DOJ Finds Orange County Sheriff, DA Violated Civil Rights Using Illegal Jailhouse Informants

After a six-year investigation, the DOJ says Orange County law-enforcement unconstitutionally used jailhouse informants to elicit confessions and incriminating evidence from people for years.

Orange County District Attorney Todd Spitzer
Orange County District Attorney's Office via YouTube

DOJ Finds Orange County Sheriff, DA Violated Civil Rights Using Illegal Jailhouse Informants

After a six-year investigation, the DOJ says Orange County law-enforcement unconstitutionally used jailhouse informants to elicit confessions and incriminating evidence from people for years.

The U.S. Department of Justice announced today that the Orange County Sheriff’s Department (OCSD) and the Orange County District Attorney’s Office (OCDA) in California routinely violated civil rights and tainted numerous criminal cases by operating a jailhouse informant program that flouted multiple amendments to the U.S. Constitution.

In a 63-page report, the DOJ says OCSD and the DA’s office used confidential informants to illegally conduct criminal investigations inside the Orange County Jail without defendants’ lawyers present, provided informants with benefits for cooperating with law-enforcement, hid records of their informant use, and failed to disclose their use of informants in court or to defendants’ lawyers.

“We have determined that there is reasonable cause to believe that the Orange County District Attorney’s Office and the Orange County Sheriff’s Department engaged in a pattern or practice of conduct—the operation of a custodial informant program—that systematically violated criminal defendants’ right to counsel under the Sixth Amendment and right to due process of law under the Fourteenth Amendment,” the DOJ’s report states.

The agency said the department routinely violated the 1963 landmark U.S. Supreme Court case Massiah v. United States, which held that it is illegal to use a jailhouse informant to elicit incriminating information from someone without their attorney present once the defendant has been charged with a crime.

During the six-year investigation, the Justice Department found that sheriff’s deputies rewarded informants with “benefits that made their jail time easier” and “reduced charges or sentencing requests.” But this information, which prosecutors had a constitutional duty to disclose to the defense, was not shared with defendants and their attorneys.

“In a number of cases, prosecutors themselves were unaware of evidence that had to be disclosed,” the DOJ said, despite the fact that the 14th Amendment requires that prosecutors seek out such evidence and provide it to the accused.

In some cases, the same informant testified in several different cases about a person who had confessed to them, according to the DOJ’s investigation. While this should have raised concerns about the informant’s credibility, prosecutors “did not question” their reliability, the alleged confession’s legality, or if the person was promised incentives for testifying, the report says.

Those close to the criminal legal system in Orange County have been waiting for the results of the DOJ’s case for more than half a decade. The investigation’s seeds began roughly eight years ago, after extensive police and prosecutorial misconduct was revealed during the trial of Scott Dekraai, who pleaded guilty to killing eight people in a 2011 mass shooting. According to a 2016 story by The Intercept, Dekraai’s attorney, public defender Scott Sanders, requested information about a jailhouse informant that Dekraai had allegedly confessed to while locked up. The records revealed that the informant had been part of a massive, undisclosed network of informants organized by OCSD and the DA’s office.

“Since 2014 we have been in a battle to expose the civil rights violations in our county,” Sanders said in a statement to The Appeal. “Today the DOJ came down forcefully in recognizing what occurred. This report presents important findings that these two agencies deprived many defendants of their constitutional rights, and are still doing enough to protect the rights of the accused.”

The DOJ’s Civil Rights Division says it opened its investigation in 2016 in response to the Dekraai case “amid serious concerns that the custodial informant program operated by OCDA and OCSD had undermined confidence in the criminal legal system in Orange County.” The DOJ says it pored over thousands of documents dated from 2007 to 2016 and conducted dozens of interviews, including with 17 OCDA prosecutors.

Out of the known wrongful convictions since 1989, jailhouse informants were used in 133 cases across the country, according to the National Registry of Exonerations. Prosecutors withheld exculpatory evidence—evidence that can undermine the state’s case—in the overwhelming majority of known wrongful convictions since 1989.

This is also not the only recent scandal involving the Orange County Jail. In 2018, local defense attorney Joel Garson uncovered that law-enforcement had been illegally listening to and recording confidential phone calls with a client. Garson told The Appeal in 2019 that he “found out there were thousands of phone calls to attorneys that were also recorded,” despite the fact that it is a felony in California to covertly record conversations between attorneys and their clients. In 2019, Orange County released a grand jury report  that admitted the DA’s office had accessed the illegal recordings but exonerated all of the parties involved.

Current Orange County District Attorney Todd Spitzer worked in the OCDA’s office for multiple stints in his career, including between 2008 and 2010. In a statement today, Spitzer—a Republican who has criticized George Floyd protesters and railed against Los Angeles District Attorney George Gascón’s decarceral policies—said he was grateful for the DOJ’s investigation, cooperated fully, and blamed the informant program on his predecessor, longtime DA Tony Rackauckas. Rackauckas, who was once Spitzer’s close ally, fired Spitzer in 2010 after alleging that Spitzer had bullied other employees and committed other acts of workplace misconduct.

“I have made it unequivocally clear that I refuse to accept the ‘win-at-all costs’ mentality of the prior OCDA administration,” Spitzer said. “The violation of a single defendant’s constitutional rights calls into question the fairness of the entire criminal justice system—and I have terminated cheaters who violated defendants’ rights and I will continue to do so.”

The DOJ, however, says Spitzer and Orange County Sheriff Don Barnes have a lot more work to do. The report states that the prosecutor’s and sheriff’s offices should implement reforms to identify and address impacted cases and to prevent these violations from occurring again.

“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,” reads the report.

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