Part two of a two-part series. Read part one here.
Why did it take years for the Orange County Sheriff’s Department to unearth jailhouse informant records and turn them over to Superior Court Judge Thomas Goethals?
It’s one of several questions Goethals is considering before ruling Aug. 18 on whether or not confessed mass murderer Scott Evans Dekraai faces the death penalty.
Other issues he’s dealing with include why the Sheriff’s Department ended a trove of notes kept by jail deputies on their interactions with informants known as a special handling log; why there is a nearly six-month gap in the entries, and whether deputies destroyed documents that should have been turned over to the court.
It was nearly two years after Goethals ordered the Sheriff’s Department to produce a database of inmate movements known as TREDs, that the records finally were produced in 2014. And then more than another year went by before the department turned over the 1,157-page special handling log in 2016.
During weeks of testimony this year, Goethals heard from 21 Sheriff’s Department witnesses who attempted to answer what took so long and who knew what about the use of informants, an issue now known as the “jailhouse snitch scandal.”
Both the TREDs and special handling logs contained evidence about how the Sheriff’s Department worked with informants inside the jails, including illegally obtaining incriminating evidence on inmates.
The department says those records have now been produced, and they’ve learned from their mistakes.
Why did the Special Handling Log End?
Sergeants and lieutenants supervising the Special Handling unit, a jail unit that handles sensitive and high-profile inmates, including informants, testified in the hearing this year they were not aware of the special handling log despite supervising the deputies who wrote in it.
And those who were aware of the log said they did not read it.
Lt. Dave Johnson, who oversaw the Special Handling unit as a sergeant, said the log existed when he first began supervising the unit. He resurrected its use, although he doesn’t remember exactly when, among special handling deputies because he believed the log could show management the value of work done by the unit. Johnson said he only checked the log a few times after he ordered deputies to begin using it
Asked by Assistant Public Defender Scott Sanders, Dekraai’s attorney, if he read the entire log, Johnson said he only read a redacted version after it was published in a newspaper in 2016.
Sgt. Raymond Wert meanwhile testified he ordered deputies to stop using the log in January 2013 because he believed it was redundant and unnecessary. Wert said he never read the log.
Sanders has argued it was no coincidence Wert ended the special handling log just days before the court was set to rule on a major discovery order, and that the sergeant was motivated to get rid of the log to avoid the disclosure of the use of an informant in another court case where he was the lead investigator.
He points to an email sent Jan. 22, 2013 by Assistant District Attorney Dan Wagner, the former prosecutor on the Dekraai case, in which Wagner notifies Deputy Seth Tunstall that Goethals will rule on multiple subpoenas, which would have required them to turn over the special handling log.
The next day, Deputy William Grover and Benjamin Garcia wrote in the log about meeting with Wert and then-Sergeant Martin Ramirez.
“One of the biggest changes will be concerning this log…..It will NO LONG (sic) BE A LOG…..but rather a document of IMPORTANT INFORMATION SHARING ONLY,” Grover and Garcia wrote in the Jan. 23 entry.
Deputy Attorney General Michael Murphy, who took over prosecution of Dekraai after Goethals removed the District Attorney’s Office, said Sanders’ argument doesn’t make sense because Wert didn’t conceal or hide the log, even though it took more than three years to turn it over.
“The redacted version is here in court today – it still exists,” Murphy said.
Did Deputies Destroy Evidence?
Between March and early October 2011, there are no entries in the special handling log, a gap that has gone unexplained.
Sanders believes it’s because the Sheriff’s Department deleted those entries to destroy damaging evidence that Fernando Perez, the prolific informant to whom Dekraai confessed, was working with law enforcement to illegally get confessions from two other inmates, separate from the Dekraai case.
That evidence would have undermined the prosecution’s argument at the time that Perez was not an informant but a well-meaning inmate who volunteered the information.
Jailhouse informants can’t be used to get information from inmates who already have been charged and have a lawyer.
Lt. Michael McHenry, who helped gather jail documents for court cases, gave Goethals his theory for the gap in log entries.
“I can think of two. Journaling like that log takes a lot of effort, and if you’re busy and no one’s paying attention, it doesn’t get done,” McHenry said.
“That’s the random explanation. What’s the other explanation?” Goethals asked.
“It got deleted,” McHenry said.
Deputy Jonathan Larson, meanwhile, testified that “the log was being done the whole time” he was in the Special Handling unit.
Larson did not remember exactly when he began working in Special Handling, although the log references him being there as early as September 2010.
He also couldn’t explain an interview he gave to Sgt. Mike Few, as documented in an October 2016 memo. Few writes that Larson said he “and other team members discontinued the log for a period of time in 2011.”
“I thought I told him that it started in 2011 because it was not being done prior to that,” Larson said in response to questioning from Murphy.
