Santana: Controversial Grand Jury Jailhouse Snitch Report Puts Focus on DA Race

Nick Berardino confronts Mario Mainero, chief of staff to Supervisor John Moorlach while OCEA legal counsel Don Droozd looks on.

They blew it.

Despite what District Attorney Tony Rackauckas and Sheriff Sandra Hutchens want to tell themselves, many insiders I’ve talked to believe our local grand jury got taken in the biggest inquiry they’ve undertaken in years.

In the big rollout event for their report last week, “The Myth of the Orange County Jailhouse Informant Program,” which also was accompanied by the biggest budget request in years, we saw a grand jury, and their foreperson, take the stand on behalf of an embattled agency like never before.

Over the past several years, it has become very clear to those of us following courtroom testimony and judicial decisions that there have been instances where deputies have been utilizing jailhouse snitches to get testimony for legal cases and disclosure of those networks to prosecutors, defense attorneys and judges has broken down.

Despite the grand jury’s attempt to study the issue, its still unclear to me how widespread the use of informants has become.

I know it’s central to our system of justice that when you are accused of a crime, the government can’t keep interrogating you while you are in custody awaiting trial and your attorney is not present.

That seems to have happened systematically in Orange County jails.

Yet to listen to Dr. Carrie Carmody, who led the grand jury, the enemy is the media.

It’s a popular song these days and in many cases, it’s well-deserved scorn.

Our own newsroom has been organized to try to counter the lack of depth on civic coverage.

Yet the media didn’t invent informants.

We are the first, rough draft of history. And unlike our current grand jury, we have to question without subpoena power. That means we can’t operate on faith.

Faith seems like something that was in too ready supply with this grand jury.

Reading the parts of the grand report indicating how many people had been interviewed and documents reviewed, reminded me of the same speech that President Nixon’s Attorney General, Richard Kleindienst, gave to journalists when the administration insisted the Watergate hearings needed to be terminated as a witch hunt.

Kliendienst later ended up resigning, finding his faith was terribly misplaced.

Now, I’m a big fan of our local grand jury. I think it’s the highest form of service a citizen can render to their community and I think all these people deserve respect and are well meaning.

They just got it wrong.

Let’s hope that Judge Thomas Goethals doesn’t listen to them and end his hearings.

We all need to figure out exactly what kind of intelligence network has been operating in our local jails and what its impact on local justice has been.

It seems to me that our local grand jury was led to construct a paper tiger of sorts – the existence of a formal jailhouse network – and then set out to furiously tear it up, almost as if they were prosecutors themselves.

Yet despite their authoritative statements about the lack of time sheets and other organizational documents for jailhouse snitches, their inquiry went silent on the six other cases that prosecutors have dropped against serious criminals recently, reportedly because of informant use problems.

I kept looking for those cases in the grand jury report and found no mention of them, which left me stunned.

If there’s no formal use of informants, why were these cases against serious criminals dropped?

Rackauckas’ recent editorial in the Orange County Register celebrating the grand jury’s report is also silent on these cases.

In addition, testimony from Sheriff’s officials in Goethals’ court these last few weeks definitely seems to point to the utilization of an informant’s program.

Lastly, the grand jury and Rackauckas also both went silent on the most recent decision by the Fourth Appellate District Court – one that most definitely keyed in on the existence of an informant network.

Now, as Carmody explained, exploring the use of those kinds of networks is not something the grand jury is capable of examining and is currently under review, reluctantly it seems, both by the California Attorney General and the U.S. Attorney General.

That makes me wonder whether our grand jurors are better off sticking to nuts and bolts issues, like animal shelters or weak governmental homelessness response, rather than trying to tackle jailhouse intelligence networks.

Unfortunately, the agencies charged with investigating this don’t seem too interested in a deep dive.

The California AG arguing in court against taking over prosecution of the Dekraai case that prompted this debate. And U.S. Attorney General Jeff Sessions meanwhile has indicated he's scaling way back on civil rights division cases, which would impact any probe on informants.

