Federal authorities issued a scathing report Thursday finding OC District Attorney Todd Spitzer’s office has failed to thoroughly review “systematic” violations of constitutional rights by prosecutors and sheriff officials in an illegal jailhouse informant program.
The informants scandal – which happened under Spitzer’s predecessor, Tony Rackauckas – caused at least a half dozen convictions for murder and other serious crimes to be overturned or dismissed from 2007 to 2016. Courts ruled that sheriff officials and prosecutors illegally used informants and hid evidence from defendants and the court.
The misconduct also caused an Orange County Superior Court judge to kick the entire Orange County DA’s office off of prosecuting the deadliest mass killing in county history after Scott Dekraai shot and killed eight people in a Seal Beach nail salon in 2011.
“The Orange County District Attorney’s Office and the Orange County Sheriff’s Department operated a [jail] informant program that systematically violated criminal defendants’ Sixth Amendment right to counsel and Fourteenth Amendment right to due process of law,” federal Justice Department officials wrote in a news release.
While they credited DA and sheriff leaders with implementing several reforms, federal investigators say important reforms at both agencies still have not been implemented to prevent similar civil rights violations from happening.
Federal authorities also found that Spitzer hasn’t fully looked into the scale of the informant problems.
“Even now, almost six years after the Dekraai recusal ruling, OCDA has failed to undertake a sufficient inquiry into the scope of the custodial informant program in Orange County,” the report states, calling for an independent body to examine the issue.
In a Thursday statement, Spitzer said his office has been asking for reform ideas and has been fully cooperating with the U.S. Department of Justice investigation.
Spitzer said he would “look forward” to implementing more reforms in the future.
But he did not say which of the changes recommended by federal authorities – if any – he would implement, although he said his office has already implemented some changes ahead of the report’s release.
“I have been cooperating fully with the United States Department of Justice’s Civil Rights Division over the entire four years I have served as District Attorney,” Spitzer said in his statement.
“I took immediate action. I refuse to allow the constitutional violations that occurred from 2007-2016 from being repeated and to provide relief to defendants whose rights were violated.”
Spitzer did not address the Department of Justice’s findings about him failing to fully probe the informants issue and calls for an independent body to review old cases.
In a statement late Thursday, OC Sheriff Don Barnes pointed to several improvements he said the department made following the scandal, specifically focusing on the benefits of new training programs.
“I look forward to the DOJ reviewing our current policies, processes and procedures regarding custodial informants,” Barnes said. “I am confident they will find our current practices have addressed many of their recommendations.”
Federal investigators called on Orange County to create an independent panel to take a deeper look at the informant violations.
“OCDA’s internal investigation failed to address all of the constitutional violations that we identified, or that may have occurred in cases that the agency did not identify for us. For this reason, we think it is critical that Orange County establish an independent body to conduct a more comprehensive review of past prosecutions involving custodial informants.”
[Click here to read the federal report.]
When asked about the creation of a new panel, the county’s most recent law enforcement watchdog Sergio Perez called it “an absolute must,” and praised the work of investigators, adding he previously worked in the same division at the beginning of his career.
“I think that independent body should be empowered to access the information it needs to review past prosecutions and it should have the authority to make its findings public,” Perez said in a Thursday phone interview.
Monday’s announcement by the U.S. Department of Justice was accompanied by a 63-page report detailing what federal investigators found – including ongoing failures to take steps to curb further violations.
Federal investigators found the DA’s Conviction Integrity Unit isn’t getting the job done when it comes to finding those impacted by the snitch scandal, adding that the onus is currently on each defendant to find and prove factual innocence.
“Placing such a high standard upon individual defendants is particularly misplaced where, as here, OCDA itself possesses a wealth of evidence of these violations,” the report states.
Spitzer did not respond to this in his statement.
The informant violations were first revealed in 2014 by defense attorney Scott Sanders, who was widely criticized by law enforcement but ultimately won major court rulings confirming his core allegations after a series of hearings.
“There’s a lot of excitement for us. This is what we’ve been arguing and presenting since 2014,” Sanders said in a Thursday phone interview.
