Three years after the California Attorney General’s office began a criminal investigation into illegal use of jailhouse informants in Orange County, the AG has not taken any official action or filed charges.
Complicated investigations can take years, but a deadline is looming: the expiration of the three-year statute of limitations on state perjury charges against three Sheriff’s deputies who are accused of lying under oath about their work with informants during testimonies in 2014 and 2015.
“The Attorney General has had more than three years to file charges, and despite indisputable perjury, concealment and obstruction of justice, no action has been taken,” said Scott Sanders, the assistant public defender who uncovered the jail informants scandal.
“If these were ordinary members of the community some of these charges would have been filed within weeks,” Sanders said.
Attorney General Xavier Becerra, asked May 2 by Voice of OC whether his office will file charges against the three deputies, declined to comment on any aspect of the ongoing investigation, citing a law enforcement norm not to talk about investigations until official actions are filed. But he told a reporter he will “go after anyone we can who we have evidence has violated the law,” including law enforcement.
“If we’re engaged in any particular investigation, you can guarantee it’s a priority…otherwise we wouldn’t be engaged in it,” said Becerra, responding to a question about whether the informant investigation is a priority. “What we do based on that action will become more clear if we find there’s enough evidence to move forward.”
Becerra, who is up for election this year, was in Orange County for a joint news conference with Undersheriff Don Barnes – who is running to replace Sheriff Sandra Hutchens – to announce the arrest of 85 people with Mexican Mafia ties.
The jailhouse snitch scandal, as it is informally known, involves the use of jailhouse informants by the District Attorney’s Office and Sheriff’s Department to obtain incriminating evidence against defendants, without the knowledge of defense attorneys. Although using informants is generally legal, it can violate the constitutional rights of inmates who have the right for their lawyer to be present during any questioning.
Illegal use of informants has resulted in reduced or thrown out charges in at least seven criminal cases – including one where a gang member facing two murder charges walked free – and potentially affected a dozen more. Sanders alleges the DA and Sheriff have run a secret, sanctioned informant program for decades and any case involving an informant in the past three decades should be reexamined.
The scandal sparked investigations by both the state Attorney General, which opened a criminal probe in March 2015, and the U.S. Department of Justice (DOJ), which began investigating in December 2016. Both agencies declined to comment on the status of their investigations or answer any questions about them.
Three Sheriff’s deputies — Seth Tunstall, Benjamin Garcia and William Grover – have been accused by Sanders of lying during various sworn court testimonies in 2014 and 2015. Former Superior Court Judge Thomas Goethals, whose courtroom was the stage where much of the informant scandal unfolded, also concluded in a ruling that Tunstall and Garcia “either intentionally lied or willfully withheld material evidence” from the court.
So far, no Sheriff’s personnel have been disciplined related to the informant scandal. Tunstall, Garcia, Grover and five other current or retired personnel are the subject of three internal investigations by the Sheriff’s Department, which won’t begin until the Attorney General’s Office completes its probe.
Tunstall, Garcia and Grover have been on paid administrative leave since late 2016.
Attempts to reach lawyers for the three deputies was unsuccessful. Paul Meyer, a defense attorney who has represented Tunstall in the past, declined to comment on whether he still represents Tunstall on the perjury charges. Another attorney who represented Grover and Garcia last year, Jan Christie, did not return requests for comment.
The president of the Association of Orange County Deputy Sheriffs, Tom Dominguez, said in a written statement deputies relied on the legal expertise of homicide prosecutors and otherwise received limited training.
“The deputies in this case were not trained investigators and certainly not homicide investigators. They had not been properly educated and instructed on discovery requirements or informant protocols,” Dominguez said. “Sheriff Sandra Hutchens has publicly stated that the deputies assigned to the Special Handling Unit were not properly trained to do the job assigned to them.”
Becerra inherited the investigation from the previous Attorney General, current Democratic U.S. Senator Kamala Harris, who drew criticism for her approach to the snitch scandal.
