Orange County Sheriff Sandra Hutchens (left) and District Attorney Tony Rackauckas. Credit: Jeff Antenore for Voice of OC, and pool photo by OC Register

The County of Orange will defend the District Attorney and Sheriff’s Department from a lawsuit over the alleged misuse of jailhouse informants, after the Board of Supervisors voted unanimously Tuesday to use the county’s in-house attorneys.

The American Civil Liberties Union of Southern California (ACLU) filed a lawsuit April 4 against the county, alleging the DA and Sheriff’s Department continue to violate the rights of criminal defendants through the use of illegal informants.

Rather than seeking monetary damages, the lawsuit seeks court action to monitor the District Attorney’s use of informants going forward and require additional disclosure by the DA’s office in any case where an informant is involved.

During a closed session meeting, the Board of Supervisors voted for county counsel to defend the county against the lawsuit, rather than hiring an outside attorney to handle the case.

“I was a yes vote only because it did not involve the hiring of outside counsel and it’s going to be done in house,” said Supervisor Todd Spitzer.

Spitzer, a Republican who is running for District Attorney against incumbent Tony Rackauckas, issued a news release in which he objected to spending taxpayer dollars on outside attorneys.

“I will not vote to spend one taxpayer dime for the district attorney and sheriff who would each need their own counsel because of conflicting interests,” Spitzer said.

At a meeting earlier this month, Spitzer unsuccessfully lobbied his colleagues to have the county’s Office of Independent Review look into the allegations of the ACLU lawsuit and give recommendations for the county to prevent future legal risks.

The other four board members turned down his request, saying its not necessary while the ACLU case is ongoing. They also said lawyers defending the county in the case already are advising the supervisors.

“I don’t have the money, the budget or the time to have people doin’ double duty,” Supervisor Shawn Nelson said.

The county’s top two law enforcement agencies have been accused of running an informant program designed to elicit incriminating information from criminal defendants, in violation of their constitutional rights.

Using an informant to gather information and bolster criminal cases is not illegal, but it’s a violation of a person’s constitutional right to legal counsel if the target of that informant already is charged and represented by an attorney.

Sheriff’s deputies placed known informants in jail cells adjacent to charged criminal defendants, allegedly to gather incriminating information. Revelations about the illegal use of informants have upended at least six criminal cases and potentially affected a dozen more.

Rackauckas and Sheriff Sandra Hutchens both have denied their agencies intentionally misused informants or withheld evidence, citing a controversial Orange County Grand Jury report that blamed a handful of deputies for the illegal behavior, known informally as the jailhouse snitch scandal.

Former Superior Court Judge Thomas Goethals, who now sits on the Fourth District Court of Appeal, wrote in a ruling last year that the informant program is “well-established” and “not a myth, nor is it any sort of fantasy, fairy tale or fable.”

The Fourth District Court of Appeal, in a November 2016 ruling, described systemic abuses where confidential informants were placed “next to targeted defendants who they knew were well-represented by counsel to obtain statements.”

The California Attorney General currently has a criminal investigation into the alleged illegal use of jailhouse informants, while the U.S. Department of Justice has a separate investigation, which began in 2016, run by its civil rights division.

The state Attorney General’s office didn’t return phone calls seeking the status of its investigation and a spokesman for the U.S. Justice Department declined to answer any questions about when its investigation likely will be completed.

Contact Thy Vo at tvo@voiceofoc.org or follow her on Twitter @thyanhvo. 

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