Blog comment: this article further reports on an issue that isn't going away. We have already posted many articles on it and will continue to post them. The Orange County 2016-17 Grand Jury has clearly struck a nerve. We can't remember any other grand jury report that has resulted in this amount of media comment.
The celebration might be premature for Orange County District Attorney Tony Rackauckas and Sheriff Sandra Hutchens, who this week praised a report titled “The Myth of the Orange County Jailhouse Informant Program” because it said the county’s top law enforcement agencies didn’t conspire to intentionally misuse jailhouse informants to win convictions.
“They’re not (exonerated),” said Carrie Carmody, the grand jury forewoman.
Instead, Carmondy, local lawyers and legal scholars said Thursday that the 28-page report paints agency leaders as either inept or lax, creating a culture that sometimes resulted in police work and prosecutions that haven’t stood up to legal scrutiny. Specifically, the report noted that informants were misused, and evidence was sometimes withheld, because of a “lack of supervision and laziness in the practice of law.”
Though the report said the two agencies didn’t conspire to produce a formal informant program to grill defendants who already have lawyers – a violation of federal law – Carmody insisted it was not a “white wash.”
“I urge people to please read the (entire) report,” Carmody said. “There were problems because the people in charge of watching … weren’t watching.”
At least one local DA official stood by a different interpretation of the report Thursday, suggesting it erases several years of difficult publicity.
“It’s sad that the media continues to spread false narratives because they can’t stand to admit that they were wrong for five years,” said Susan Kang Schroeder, Rackauckas’ chief of staff.
While some local lawyers and at least one court ruling go farther than the grand jury, saying county prosecutors and deputies specifically pushed to use informants against defendants who already had lawyers, local legal scholars who read the report said Thursday that ineptitude might be as bad as corruption.
“We wind up ignoring the fact that the (district attorney’s office) has this silo system of management which promotes little centers of incompetence … which denies people their right to a fair trial,” said Lawrence Rosenthal, a former federal prosecutor and a law professor at Chapman University.
“The problem is incompetence; not that somebody is going out to break the rules, but they don’t know how to follow the rules. … That’s a bigger deal.”
For years, Rosenthal has likened the DA’s office as having “a pure heart and an empty head.”
The report released this week wasn’t the first time the local grand jury has chided Rackauckas for a lack of supervision. In 2002, a different grand jury called him out for deficient leadership.
The new report conceded that informants have been used against defendants, but said that happened because a handful of rogue deputies working inside Orange County jails became enamored with their roles as crime-fighters. Some sergeants, the report said, were not putting full effort into their jailhouse jobs, biding their time “until they can be reassigned to the field.”
The report said information about the use of snitches was withheld from defense attorneys, but only because that information wasn’t passed from police to prosecutors. One of the police agencies mentioned, the Anaheim Police Department, said Thursday they are investigating whether they did not comply with discovery laws.
But the grand jury report didn’t acknowledge that courts traditionally have ruled that prosecutors are responsible for the information handed between prosecution teams and defense attorneys. The grand jury report also stands in sharp contrast to court rulings by Judge Thomas Goethals and a November 2016 ruling by the Fourth District Court of Appeal, which described local misconduct as “systemic.”
Orange County’s justice system has been wrangling for four years over the informant debate. Because of informant problems, Goethals is considering whether to rule out the death penalty for admitted Seal Beach mass murderer Scott Dekraai, who killed eight people in and near a hair salon in 2011.
Goethals is the same judge who booted the district attorney’s office from the penalty phase in the Dekraai case, saying lack of disclosure about informants led him to believe the department could not insure a fair trail.
A relative of one of Dekraai’s victims said Thursday that his reading of the grand jury report left him frustrated.
“A myth? What a slap in the face to each of these families,” said Paul Wilson, whose wife, Christy, was among Dekraai’s victims, during an evidentiary hearing in the case.
“We have had to suffer through this, and they call it a ‘myth?’”
Legal scholars also said the grand jury seemed to focus on semantics, and on the question of whether an informant network needed to be officially sanctioned to exist.
“It’s almost as if the grand jury chose to pursue the question in a way that could never be answered in the affirmative, by requiring that in order for an informant program to exist, it would be in effect some kind of official or quasi-official agency,” said Laura Fernandez, a senior Liman Fellow at Yale Law School and a specialist on prosecutorial misconduct.
“The truth is that most illegal operations, at least to my knowledge, don’t have strategic plans, dedicated budgets and calendared events. So one isn’t typically exonerated by the absence of same.”
Other experts noted that the grand jury report boasted the panel read 8,000 pages from the district attorney’s office, 3,000 pages from the sheriff’s department, and interviewed dozens of people from the two agencies. The report, however, offered no numbers for people interviewed from the public defender’s office and the defense bar, and Carmody acknowledged the grand jury focused on prosecutors, not defense attorneys.
At least two private defense attorneys who won new trials for their clients, one after local sheriff’s deputies refused to testify on their use of informants, were not contacted by the grand jury.
“I was shocked by (the report’s) apparent lack of insight,” said defense attorney Rudy Loewenstein, who used informant-related questions to win a new murder trial for a man who was later re-convicted. “I just don’t understand what they looked at and who they talked to. It’s flawed work.”
Assistant Public Defender Scott Sanders, who sparked the controversy by his research in the Dekraai case, was interviewed for only four hours, six months after the grand jury started its investigation.
When asked if the panel only got a one-sided version of events, Carmody said grand jurors were fully versed with the cases.
Some critics say the grand jury began its investigation with preconceived notions that the informant scandal was a fraud. Carmody countered that, saying the panel did indeed start its probe with a bias – that they would probably find corruption in the DA’s office and sheriff’s department. Instead, she said they found none.
“The evidence was strong enough to overcome our original bias.”
“We don’t have a dog in this fight,” she added. “We’re not looking to exonerate or hang anybody up. We wanted to uncover the truth.”
June 15, 2017
Orange County Register
By Tony Saavedra
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