Harris announced the investigation just after Goethals issued a blistering ruling removing the DA from the high-profile prosecution of mass murderer Scott Dekraai for discovery violations and failure to turn over evidence. In a statement at the time, Harris said “the findings of the court regarding the discovery violations in this case are serious and demand further investigation” but “there is no direct evidence that the District Attorney actively participated in the concealment of this information from the defense and the court,” making the recusal of the DA inappropriate.
Harris lost that appeal, and the 4th District Court of Appeal not only unanimously upheld Goethals’ decision but also found “systemic problems” with the use of illegal jailhouse informants. The Attorney General took over prosecution of the Dekraai case and sought the death penalty. But Goethals rejected the death penalty last year after deciding repeated failures by the Sheriff to turn over evidence undermined Dekraai’s right to a fair trial.
“[The AG] took a litigation position I found to be very, very disappointing and highly insensitive to the serious issues the judge raised,” said Lawrence Rosenthal, a professor of law at the Chapman University Fowler School of Law and a former federal prosecutor. Rosenthal noted leadership of the office has since changed. “Whether the AG’s performance will improve has yet to be seen.”
Sanders, who represented Dekraai, believes the Attorney General has “no appetite” for the criminal investigation.
“They played along with higher-ups in the [Sheriff’s Department] who told them preposterous stories about how they were ignorant about their own deputies’ improper work with informants, when documents, communications and personnel reviews show this was preposterous,” Sanders said in an email.
Several officials at the Sheriff’s Department testified last year that illegal informant use was the work of a few overzealous sheriff’s deputies in the jails, without the knowledge of their supervisors or top management. The department also has attributed the illegal informant use to a lack of proper training for deputies, not deliberate criminal behavior.
At least one deputy, Jonathan Larson, testified his supervisors were aware of deputies’ work with informants.
“So now the AG likely feels stuck,” Sanders speculates. “If they go after the low hanging fruit, those deputies will legitimately point to supervisors–as they began doing at the end of the Dekraai hearings–and accurately claim that everything they did wrong was with the encouragement and support of their bosses.”
But perjury is a difficult crime to prove, said Laurie Levenson, a law professor at Loyola Law School who served on a panel of attorneys that called for state and federal investigations into the DA’s use of informants.
It’s not enough to show that deputies made false or misleading statements, she said. Prosecutors also have to prove they did it willingly and deliberately, said Levenson, a former federal prosecutor.
Prosecutors also could request defendants waive the statute of limitations on the charges, a tactic Levenson said she used as a prosecutor. That would give the Attorney General more time to conduct its investigation, although a spokeswoman for the AG did not respond to questions about whether investigators have obtained a waiver.
Levenson said it’s no surprise authorities are taking their time to investigate, given the complexity of this issue.
“This is an investigation that has a lot of twists and turns – it has political elements, ongoing cases, witnesses taking the fifth, judges who are throwing out the death penalty,” Levenson said. “My guess is the AG has turned this into…an overall evaluation of what happened during the informant scandal, and that would take a long time.”
Levenson noted the federal statute of limitations on perjury is longer, and would give the Department of Justice five years to prosecute from the time of discovery of the crime.
“The other problem, frankly, might be that nobody wants to make a decision. Everybody’s waiting for somebody else to bring the charges or decline the charges,” Levenson said. “Or nobody wants to bring the case and lose it.”
A recent civil lawsuit filed by the American Civil Liberties Union of Southern California will thrust the issue into the public spotlight again. The ACLU is asking a judge to force the county to disclose any instance where an informant has been used and compile a database of informant information.
A key revelation in the snitch scandal was the disclosure of two sets of documents: a database known as TRED showing the movement of inmates to different cells within the jail, and a catalog kept by deputies who supervised high profile inmates and informants, known as the special handling log.
