3 snitch scandal investigations threaten change for sheriff, D.A.

A year ago, the county’s justice system looked to be emerging from the jailhouse informant scandal. Today, it’s melting down. What happened?

BY TONY SAAVEDRA AND ANDRE MOUCHARD / STAFF WRITERS

Ten months ago, at a community forum in Santa Ana, Orange County Sheriff Sandra Hutchens told the crowd that her deputies did not cultivate a secret network of jailhouse informants to illegally gather confessions from accused criminals.

District Attorney Tony Rackauckas sat nearby, nodding in agreement. He too denied wrongdoing in his department, later saying allegations that prosecutors routinely misused informants and withheld evidence from defense attorneys were nothing but the wild imaginings of a public defender and the inaccurate reporting of a media that didn’t understand the facts.

“You’ve heard the conspiracy theories… ” Hutchens said, referring to allegations about a network of jailhouse informants and a computer database known as TREDS, that would show how deputies track informants in county jails.

“None of it is true.”

Actually, that’s still being sorted out. And because of that, as 2016 comes to a close, Orange County’s justice system is in crisis.

At least three investigations — by the Orange County Grand Jury, the California attorney general and, as of this month, the U.S. Department of Justice — are actively looking at the scope and depth of missteps by local prosecutors and Sheriff’s Dept. jailers.

Documents suggest investigators almost certainly have moved beyond the question of if a network of informants was run in O.C. jails and, instead, are looking at how long such a network operated, and to what degree it’s been used — and might still be used — to win convictions.

Many of the laws and strategies under scrutiny are complex, but some of the most basic questions are straightforward:

Are county prosecutors and jailers working within constitutional rules to put away criminals?

Or, as a growing number of critics have suggested, is there a win-at-all-costs culture among those who hold the keys to justice in Orange County?

The world is watching. Stories about the county’s snitch scandal have popped up in everything from legal journals to the New York Times. And experts who spent careers as prosecutors — such as former California Attorney General John Van de Kamp and former federal prosecutor Richard Drooyan — are on record questioning methods embraced in Orange County.

Hutchens and Rackauckas declined to speak for this story. But what investigators learn about their departments in coming months could determine if both elected officials will get to maintain independent control of their jobs, or if they’ll soon work under the oversight of federal minders.

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Public reprimands

Even in February, as Hutchens and Rackauckas spoke at the forum, evidence was public that showed prosecutors had used at least one informant improperly. That was done in an effort to ensure that admitted mass murderer Scott Dekraai — the killer of eight people at a Seal Beach hair salon in 2011 — would get the death penalty.

In fact, the forum was held nearly a year after an Orange County Superior Court judge ruled that local prosecutors and jailers should no longer be part of the Dekraai case, saying they could not “be trusted” to give Dekraai a fair hearing. Still, Hutchens and Rackauckas insisted — and continue to insist — the Dekraai debacle was a one-off, a misguided but honest effort to ensure that justice was served, not part of a broader problem.

But over the rest of this year evidence emerged, and judicial rulings were issued, that showed the informant question wasn’t limited to Dekraai.

In late 2014, a judge had ruled that some of the TRED records that the sheriff’s department refused to talk about should be turned over to defense lawyers. Today, most of the TRED records remain under seal, but separate sheriff’s logs, some of which became public in court filings recorded early this month, unveiled intricate details of deputies’ long-running work with jailhouse informants.

The logs, written in the deputies’ own words, showed that for many years local jailers cultivated key informants, rewarded them when they provided information and, in a few instances, let drug deals proceed to a point that would allow informants to maintain their roles as trusted inmates within the jails.

The logs described informants giving deputies information that helped them run a safer jail — a routine and legal use of informants.

But the logs also showed that deputies created situations in which informants would gather information from other inmates about alleged crimes, a potentially illegal use of informants. The logs also showed that deputies destroyed records in ways that didn’t follow any specific protocol, another potentially illegal practice if done to cover up crimes by jailers or prosecutors.

The logs described how deputies created at least one snitch tank, where a cluster of cells were wired and informants were placed near targeted inmates in order to get them to speak about their alleged crimes.

And while favored informants received special treatment, fast food and sometimes money for telling what they heard, the logs described how some grew cocky and demanding. At least one was caught drunk on a homemade jail moonshine, called pruno.

(File photo, Orange County Register/SCNG) Sandra Hutchens

And there may be more logs. At least some entries indicate that while the jailers felt they should stop keeping the records once the court became aware of the practice, in 2013, they would continue keeping their records in another venue, away from prying eyes.

The judge in the Dekraai case, Thomas Goethals, ordered all informant documents be turned over, but for three years the sheriff’s department hasn’t complied, saying this year that some records can’t be found because they don’t exist.

This month, Goethals’ frustration became public. He threatened Hutchens with a contempt citation and rebuked her from the bench:

“She has claimed… at some points that (the logs) were just a private diary, that no one else in the department knew anything about; so she couldn’t be blamed for not turning it over. At other times, she has claimed that this is a critically important official document without which the jail couldn’t run efficiently or safely.

“I don’t know what her current position is. But the inconsistency of her claims certainly jumps out at this court.”

But Hutchens wasn’t the only local leader criticized so publicly.

While the deputies’ logs showed an intricate relationship between jailers and informants, a 3-0 ruling by the Fourth District Court of Appeal, released in November, upheld the decision to toss county prosecutors off of the Dekraai case and offered a legal-ese spanking of Rackauckas and Hutchens and their departments.

For example, the justices wrote that the decision to use a snitch against Dekraai wasn’t a rarity, as claimed by Hutchens and Rackauckas. Instead, the justices wrote, it was part of a “well-established program.” And they added that the point of the county’s snitch program was to gain convictions: “There is no legitimate reason for the (Sheriff’s Dept.) to create and maintain such a sophisticated, synchronized and well-documented (informant) program other than to obtain statements that will benefit prosecutions.”