During Sessions' recent rough hearings on Capitol Hill, which featured tense exchanges between him and California Senator Kamala Harris (our former California AG), I found it ironic that probably the only thing both had in common was their collective lack of action on the snitch scandal in Orange County.

So what’s the takeaway?

When it comes to local government, we can’t always rely on institutions like the grand jury or the California Attorney General or the federal Department of Justice.

Most often at the local level, accountability comes down to the people we put in office.

So far, it’s come down to one public defender, Scott Sanders, and one judge, Goethals, as the people who are holding our government accountable.

Now, the snitch scandal also has really put a heightened focus on our main law enforcement job in Orange County, one that’s up for election next year, the District Attorney.

This past Friday, after reading the grand jury report several times, I spent some time visiting with the Chapman University law professor who people like state Sen. John Moorlach are pointing to as a possible third-option candidate for the DA job.

Mario Mainero was just voted the school’s most popular law professor and was a central force behind the recent adoption of a countywide ethics commission.

Now, I’m not endorsing anybody in the DA’s race but I thought readers should know more about the person people are pointing to as an alternative to Rackauckas or his main challenger, Supervisor Todd Spitzer, especially because I covered him closely during my tenure as a reporter at the Orange County Register.

Before heading to Chapman Law School, Mainero was a controversial figure as a chief of staff to Moorlach during his tenure as an Orange County Supervisor.

Mainero’s main strength and weakness as a public servant are the same.

He’s totally apolitical, which is how he says he’ll run the DAs’ office.

And when he sees himself in the right, he doesn’t back down…or off.

Mainero gained the intense ire of the Deputy Sheriff’s union when he helped devise, along with former County Supervisor Chris Norby’s Chief of Staff Eric Norby, the controversial lawsuit that tried to eliminate retroactive pension benefits for law enforcement. County officials eventually lost the suit on appeal and Mainero and Moorlach were both criticized for wasting taxpayers’ dollars on a bad lawsuit.

When union members flooded the fifth floor of the Hall of Administration in a historic protest over budget cuts, most politicians stayed behind closed doors. Mainero came out right in the midst of an angry crowd and stood toe to toe, arguing with Nick Berardino, then-GM for the Orange County Employees Association.

Mainero was also a key figure in the Chamberlain jailhouse murder case that spawned the aimless Office of Independent Review in 2008. Once the scandal – a man accused of child molestation beaten to death while guards watch TV – started unfolding, Moorlach sent Mainero to the jail, where he immediately documented everything he saw, such as TVs being taken out of the guard shacks, and later shared his insights in public about the lack of accountability inside the jails.

While he worked with Rackauckas and Hutchens on OIR, Mainero and Rackauckas also have clashed.

When it came time to review the odd dealings of the politically influential board of directors for the OC Fairgrounds, and their deal to buy the property as a non-profit, Mainero was central in a county counsel letter to Rackauckas from county supervisors that forced an investigation.

Rackauckas later produced multiple reports that cleared the board and criticized Mainero.

A staunch Catholic, Mainero also got on the bad side of Rackauckas when he suggested that our current DA save money by cutting back on death penalty appeals.

During our chat, which was cut short due to a student needed tutoring, Mainero admitted to me he’s no politician, saying his wife is advising him against running, wanting him to guard his health by staying at Chapman, which by all accounts seems to be a good fit.

Yet Mainero also told me he is deeply troubled by what’s come out about the snitch scandal, saying he sees it as a clearly a systemic problem for both prosectors and the jail.

He saw this most recent grand jury report as totally flawed, adding it has really galvanized him to run.

Mainero told me he gives much more weight to the Fourth District Court of Appeals decision criticizing the systemic use of jailhouse snitches and believes Orange County’s criminal justice complex is in trouble because of a “win at all costs mentality.”

That phrase keeps popping up lately, first in Rackauckas' own internal reviews and now it's even made its way into in the very grand jury report that Rackauckas himself is waving all over town as vindication on the current snitches scandal.

Could it become the slogan behind next year’s District Attorney’s race?