LOS ANGELES ― A civil rights group has accused Orange County Sheriff Sandra Hutchens and District Attorney Tony Rackauckas of running a longstanding, secret and illegal jail informant program that has violated the rights of countless defendants for over 30 years, according to a bombshell lawsuit filed Wednesday.
The complaint, filed in Orange County Superior Court by the American Civil Liberties Union along with the ACLU Foundation of Southern California, bolsters the allegations of Assistant Public Defender Scott Sanders that the county was running an expansive jailhouse informant program. The corruption scandal has rocked the county’s criminal justice system for more than four years and has led to the unraveling of nearly 20 high-profile cases and threatens to upend still more.
The ACLU claims that the Orange County Sheriff’s Department and Orange County district attorney’s office have colluded to plant a large number of informants in jail cells for decades in order to obtain damning information from defendants who are charged with crimes and are awaiting trial. Such interrogations can give prosecutors an unfair advantage, by giving them access to information without the knowledge of the inmate’s lawyer. The Sixth Amendment prohibits the use of government-directed informants to question defendants who have already been charged with crimes.
The suit says that jail informants frequently obtained information and confessions from defendants through threats of violence, including murder, and that they were rewarded for their unlawful work by the district attorney’s office and the sheriff’s department with payments and sentence reductions. In court, prosecutors illegally withheld how and why their informants gleaned the damning information, despite being required by law to disclose this information to defendants and their representatives, according to the lawsuit.
“By running this massive, underground jailhouse informant scheme, the district attorney’s office and the sheriff’s department are cheating Orange County out of justice,” Brendan Hamme, staff attorney at the ACLU of Southern California, said in a statement. “They have won countless convictions based on unreliable information — the results of jailhouse informants’ coercion of defendants — that they passed off in court as solid, sound, and legal. Hiding the facts of the coercion from the defense is just one of the many ways they broke the law and endangered justice.”
The ACLU is urging the court to order the agencies to comply with the law regarding the use of jail informants and evidence gathered from them. If Rackauckas intends to use a jail informant in a case, the ACLU says, the court must order the informant’s complete case history turned over to the defendant, including information on any special treatment the informant has received for their work and any testimony the informant has produced. The ACLU also urged the court to order the DA’s office to identify all cases affected by jail informants, to notify those who may be eligible for relief and provide all relevant informant evidence to them. The ACLU is also asking that a monitor be appointed to ensure that the agencies comply with any court orders.
The ACLU filed the complaint on behalf of a court watchdog group called the People for the Ethical Operation of Prosecutors and Law Enforcement as well as three Orange County residents: Theresa Smith, whose son Caesar Cruz was killed by Anaheim police; Tina Jackson, the founder of an organization that provides prisoners and their families with various services; and Bethany Webb, whose sister was killed and her mother critically injured by Scott Dekraai in a 2011 massacre of eight people in Seal Beach, the deadliest mass shooting in the county’s history.
Dekraai’s case remains at the center of the jail informant scandal, and much of what is understood about the system grew out of Sanders’ work in that case after he learned Dekraai, his client, was placed in a cell next to a known jail informant.
Last year, in a rare move, then-Superior Court Judge Thomas Goethals excluded the death penalty option for Dekraai due to “ongoing prosecutorial misconduct,” and the prosecution team being “unable or unwilling” to provide all relevant records to ensure that Dekraai would get a fair penalty trial. Goethals instead sentenced Dekraai to eight consecutive life terms in prison without the possibility of parole.
The sentencing came two years after Goethals had recused Rackauckas’ entire office from further prosecuting the mass murder case. In that ruling, Goethals chastised sheriff’s deputies who had previously testified, saying that they “either intentionally lied or willfully withheld information” during their testimony about informant use in jail. He acknowledged that there was no direct evidence Rackauckas had actively participated in the concealment of evidence but still faulted the prosecutor for “chronic failure” to comply with his court orders to produce evidence, which violated Dekraai’s constitutional rights.
Just days after the 2011 shooting, sheriff’s deputies moved Dekraai next to a prolific jail snitch, Fernando Perez, who questioned Dekraai about his case. Then prosecutors and law enforcement officers interviewed Perez, and a recording device was placed in Dekraai’s cell, capturing more than 100 hours of conversations between the pair.
Sanders requested more information about the contacts between the two men. He discovered that Perez had also been used as an informant in a number of other cases, including against another one of his own clients.
Prosecutors said it was simply a coincidence that the same informant was used against two of Sanders’ most high-profile clients, but the public defender didn’t believe that. He pushed to uncover what would turn out to be tens of thousands of records about the use of informants inside county jails by prosecutors and sheriff’s deputies. In a blistering 505-page motion filed in 2014, Sanders detailed all of his findings, which demonstrated the existence of the informant program.
Over the next four years and three evidentiary hearings ordered by Goethals to examine the government misconduct in the case, Sanders would ultimately uncover a disturbing trove of long-hidden records related to the informant program: a two-decades-old computerized system that detailed critical information about jail inmates and informants; more than four years of logs created by deputies who managed the informants; and internal sheriff’s department memos, including one boasting of “hundreds of informants.” Altogether, the records detailed a robust and well-established practice of cultivating and utilizing jailhouse informants against unsuspecting defendants.
However, sheriff’s officers testified that there was no informant program in Orange County jails and that there were no records of informant movements or other documents related to informant activities. Goethals and a state appeals court determined that the testimony was false or intentionally misleading. The sheriff’s department continues to deny the existence of the program.
The sheriff’s department has acknowledged deficiencies in its policies and protocols involving jailhouse informants. It has also implemented changes regarding the handling of inmates. It has disbanded a unit, called Special Handling unit, that was at the center of the scandal, replacing it with a new unit that has many of the same duties as the old one but which, the sheriff’s department claims, is better equipped to respond to court orders.
Rackauckas has maintained that none of his prosecutors intentionally behaved inappropriately and that the scandal has been overblown. The DA’s office also said new policies and training regarding the use of informants have been implemented.
The U.S. Department of Justice, the California attorney general’s office and the Orange County grand jury have all launched investigations into the allegations of misconduct. Last year, the grand jury produced a controversial report on their findings, which were based almost entirely on interviews with prosecutors and sheriff’s staff. The grand jury called the scandal a “myth” perpetuated by the media and a “witch hunt.” Its report was blasted by legal experts who said it was proof of the need for an outside, truly independent investigation.
During the Dekraai proceedings last year, Goethals also took a swipe at the grand jury findings, saying from the bench that “this well-established program is not a myth, nor is it any sort of a fairy tale.”
A unanimous three-justice panel on California’s 4th District Court of Appeal also found in 2016 that the cheating by prosecutors and sheriff’s officials in the county was very real, writing in an opinion that the “magnitude of the systemic problems cannot be overlooked.”
The other two investigations remain ongoing. No charges have been filed against any government official accused of wrongdoing linked to the jail informant scandal.
This article has been updated to include a quote from Brendan Hamme.