The justices also agreed with broader allegations that Orange County prosecutors routinely withhold evidence from defense lawyers, writing that “past substantial discovery failures are evidence that (the O.C. District Attorney’s office) cannot be relied upon to comply with its discovery obligations in this case moving forward.”

And, critically, the appellate justices flatly disagreed with contentions by Rackauckas and Hutchens that any missteps in their departments are inconsequential.

“The magnitude of the systemic problems cannot be overlooked.”

A few weeks later, in mid-December, the Fourth District issued a ruling on an follow-up appeal, from Rackauckas, who had asked that some of the harsh language in the ruling be stricken from the court record. The language, the court ruled, would stand, but they would add lines to indicate that Orange County prosecutor didn’t agree with them.

Open invitation

Still, a basic question remains: Are O.C. courts fair?

The answer could come soon.

The D.A. responds Tony Rackauckas wrote an op-ed piece responding to the investigation.

This month, the U.S. Department of Justice launched a civil rights investigation into the DA’s office and the sheriff’s department. It’s believed to be one of the first times federal officials have looked at prosecutors and sheriff officials in the same jurisdiction at the same time.

The federal investigation is also something both Rackauckas and Hutchens have said they welcome.

(File photo, Orange County Register/SCNG) Tony Rackauckas

After a report was issued early this year that described the District Attorney’s office as “a ship without a rudder,” suffering from “a failure of leadership, a frustrated Rackauckas said this: “We know there is no evidence whatsoever of any of this sensational wrongdoing that’s been alleged. If a federal investigation will put this to rest … then let’s get it done.”

But that was in January, before sheriff logs showing the depth of the informant program became public, and before the Fourth Circuit Court of Appeal found “extensive misconduct” among prosecutors and jailers.

So far, the prospect of a federal investigation has been applauded by legal experts not connected to the county.

Many point out that fairness in Orange County courts isn’t a trivial issue, or something that only defense lawyers might use as a dodge to get an otherwise guilty defendant out of court. Instead, they say, confidence in the court system is critical to American judicial ideals.

“Do you want to put the wrong guy in jail?”

“Do you want to put the wrong guy in jail?” asked John Van de Kamp, former California Attorney General.

“The notion, of course, is to take the bad people off the street for the necessary time. In the meantime, you have to have a system that does not produce wrongful convictions or violate the constitution.

“Clearly, there has been a hide-the-ball situation,” Van de Kamp added. “And games are still being played.”

Following the rules also is important when it comes to keeping guilty people in jail.

At least a half-dozen cases in Orange County have unraveled over the past two years because judges found wrongdoing by prosecutors or jailers or both. Last month, Bryant Islas, who received a six-year plea deal in November 2015 for attempted murder because of informant problems, was paroled from prison. Before the deal, Islas faced a life sentence.

Now that the Justice Department is in Orange County, what happens next?

People who’ve worked on federal investigations say Justice Department lawyers will gather documents, conduct interviews and possibly take depositions from locals connected to county cases. This will help them get a picture of what’s happening.

They could find that the system is working as it should. Or they could find that constitutional rights are being violated.

If they find that rights are being violated, they could meet with county prosecutors and jailers to get them to agree to stick to practices that don’t violate federal law, using a contract called a consent decree. If county officials resist, the Justice Department can take the District Attorney and the Sheriff’s Department to court, forcing the reforms.

It’s even possible that federal officials, for a time, will be tasked with overseeing local prosecutors as part of a plan to manage changes.

Another part of the investigation could involve looking at past cases and what, if anything, they say about the current culture among prosecutors and jailers.

(Associated Press) Scott Sanders

The assistant public defender who has brought informant problems to light, Scott Sanders, has said that he has evidence of some 30 cases, prosecuted over several decades, in which there was improper use of informants or failure to disclose evidence.

One of the cases involves Thomas Thompson, who was executed in 1998 for the 1981 murder of 20-year-old Ginger Fleischli.

Thompson was convicted based on the testimony of two informants who said he confessed to committing the murder on his own. But county prosecutors also convicted a second man for killing Fleischli, based on different versions of the death.

The same prosecutor handled both cases.

The fact that the DA’s office, then led by Cecil Hicks, used different informants in preliminary hearings and trial to say different things about the same crime showed that “informants were being assessed not for the truthfulness of their claims about the statements they received, but about whether they could help secure the sought-after win,” according to a legal brief filed by Sanders years later.

Sanders says culture among local prosecutors hasn’t changed.

“Over the course of decades, not a single prosecutor nor police officer was willing to speak up and reveal that evidence was being systematically withheld from the accused,” Sanders said. “And it’s not as if the silence is stopping or the truth is suddenly flowing.”

(File photo, The Orange County Register/SCNG) Scott Dekraai

Even as federal investigators bear down on Orange County, the Dekraai case could resume soon. California’s incoming Attorney General, Xavier Becerra, has until Tuesday to appeal the district attorney’s removal to the state Supreme Court or accept the state’s role as lead prosecutor in the penalty phase for Dekraai.

Relatives of Dekraai’s victims hope Becerra moves quickly. They say their lives have been in limbo for five years now, at least partly because of missteps by county prosecutors.

In mid-December, some spoke publicly about the case, saying they think the quickest way to peace is by sparing Dekraai’s life.

“We have no choice but to collectively agree we do not want the death penalty pursued,” said Paul Wilson, whose wife, Christy, was killed.

“We are exhausted from this continuous pain, and this has got to be over with. Life will never be the same for us.

“But we should have the chance to move on.”

Contact the writer: tsaavedra@scng.com