Orange County’s top two law enforcement agencies, the District Attorney’s Office and Sheriff’s Department, are under extremely unusual scrutiny from state and federal authorities over the use of jailhouse informants.
The question now is, what, if anything, will result from the investigations.
“Looking into a prosecutor’s office is very rare,” said Peter Joy, a legal ethics expert and law professor at Washington University School of Law in St. Louis, Mo.
“I’m not aware of any other time that there’s been a [U.S. Department of Justice] investigation into – and this is both the prosecutor’s office and Sheriff’s [Department] – into their use of jailhouse informants.”
Two former federal prosecutors agreed.
“It’s quite rare, if it’s ever happened before,” said David Slansky, who worked as an assistant U.S. attorney in Los Angeles and now teaches criminal law at Stanford. “It’s not uncommon to see scandals in law enforcement to be associated with the use of informants. But I would say that the scale and the [systemic nature] of the allegations here are unusual.”
“Typically you think of prosecutorial misconduct as a one-off, a single prosecutor who stepped outside the bounds,” said Heidi Rummel, who prosecuted police misconduct for the U.S. Attorney’s office in Los Angeles and now teaches at USC.
“I can’t think of another example where…two different agencies (the U.S. Dept. of Justice and state Attorney General) felt the need” to investigate the “policies and practices in the office.”
Sheriff Sandra Hutchens and her chief spokesman declined to comment on the probes.
“We are going to let the investigations take their course and will not be making any statements while the investigations are ongoing,” said the spokesman, Lt. Lane Lagaret. He formerly was in the sheriff’s unit that worked jailhouse informants and testified about it in court Thursday.
Court rulings found a pattern of Orange County prosecutors and sheriff’s officials abusing their power in an effort to win criminal cases, culminating in a November ruling from a state appeals court.
In the appeals court decision, the justices unanimously ruled DA and Sheriff officials repeatedly violated defendants’ constitutional rights through an illegal jailhouse informants program. The defendants and their lawyers weren’t told the jailhouse informants were used to gather information against them.
“The magnitude of the systemic problems cannot be overlooked,” the justices stated. They upheld a lower court ruling that found the DA’s office couldn’t be trusted to prosecute Scott Evans Dekraai, who had confessed to the deadliest mass murder in county history – and kicked the entire DA’s office off the case.
The state Attorney General now is prosecuting Dekraai, who has been convicted, in the penalty phase of his trial that determines whether he will spend life in prison or be sentenced to death. And disclosures in the Dekraai case about use of jailhouse informants led to convictions for murder or other major crimes in six unrelated cases being overturned.
In December, the U.S. Department of Justice announced a federal civil rights investigation into the DA’s office and Sheriff’s Department’s use of informants. That came in addition to two other investigations – by the California Attorney General’s Office and Orange County Grand Jury – into what’s known as the “jailhouse snitch scandal.”
The state and federal investigations are still ongoing, while the grand jury is scheduled to release its civil findings Tuesday.
According to legal experts, the results of the federal investigation could be affected by U.S. Atty. Gen. Jeff Sessions statements that the Justice Department will pull away from civil rights investigations of local law enforcement. In addition, the results of the state and grand jury probes, experts said, will depend on how deep and thorough they are. The quality of grand jury reports can vary depending on the expertise and commitment of county residents who volunteer each year to serve on the panel, as well as the legal guidance jurors are given.
U.S. Justice Department
DA Tony Rackauckas’ chief of staff Susan Kang Schroeder said in a telephone interview the DA has fully cooperated with the federal civil rights investigation
She said the federal probe isn’t investigating the DA’s office criminally. The Justice Department announced its investigation in December as a civil probe into potential civil rights violations.
“We’ve been working with [the Justice Department] to get every inquiry answered,” Schroeder said.
She said she can’t predict the outcome of the investigation, but “there’s been no evidence that shows there has been…a pattern of violations of civil rights.”
In the Dekraai and other cases, she said attorneys in the DA’s office “always have turned over all evidence that was in our [possession].”
“We haven’t been keeping information from the defense. We have always turned over all we could. It’s hard to turn over information we don’t know about.”
Since the evidence disclosure allegations, the DA’s office also has provided “hundreds of hours of training” to the Sheriff’s Department and police agencies on their disclosure requirements, Schroeder said. Before that, she said, they were only getting “a few number of hours” of instruction on disclosure at the training academy.
