OC Grand Jury Wants Jailhouse Informant Hearing to Stop, Saying There’s No Widespread Violations

Jeff Antenore, Voice of OC Contributing Photographer

Orange County Grand Jury Foreperson Carrie Carmody delivers the findings and recommendations resulting from a year-long investigation into the use of jailhouse informants during a press conference at the Santa Ana Police Department on Tuesday morning, June 13, 2017.

Orange County’s civil grand jury said Tuesday an ongoing court hearing about possible misuse of jailhouse informants and withholding of evidence has turned into a “witch-hunt,” and should stop after the grand jury determined there is no “systemic, widespread informant program.”

In its report, titled “The Myth of the Orange County Jailhouse Informant Program,” the grand jury called for an end to Superior Court Judge Thomas Goethals’ ongoing evidence hearing, in which the judge is deciding whether he can trust the Sheriff’s Department to turn over all the material he has ordered as part of the court’s discovery process.

“The current search to get to the bottom of potential discovery violations in the Dekraai case has devolved into a witch-hunt for agency corruption; a search that after 5 years and more than 40,000 pages of court documents remains fruitless,” the grand jury wrote.

“Any further investigation of potential widespread, systemic institutional wrongdoing surrounding discovery or informant issues in Orange County would be far more appropriately addressed by [the ongoing state Attorney General and U.S. Justice Department investigations] and not by the trial court for the largest confessed mass murderer in Orange County history.”

The grand jury blamed any wrongdoing involving jailhouse informants on “a few rogue deputies who got carried away with efforts to be crime-fighters,” and unnamed District Attorney officials who didn’t didn’t pay attention to disclosure issues.

(Click here to read the grand jury report.)

The findings are starkly different from what an appeals court ruled in November. That unanimous decision found “systemic problems” with informants and evidence disclosure at the Sheriff’s Department and DA’s office and said Goethals had conducted  “a search for the truth” that revealed “evidence regarding improper conduct by the prosecution team.”

Both the Sheriff’s Department and District Attorney’s office issued statements Tuesday saying the grand jury report vindicates what they’ve long been saying about the informants.

“The report validates many past statements made by Sheriff Sandra Hutchens regarding the use of jailhouse informants and confirms a departmentally sanctioned program does not exist,” the Sheriff’s Department said in a statement.

The DA’s office said the grand jury report confirmed the DA’s “steadfast position” and “debunked the media ‘witch-hunt’ for agency corruption.”

Tom Dominguez, president of the Association of Orange County Deputy Sheriffs, said in a statement, "what's important to us....is the deputy sheriffs who were involved in this case were characterized as not being properly trained, didn't understand fully the breadth and scope of what they were doing.

“We've been saying that all along. I have to give credit to Sheriff Hutchens [who has been saying] that in fact they did not receive the training that they should have.”

During the hearing in Goethals’ courtroom, six sheriff’s officials have pled their Fifth Amendment right against self-incrimination, rather than answer questions. Some have been granted immunity by the state Attorney General’s office in order to get them to testify.

The hearing came after an appeals court in November upheld Goethals’ ruling kicking the DA’s office off prosecuting the largest mass murder case in Orange County history, that of Scott Evans Dekraai, who confessed to shooting and killing eight people in Seal Beach in 2011.

“Not only did the [Orange County District Attorney’s Office] intentionally or negligently ignore the [Sheriff’s Department’s] violations of targeted defendants’ constitutional rights, but the OCDA on its own violated targeted defendants’ constitutional rights through its participation in the [confidential informants] program,” the appellate ruling states.

The grand jury report does not discuss the appeals court’s findings. The grand jurors provided a long list of documents they examined, saying they total more than 40,000 pages, but the appellate decision isn’t included in the list.

The informant disclosures in the Dekraai case have led to convictions being overturned for murder or other major crimes in six other criminal cases. In one of those cases, that of accused killer Isaac Palacios, one murder charge was dismissed, and in a second murder charge the DA agreed to a plea deal that granted him probation.

Scott Sanders, the public defender who has led the effort to uncover potential informant misconduct, said the grand jury was mistaken in focusing on whether there was a formal informants program.

"When you hide evidence in jails you usually don't create an official program,” Sanders told reporters Tuesday.

Additionally, he said the grand jurors “never closely examined allegations of long term informant evidence concealment.”

Six months into their probe, Sanders said, he was interviewed by the grand jury and expected to be asked detailed questions by jurors. “But such questioning never took place,” he said in a written statement.

Sanders said that when he wanted to go into detail about cases with the grand jury, “the questions were, ‘Do you hate prosecutors?’ ’Is there any prosecutor you like?’ ”

“We never had a deep dive into the facts. I knew from that meeting that it was kind of written in stone.”

In its findings, the grand jury described the informants situation as simply a misunderstanding on the part of a few “rogue deputies” who got too eager to be crime fighters and lacked knowledge of their requirements to disclose evidence to defendants.

“A handful of special handling deputies drifted from their custodial duties, over a period of years, into investigating crimes. The lack of proper supervision and appropriate policies allowed this to continue longer than it should have,” the grand jury wrote.

“This drift does not constitute [a Sheriff's Department] jailhouse informant program, but rather the work of a few rogue deputies who got carried away with efforts to be crime-fighters.”

The grand jury found that in most jailhouse informant cases they reviewed, sheriff’s deputies were targeting informants in a legal way, by seeking information from defendants about separate possible crimes from the ones they had been charged with.

The grand jury said that approach is legal under the Illinois v. Perkins decision by the U.S. Supreme Court.

The grand jury also took issue with the findings of a panel of experts Rackauckas commissioned to review the DA’s use of informants, known as Informant Policies & Practices Evaluation Committee (IPPEC).

That committee found what it described as a problematic “win at all costs mentality” at the DA’s office, and that “a lack of leadership” there “appears to have contributed to the jailhouse informant controversy.”

The grand jury said the committee’s conclusion about a cultural problem was made “rather tenuously” because the committee’s interviews were “primarily limited to lower level staff.”

At the same time, the grand jury did find that the DA’s office continues to suffer from leadership problems after the office disregarded recommendations from a 2002 grand jury report.

“After nearly 100 interviews with OCDA personnel, it became clear to the [current grand jury] that lack of leadership persists,” the report states.

The way the DA’s office has been structured, it wrote, creates an environment in which “abuses are seldom caught and prosecutors have almost unlimited autonomy to prosecute cases as they deem fit.”

The grand jury attributed the DA’s evidence disclosure issues to “high caseloads,” “communication breakdowns” with outside agencies, and “an inexcusable inattention” to disclosure issues “by a few individuals.”

“These errors do not indicate a system of abuse, but rather a lack of supervision and laziness in the practice of law,” the grand jury wrote.

The grand jury also called on the county Board of Supervisors to cancel the contract for an independent monitor of the DA’s office that the IPPEC committee had recommended, calling it “a waste of County money.”

Voice of OC reporter Thy Vo contributed to this story. Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.