“It’s abundantly clear to them, as it was to us, that there were massive civil rights violations.”
After the informants scandal prompted public backlash from judges and attorneys – including kicking the DA’s office off the 2011 Seal Beach mass shooting – DA and sheriff officials took steps to reduce the chances of further rights violations, according to the federal report.
But the sheriff and DA haven’t yet implemented a series of critical reforms to protect against violations, federal authorities found.
California’s Top Prosecutors Sit on Sidelines
Under California’s Constitution, the state attorney general is tasked with holding local law enforcement accountable – and even has the power to take over local investigations.
But when it came to Orange County’s jailhouse informants scandal, state AGs did not take any clear action to hold locals accountable.
In fact, then-state AG Kamala Harris sided with the DA’s office in appealing the key 2015 ruling that found systemic informant violations. She also rejected calls for a widespread investigation of the DA’s office.
Meanwhile, her office said it was investigating after then-OC Superior Court Judge Thomas Goethals found that local law enforcement officials “either intentionally lied or willfully withheld material evidence from this court” when testifying.
But Harris later acknowledged she saw the issue as best left to the local community to address.
“I knew misconduct had occurred, clearly it had,” Harris told The New York Times in 2019 when she was running for president. “And it was being handled at the local level.”
She didn’t say how it was being handled at the local level, but said she viewed it as an issue for voters to decide whether to remove a DA.
The AG’s office later ended its investigation without charging anyone without an explanation for its decision.
The Orange County sheriff’s deputies’ union was one of the largest donors statewide supporting then-state Attorney General Xavier Becerra’s election in 2018, according to campaign finance records.
The union was the biggest donor to the largest political action committee financing Becerra’s election.
Federal Investigators Take a Hard Look at OC’s Track Record
The federal report reviewed cases stretching from 2007 to 2016, but pointed out that neither the Sheriff’s Department nor the DA’s office had done enough to make sure nothing like this happens again.
“The evidence reveals that custodial informants in the Orange County Jail system acted as agents of law enforcement to elicit incriminating statements from defendants represented by counsel, and that for years OCSD maintained and concealed systems to track, manage, and reward those custodial informants,” federal investigators stated in their report.
“The evidence also reveals that OCDA prosecutors failed to seek out and disclose to defense counsel exculpatory information regarding custodial informants,” the report continued.
“We therefore have reasonable cause to believe that this pattern or practice of conduct by both agencies resulted in systematic violations of the Sixth and Fourteenth Amendments.”
According to the report, the sheriff’s Special Handling Unit used its control over the jail’s housing systems to place informants near investigative targets, and gave benefits to informants like reducing their charges or sentencing.
Federal investigators also said the two agencies repeatedly violated the Sixth Amendment, which prevents law enforcement from using informants to get information from defendants who have been charged with a crime and are represented by an attorney.
“But this is exactly what OCDA and OCSD did,” investigators wrote. “OCSD placed informants in proximity to represented defendants so that the informants could elicit inculpatory statements in the absence of the defendant’s counsel.”
“The way that OCDA and OCSD used custodial informants repeatedly violated defendants’ Sixth Amendment right to counsel.”
The report also states the sheriffs’ department hid records for tracking and managing the jailhouse informants, and did not turn over required information to defendants.
Federal investigators found that prosecutors were often unaware they had information that’s required to be turned over to defense attorneys because it was being held by sheriff’s deputies, which violates the 14th Amendment.
They said that while it’s been eight years since much of the department’s misconduct surfaced, the DA’s office hasn’t done enough to make sure prosecutors understand what they’re required to disclose and that the two agencies need to work better together and share more information.
Specifically, federal investigators recommend creating a new panel to review past prosecutions that could’ve also been affected by the jailhouse panel, alongside a slew of new training for sheriffs’ and prosecutors.
Sanders says he hopes it’s enough, but isn’t sure it will be without proper oversight.
“I think all of these are potentially important recommendations if someone, or an agency like the DOJ is looking over their shoulder to make sure the recommendations are being implemented in reality,” Sanders said.
“But if they’re just counted on to do it with encouragement, it’s not enough. History says it’s not enough.”