Agents with the Federal Bureau of Investigation (FBI), which is part of the Justice Department, and officials with the Justice Department itself have been conducting interviews in Orange County as part of the probe.
The federal civil rights investigation could result in a lawsuit by the Justice Department to force reforms on local enforcement that are overseen by a court-appointed monitor, according to legal experts. The threat of the lawsuit typically leads the investigated agency to agree to a settlement called a consent decree.
And even if a consent decree is reached, its effect may be limited.
“The problem with these decrees when they’re not enthusiastically [embraced] by management,” is that when they tell officials to follow the law “they’re pretty much meaningless,” said Lawrence Rosenthal, a former federal prosecutor on public corruption cases who now teaches law at Chapman University.
Rosenthal noted Sessions’ desire to “pull back” from federal civil rights cases against local law enforcement.
“I will not be surprised if [U.S.] Attorney General [Jeff] Sessions does not follow up on it (the Orange County investigation),” Rosenthal said.
California Attorney General
As for the state probe, Schroeder said: “there’s no investigation by the Attorney General’s office of us.”
California Attorney General Xavier Becerra’s office said Thursday it is “conducting a criminal investigation” related to the informants issues but declined to comment on whether it is investigating the DA’s office.
“To protect its integrity, we can’t comment on the details of this ongoing investigation—including any comments on the scope or potential targets of the investigation,” the AG’s office said in its statement.
The state Attorney General (AG)’s office announced in March 2015 it was conducting “an independent investigation” into issues surrounding law enforcement use of informants in Orange County, including Judge Thomas Goethals’ findings of “evidence discovery violations” in the Dekraai case.
It’s statement at the time said “the Attorney General believes the findings of the court regarding the discovery violations in this case are serious and demand further investigation. But, as the (appeals) court found, ‘there is no direct evidence that the District Attorney actively participated in the concealment of this information from the defense and the court.’
“Under these circumstances, combined with the court’s proper imposition of evidentiary sanctions and the fact that the Orange County District Attorney’s office has 250 prosecutors, the court’s order recusing the entire District Attorney’s Office from this case lacks legal justification and must be appealed.
“The Attorney General’s Office will conduct an independent investigation into the alleged discovery misconduct in this case.”
A spokeswoman for the AG’s office said in November the probe had expanded beyond the initial scope as additional issues came to light, but did not give specifics, saying only investigators had spoken with dozens of witnesses and poured through “thousands of pages of documents.”
Rosenthal, the former federal public corruption prosecutor, said he didn’t anticipate strong action from the Attorney General’s office.
“I have seen no evidence that [former California] Attorney General [Kamala] Harris or her successor is really interested in doing anything about this problem,” Rosenthal said.
Orange County Grand Jury
The county grand jury, in addition to looking into jailhouse informant issues, apparently heard testimony from three DA investigators who have filed legal claims against the county, alleging high-level cover ups within the DA’s office of possible crimes as well as alleged destruction of evidence in a murder case, and say they’ve testified to the grand jury.
The Grand Jury hired a former U.S. Attorney for the Los Angeles-Orange County area, Andrea Ordin, and the Strumwasser & Woocher law firm as “special counsel and special investigators” for the grand jury’s civil investigation of the informants issues. The grand jury obtained a $400,000 budget increase from the Board of Supervisors in November to cover those costs.
According to the state AG’s office, Ordin and the law firm were hired “to investigate and present evidence to the grand jury, for possible further action by the grand jury.”
The grand jury also can recommend further investigation by law enforcement, such as the state Attorney General or federal Justice Department, and hand off aspects of its inquiry to the next grand jury, which takes office July 1.
This is the second time Rackauckas has been the subject of Attorney General and grand jury probes.
The 2001-2002 grand jury, with assistance from then-Attorney General Bill Lockyer’s office, issued a highly critical report alleging a wide range of improprieties. Their final report said Rackauckas personally intervened in a case involving a friend, and another case involving a significant campaign donor who had co-hosted a “very lucrative” fundraiser for Rackauckas.
That grand jury report, which Rackauckas’ office disputed at the time, also alleged “widespread violations of County and District Attorney’s Office policies in the area of using employee time and office equipment for non/County business purposes, including political activities.”