Multiple entries in the Special Handling log from 2009 and 2010 also suggest deputies may have shredded old files despite a department-wide order not to destroy any records.
Carol Ann Morris, assistant director of the Sheriff’s support services division who manages records and their destruction, testified that in 2009 there was a blanket order for the department not to destroy any records, triggered by a Department of Justice investigation into the fatal beating of an inmate, John Chamberlain, by a group of inmates.
Sanders has also raised questions about why, in response to a subpoena, he did not receive a copy of a 2014 records retention schedule, that determines when old records can be destroyed.
Sanders requested all retention schedules in 2016 and received instead a version from 1979.
He later obtained a copy of a 2014 retention schedule approved by the Board of Supervisors through an unnamed source, and what it showed was that jail staff had added three new categories of documents related to informants to the policy, which would allow the jail to destroy those records after three years.
Sanders has alleged the Sheriff’s department requested the changes to the retention schedule, and then purposefully did not disclose the document which would allow them to destroy potential evidence.
Vanessa Reid-Mena, who was tasked with handling the subpoena for the retention schedule, testified the record wasn’t disclosed due to miscommunication. She said at the time she thought another employee was responsible for disclosing the 2014 record.
In his closing argument, Sanders said he believed Reid-Mena when she said the nondisclosure was an accident.
Why Weren’t the TREDs disclosed?
TRED records, an internal computer database used by the Sheriff’s Department to track inmates’ housing movements, are meant to ensure inmates are safe, gang enemies aren’t housed together, and at times manage informants and undercover operations.
The records are relevant because they can show if informants are housed near inmates who are charged with a crime and represented by an attorney, which can violate a defendant’s constitutional rights to legal counsel.
The TRED system was apparently unknown to the public, defense attorneys, Dekraai’s prosecutors, and even to Goethals, despite his own experience as a deputy district attorney and defense attorney.
So Sanders said it was a surprise when he received TRED records in August 2014 in response to a subpoena, showing informants were moved near Dekraai and other jailed defendants to gain information in violation of their rights.
That information also contradicted two sheriff’s deputies, Tunstall and Garcia, who testified in previous hearings they didn’t work with informants. In their testimony, they also avoided mentioning the TRED system when asked about it.
Tunstall and Garcia also said they were specifically trained not to mention TRED records in court testimony.
In a 2015 ruling, Goethals remarked that the problems with court discovery were far worse than he thought.
“A wealth of potentially relevant discovery material – an entire computerized data base…which is a repository for information related directly to the very issues that this court was examining…remained secret, despite numerous discovery orders issued by this court,” Goethals wrote.
He dismissed the entire Orange County District Attorney’s Office from prosecuting Dekraai and the California Attorney General took over the prosecution.
The Sheriff’s Department has argued the TRED records are not secret and have been disclosed in other court cases. Sanders has questioned why the department hasn’t publicly stated which court cases those are.
The department’s policy about whether to release TREDs in response to subpoenas changed in recent years, according to testimony from Lt. Cathy Irons.
Irons testified that, prior to 2014, when a subpoena was received, Sheriff’s Department officials might exclude certain jail files on the basis those documents are privileged under the penal code. Those documents were not turned over to County Counsel, which would usually decide whether a document is privileged, or to the court.
That changed in 2014, Irons said.
“At some point that penal code wasn’t going to keep them out anymore. And so the change of direction was county counsel needed to have everything and they would discuss in court what was actually going to be disclosed or not,” said Irons.
What Documents Are Left?
In addition to taking over the prosecution of Dekraai, the Attorney General’s office is conducting a criminal investigation into the Sheriff’s Department and has generated documents related to that investigation, which might contain information that should be disclosed to the defense.
Murphy and his staff searched nearly 8,000 documents and eight shared drives that were given to the Attorney General by the Sheriff’s Department, a search which produced ten pages of emails.
Sanders still isn’t satisfied, and in his closing argument argued there have been far too many alleged coincidences and delays for him to trust that the prosecution team has turned everything over.
“If I said in 2014, I think there’s a lot of evidence still out there, you know what everyone would have said?” Sanders said. “‘You’re a conspiracy theorist.’”
Murphy, who largely stuck to legal arguments and avoided discussing the testimony about informant use, said Sanders has lobbed baseless accusations.
“At bottom, their argument is, ‘we’re certain they’re hiding something, I can’t even tell you what it is, but they must be holding something back,’” Murphy said. “That’s not a [legal] standard, that’s not proof, that’s just speculation.”
Murphy said the Sheriff’s Department should be given credit for eventually providing the records.
“Yes, begrudgingly. Yes, it took orders and time. But these are the people that did provide it to the defense so that we could expose all this information,” Murphy said.
Contact Thy Vo at [email protected] or follow her on Twitter @thyanhvo.