U.S. Senator Kamala Harris, former state attorney general, defended her refusal to launch a large investigation into the Orange County District Attorney for the jailhouse informant program and said the county could handle it, reported the New York Times.
“I knew misconduct had occurred, clearly it had,” Harris told the NY Times. “And it was being handled at the local level.” She didn’t say how it should be handled at the local level.
The jailhouse informant program was discovered by public defender Scott Sanders during the Scott Dekraai murder trial. Dekraai shot eight people to death in 2011 inside of a Seal Beach salon, including his ex-wife.
Although Dekraai confessed to the killings to law enforcement and pleaded guilty in 2014, former Superior Court Judge Thomas Goethals threw out the death penalty because the Orange County Sheriff’s Department used a secret jailhouse informant to get a confession from Dekraai and the department gave the confession to the DA. Goethals is now an appellate judge.
The DA’s office, under Tony Rackauckas at the time, didn’t share the jailhouse informant’s background working with prosecutors with Dekraai’s defense attorney, Sanders. In 2015, Goethals barred the Orange County District Attorney’s office from prosecuting Dekraai’s case because the revelation of similar other jailhouse snitch scandals surrounding other cases, Rackauckas lost his re-election bid in November to former county Supervisor Todd Spitzer.
Although Harris launched a criminal probe into the DA’s office in 2015 over the jailhouse snitch program, she also appealed Goethals’ order barring the DA’s office from prosecuting the case. She lost the appeal in a unanimous decision by the 4th District Court of Appeal, where Goethals now works. The court also found “systemic problems” with the illegal jailhouse informant program.
The state Attorney General’s office, now under Xavier Becerra, didn’t respond Monday to questions about the probe or the possibility of conducting a large investigation into the DA’s office.
Chapman University law professor and former federal prosecutor Lawrence Rosenthal said Goethals’ order barring the county prosecutor’s office was “aggressive.”
“Judge Goethals was really pushing the envelope, I think, out of frustration,” Rosenthal said. “So I do not fault Attorney General Harris taking the legal position of it being reversed, because it was a very aggressive order.”
But Rosenthal also said the Harris failed to recognize the “incompetence” in the county prosecutor’s office.
“The tone of the brief (Harris’ court filing) is really quite unfortunate. Because the brief did not seem to address the level of professional incompetence in the conduct of the Orange County DA’s office,” he said. “I have been involved in that kind of litigation before — it’s really quite critical if you are going to appeal that case, that you make clear to the court that you understand what went on and you are taking corrective action to remedy it. There’s very little of that in the brief.”
The state Attorney General’s office, which took over the Dekraai prosecution after Goethals barred the DA, has yet to act on the investigation or issue a report.
Becerra also declined to comment on the investigation in May 2018, but said 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.”
Charges have been reduced or thrown out in at least seven criminal cases because of the jailhouse snitch program.
Isaac Palacios received probation after facing two gang-related murder charges because prosecutors didn’t disclose evidence obtained by jailhouse informants to Palacio’s defense attorney. Superior Court Judge Patrick Donahue threw out one murder charge and Palacio agreed to a guilty plea deal for probation on the second murder charge.
“There’s certainly been lots of scandals involving local law enforcement, but I can’t say that I’m familiar with anything involving a prosecutor’s office, involving this kind of systemic misconduct,” he said.
Rosenthal also said if “mature, sober judgement” had been used by both the county prosecutor and the state Attorney General, an appeal on Goethals’ decision would have been unnecessary.
“The real losers in this whole appeal were all the victims and their families of this horrible shooting … this matter could have been resolved with a much greater process had everybody just taken a breath, acted like adults and decided, ‘you know what we don’t need to appeal it, let’s just get the case resolved.’”
Spencer Custodio is a Voice of OC staff reporter. You can reach him at firstname.lastname@example.org. Follow him on Twitter @SpencerCustodio