Former District Attorney Tony Rackauckas secretly decided last year not to have his prosecutors tell defense attorneys about 10 sheriff deputies suspected of lying about or concealing records about jail informants in the so-called jailhouse snitch scandal.
Rackauckas reportedly overruled his senior management in deciding to not place five of the deputies on the “Brady” list prosecutors use to disclose possible dishonesty by law enforcement witnesses.
Asked Tuesday why he overruled his staff on this, the former DA said he made his judgement after reviewing “all of the evidence very carefully.”
Rackauckas’ Dec. 20 letter to outgoing Sheriff Sandra Hutchens and her successor Don Barnes also shows he knew months before the public did that the state Attorney General’s office had decided not to prosecute sheriff’s deputies for lying about informant records.
In a text message to Voice of OC Tuesday evening, Rackauckas said “my judgement was that there was insufficient evidence to put them on a Brady list should there be litigation concerning the matter.”
Prosecutors are required to tell defense attorneys about any prior dishonesty by witnesses from law enforcement involved in the case, in what is known as the Brady list.
Rackauckas said it was around October or November of last year that he learned the AG decided not to file charges, after a higher-up AG official told senior DA prosecutor Jim Tanizaki.
It would be another five or six months before AG officials publicly revealed their decision not to prosecute, during a court hearing in mid-April.
Todd Spitzer, who defeated Rackauckas in November, told the Board of Supervisors Tuesday the decision not to tell defense attorneys about the 10 deputies was made “unbeknownst to me and my entire executive staff, who’s here, and I retained the senior assistant district attorneys (from the Rackauckas administration).”
Spitzer’s disclosure reignited questions about illegal withholding of evidence in criminal cases.
In 2015, then-Superior Court Judge Thomas Goethals, who now is an appeals court judge, found two deputies lied in his courtroom to conceal key evidence about illegal law enforcement use of informants. Attorney General Xavier Becerra has repeatedly declined to explain the decision not to prosecute.
In his December letter, Rackauckas cleared five of the deputies against the advice of his own senior management attorneys, who had prepared a legal analysis about it six months earlier, according to Spitzer, the new DA.
“He kept that a secret and they were shocked that he did that without discussing it with them since they wrote him the analysis,” Spitzer told a Voice of OC reporter Tuesday.
Rackauckas said Tuesday he shared his letter with senior DA management involved with the issue at the time he sent the letter to the sheriff officials.
“I reviewed all of the evidence very carefully, and that is my judgement,” Rackauckas wrote in a text message.
Rackauckas’ letter clearing the deputies is dated Dec. 20, about three weeks before he was scheduled to leave office.
“It is beyond unusual to have your staff write you memos, wait six months, and then after you lose your election, on your way out the door,” clear them, Spitzer said.
“It’s like granting pardons on your way out of office….If he had done this on a press release…there would have been an opportunity to inquire of him on the public record. But he did it after he lost, and he did it after the deputy sheriffs [union] spent hundreds of thousands of dollars on his campaign,” Spitzer added.
The deputy sheriff’s union spent $372,000 to support Rackauckas in his failed 2018 re-election bid, and $651,000 for Barnes, and nothing for Spitzer.
The Orange County deputy sheriff’s union also helped finance Becerra’s re-election last year. It was the No. 2 donor, at $10,000, to the second-largest group financing Becerra’s re-election, the California Statewide Law Enforcement Association Independent Expenditure Committee.
Rackaukas’ letter to the sheriff officials says he reviewed his staff’s recommendations, but doesn’t say what the recommendations were and doesn’t explain his reasoning for clearing them. He did write a separate three-page memo explaining his decision that was put into an internal DA file, according to Spitzer.
While the AG’s office didn’t reveal it had ended its investigation until mid-April, Rackauckas told sheriff leaders months earlier that it was over.
“My decision is unaffected by the Attorney General’s investigation and decision not to pursue criminal actions against OCSD or OCDA personnel related to the Dekraai proceedings,” Rackauckas wrote in his Dec. 20 letter to Hutchens and Barnes.
Scott Dekraai, who shot and killed eight people at a Seal Beach beauty salon in 2011 – the worst mass killing in Orange County history – faced the death penalty, but because of the informants scandal the entire DA’s office was removed from the case and he was instead sentenced to eight consecutive life terms in state prison.
More than a month after Rackauckas wrote his letter to Hutchens and Barnes, on Jan. 28, Barnes said he was tired of waiting for the AG’s investigation to conclude, furthering the public perception the investigation was ongoing.
In a statement Tuesday, Barnes’ spokeswoman, Carrie Braun, said Barnes did receive Rackauckas’ December letter, “but only the Attorney General’s office can provide the results of their investigation. To this day, we have not been notified by the AG’s office regarding the status or conclusion of their investigation. We decline to comment on the letter or the comments at today’s Board meeting by DA Spitzer.”
In a follow-up statement, Braun said sheriff officials, after receiving the DA’s December letter, asked the AG’s office again about “the status of their investigation and received no reply.”
The AG’s office has repeatedly declined to say why it did not prosecute the deputies. Becerra’s press secretary did not return a voicemail and text message asking when the decision was made not to prosecute.
“Rackauckas obviously had some insight back in December about the AG, while the rest of us have been guessing the whole time? So what does he know? I have no idea,” Spitzer said Tuesday.
Under U.S. Supreme Court rulings and California law, prosecutors must disclose relevant evidence to defendants, including past lying by law enforcement officers, in what’s known as the Brady rule.
The failure to disclose such evidence in OC has led in recent years to least half a dozen major criminal convictions, including for murder, being tossed out.
Spitzer first publicly brought up Rackauckas’ letter at the county budget hearing Tuesday, in response to Supervisor Michelle Steel proposing to de-fund the county’s Office of Independent Review (OIR), which monitors sheriff and DA policies.
Spitzer disagreed with Steel and spoke in favor of OIR, saying it was an important check on his office. Spitzer said he tried to have the OIR look into whether he should reverse Rackauckas’ decision to not place the deputies into the so-called “Brady file” that’s disclosed to defense attorneys. But supervisors hadn’t approved that scope of work so the OIR didn’t review it, Spitzer said.
Rackauckas’ letter was released later Tuesday by the DA’s office in response to inquiries from Voice of OC.
Assistant Public Defender Scott Sanders, who uncovered the snitch scandal, said Rackauckas narrowly tailored his question in a way that avoided the real issue.
“The only way you would possibly make the Brady analysis in this way is if you want to guarantee that [the deputies] will be cleared. Because it isn’t designed to answer the critical question, which is did they cover up the [special handling informants] blog at the time, did they cover up the evidence at the time? That’s the question,” Sanders said.
“It’s not two and a half years later, you answered an email whether you had evidence in your possession. Because they almost certainly wouldn’t have had it in their possession,” Sanders added.
“This is so blatant in how deceptive this is in the analysis, that it is really frightening about what is going on there, in order for them to keep from having to turn over [evidence].”
Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at email@example.com.