Although Sanders subpoenaed those documents in early 2013, the TRED records weren’t disclosed until August 2014, raising questions about why the disclosure took so long.
Tunstall and Garcia, who belonged to the Special Handling unit that dealt with informants and regularly used the TRED database, both downplayed their work with informants when they testified in 2014, with Tunstall saying it was not his responsibility to cultivate or manage informants. They were also questioned at length about the reason for particular inmate movements, but did not mention the records where they could find the answer to those questions, the TRED database.
After the database was disclosed, Goethals reopened the hearing, and the deputies testified again in 2015.
Sanders questioned Tunstall about a 2013 statement he made for a search warrant in a different case, in which the deputy wrote he personally “cultivated, interviewed and supervised numerous confidential informants.” In his 2015 testimony, Tunstall said he used the “wrong” words.
Sanders also pointed to court testimony in 2009 and 2011 where Tunstall acknowledged his work with informants.
Meanwhile, Garcia testified in early February 2015 that he was trained to believe the TRED records were highly confidential, but he was not explicitly told not to mention them in court. He said he believed he could talk about the records but not reveal their contents.
Later that month, Garcia testified again, saying he couldn’t talk about the database in court because that’s how deputies were trained.
Sanders found 2009 testimony in a separate case where Garcia explained the use of TRED records by Sheriff’s Deputies.
Another set of records, the special handling log, were disclosed in 2016 in a separate case, when a deputy brought copies of the log to a court appearance to help him refresh his memory. Grover, who also worked in special handling, testified in 2014 that he spent “less than zero” time working with informants.
The disclosure of the special handling log in 2016 showed Grover kept prolific documentation of his work with informants for more than five years. Sanders also found an internal performance evaluation in which Grover touted his work with informants, as well as a slideshow about informant use created by Grover.
When called to testify in other cases involving informants, the deputies have invoked their Fifth Amendment right against self-incrimination. Tunstall, known as an expert on the Mexican Mafia, has declined to testify in cases involving the gang, which has prompted prosecutors to reconsider their charges in some of those cases, according to the Orange County Register.
During a hearing in 2017, Tunstall, Grover and Garcia invoked their Fifth Amendment right again and declined to testify. Invoking the Fifth Amendment is not an admission of wrongdoing.
The last DOJ investigation into Orange County law enforcement began in late 2008 and was triggered by the 2006 fatal beating of John Derek Chamberlain by other inmates at Theo Lacy Jail. The investigation is believed to be ongoing.
Since the informant investigations began, leadership in the White House and Department of Justice has changed dramatically.
U.S. Attorney General Jeff Sessions has said that he would “pull back” on monitoring police departments, a reference to an Obama-era focus on police departments with potential civil rights violations.
Hutchens, meanwhile, has aligned herself favorably with the Trump Administration by publicly opposing California’s “sanctuary state” law.
Levenson said she thinks it’s unlikely the Trump Administration would kill the informants’ investigation.
“I think [Sessions] had in mind excessive force and consent decrees,” Levenson said, adding that career prosecutors who work for the DOJ’s Civil Rights division are “non-political.” “Although extraordinary things are happening with this White House.”
“I think it’s unlikely, but not impossible,” she said.
Rosenthal, citing the state Attorney General’s previous defense of the OC District Attorney, said he doesn’t have much faith the AG or DOJ investigations will result in accountability.
“Nobody is going to get any satisfaction from the criminal justice system. There isn’t going to be meaningful reform until the [California State Bar] starts looking at people’s law licenses,” Rosenthal said. “Until it’s addressed as an ethical issue, there’s not going to be any meaningful reform.”
Sanders says the federal DOJ is the county’s only hope for accountability in the snitch scandal.
“If the DOJ does not act, it simply assures that many will be deprived of justice and the same misconduct that got us here will continue in perpetuity,” Sanders said.
Contact Thy Vo at [email protected] or follow her on Twitter @thyanhvo.