of their constitutional rights, and to withhold that information from those defendants in violation of their constitutional and statutory rights.”

“The magnitude of the systemic problems cannot be overlooked,” said the appeals court ruling, which was written by the court’s presiding justice, Kathleen E. O’Leary.

It also defended Goethals’ handling of hearings that brought to light much of the evidence of alleged wrongdoing.

“The court recused the OCDA only after lengthy evidentiary hearings where it heard a steady stream of evidence regarding improper conduct by the prosecution team. To suggest the trial judge prejudged the case is reckless and grossly unfair” the appeals ruling states. “These proceedings were a search for the truth.”

On Tuesday, Rackauckas seemed to criticize those hearings, saying Goethals went on an extensive search through unrelated cases.

“In this particular case, this hearing went off on – like a long, uh, search in all of these different cases, had nothing to do with the Dekraai case. And then – and then – and then we get these rulings,” Rackauckas said.

Later in the interview, he added: “We took the [Dekraai] informant off the table. We agreed, we’re not going to use that informant for any purpose, uh, not offer his testimony or anything about him…to the jury. The judge, uh, went ahead and continued with the motion, however, and searching through all kinds of other cases. Lots of other cases, primarily gang cases.”

A jailhouse informant was used to gather information from Dekraai, even though Dekraai had an attorney and already confessed to shooting and killing his ex-wife and seven other people in 2011 at a Seal Beach beauty salon. Under a U.S. Supreme Court ruling, it is illegal for prosecutors to send informants to gather information about defendants who are represented by a lawyer.

Rackauckas also described Goethals’ basis for removing his office from the Dekraai trial as “far removed” from the case.

“[The judge] claimed that he couldn’t trust us to properly present evidence that would – that might, uh, tend to be exonerating to Dekraai. But…those decisions that were being made are – were, uh, far – far removed from anything actually going on in the – in the Dekraai case.”

Handel noted Goethals’ ruling found misconduct in the Dekraai case. The judge, he said, wrote that “the evidence demonstrates that some of those agents have habitually ignored the law over an extended period of time to the detriment of this defendant.”

“This is a lot more than just, ‘there was conflicts’ ” Handel said, referring to Rackauckas’ earlier statement that Goethals was alleging a conflict of interest between the DA and Sheriff’s Department. “There is out-and-out accusations that you guys just blew it.”

Rackauckas took issue with that.

“No, the only thing that [Goethals] found that…actually he used to reverse the case was this – was this idea that he had of a conflict. But understand that – that uh, that these statements are not – are not, uh, in – even in relation to the Dekraai case,” Rackauckas.

Rackauckas also disputed Handel’s description of the Dekraai case – in which eight people were murdered at the Seal Beach nail salon in the county’s deadliest mass killing – as one of the most significant cases the DA has handled.

“This is probably the biggest case in 20 years. Or one of the biggest ones, and off it goes!” Handel says, referring to the DA being kicked off the case.

“We’ve had hundreds of murder cases,” Rackauckas replied.

“Not like this,” Handel said.

“We’ve had hundreds of murder cases, and we’ve had a lot of – we’ve had multiple-murder cases, and we’ve had violent gang cases,” Rackauckas replied.

“Not like this,” Handel repeated.

Rackauckas appeared on Handel’s show in response to an interview last week with the DA’s chief political rival, Supervisor Todd Spitzer, who has requested a federal takeover of the DA’s office and is expected to run for DA next year.

Handel began his interview with Rackauckas by acknowledging he has a personal relationship with Spitzer going back 35 years, when Spitzer worked as a screener for Handel’s show.

During the interview, Rackauckas leveled a new accusation against a blue-ribbon committee he appointed, which looked into informant practices and found “a failure of leadership” at the DA’s office contributed to the informant problems. The panel also found that some prosecutors have a problematic “win at all costs mentality.”

“That’s a tough one, that these are your people that you” put on this panel, Handel said.

“Tell you what, I was disappointed” about the blue ribbon committee, Rackauckas replied.

“They did not even look into the accusations, the kind of salacious accusations that you’re hearing,” Rackauckas said. “They didn’t look into anything about uh, about the basis for any of these things…it was just strictly, uh, they went by, uh, the various, uh, things that were being alleged and heard and talked about.”

Rackauckas added that the panel made recommendations for changes, and “we followed, pretty much, those recommendations” including fixing leadership problems.

“As far as that leadership thing is concerned, I think, looking back and seeing, uh, uh, what was going in the gang unit, uh, I think there were – there were some – there were some issues there. And, uh, those have all been, those have all been taken care of. Those are – those have – have completely, uh, uh, been resolved.”

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.