Blog note: this article references a grand jury report.
Nearly five years have passed since a lawyer representing the man who slaughtered eight people inside a Seal Beach salon first raised questions about the way investigators used informants inside Orange County’s jails.
The accusation — that sheriff’s deputies planted a prolific snitch in the cell of confessed killer Scott Dekraai in the hopes of eliciting information without his lawyer present, and then covered up their unconstitutional actions — seemed outlandish at the time. But jailhouse records soon proved otherwise, and the Orange County district attorney’s office and Sheriff’s Department found themselves embroiled in a national scandal.
The state attorney general’s office opened an investigation into both agencies in 2015; the U.S. Department of Justice followed suit the next year. Orange County prosecutors were kicked off Dekraai’s case, and a judge cited the informant scheme in sparing him a place on California’s death row. The American Civil Liberties Union filed a lawsuit accusing authorities of having deployed “professional” informants for decades.
But to date, no one has been disciplined, fired or prosecuted for misconduct. And on Friday, a deputy attorney general said that the state investigation into the case — the only avenue for criminal charges — has been closed.
Meanwhile, some individuals who oversaw the jails or Dekraai’s case at the time of the alleged misconduct have received promotions. In March, two deputies under investigation for their role in the scandal quietly retired.
For those closest to the case, there is a fear that the public will never truly know what went on inside Orange County’s jails.
“These guys inflicted five years of pain on me and my family,” said Paul Wilson, 54, whose wife, Christy Lynn Wilson, was among those gunned down in the 2011 Seal Beach salon massacre. “It’s not politics to me. They need to be held accountable.”
Local watchdogs and civil liberties advocates have long contended there are more cases tainted by informant misuse — affecting more than 140 additional defendants, according to some court filings. Information that spilled out of the Dekraai hearings already has led to retrials in more than a dozen criminal cases, including several murders.
Last fall, Todd Spitzer ousted longtime Dist. Atty. Tony Rackauckas in an election framed largely around the informant scandal — and many hoped that he would sweep into office and impose dramatic reforms. Rackauckas maintained that the issue had been exaggerated and that no one in his office intentionally concealed evidence. A county grand jury report largely backed up his view, finding that only a few “rogue deputies” had done anything wrong.
Spitzer, in a recent interview, said he has no intention of letting the agency’s past failings go unanswered.
Since becoming district attorney, he said, he has turned over thousands of pages of training documents and nearly 100 case files to the U.S. Justice Department. Spitzer would not describe the nature of the cases or say if they involved informant misuse. The oldest was filed in 1998, according to Kimberly Edds, public information officer for the district attorney’s office.
Spitzer also said he has taken steps to curb potential abuses.
The use of jailhouse informants at trial now will require his written approval, and since taking office he has established an ethics officer position and a conviction integrity review unit. Spitzer said he is “champing at the bit” to learn the results of the federal investigation. But he said he also must balance the demands of running the office in the present with trying to reconcile its past.
“I’m trying to get closure. There is no doubt. But the amount of resources and time that this agency is investing in complying is really intense,” he said.
A U.S. Justice Department spokeswoman declined to comment. Spitzer has said he wants to settle the federal investigation and admit to any wrongdoing committed under his predecessor, citing voluminous discovery requests from the federal government. Those comments concern those who hoped a prolonged investigation might uncover additional trials in which prosecutors failed to provide defense attorneys with information about the use of jailhouse informants, or cases in which informants obtained confessions in an unconstitutional manner.
Assistant Public Defender Scott Sanders, who represented Dekraai and exposed the informant scandal, said in recent court filings that Spitzer appears to have backed off the fiery reformer rhetoric of the election cycle and has failed to disclose relevant evidence. Specifically, Sanders criticized Spitzer for calling the federal investigation a “fishing expedition” and said he demonstrated a “vanishing appetite” for working with the Justice Department.
Other attempts to uncover misconduct have stalled, civil liberty advocates say.
ACLU staff attorney Somil Trivedi said the group’s lawsuit, filed last year, would have forced Orange County to make public a trove of information about the informant program, but the case was thrown out by a judge who said the plaintiffs did not have standing to sue. The ACLU — which argued in its suit that it had found court transcripts proving informants were planted next to a murder defendant in a case from 1980 — is appealing the decision.
“We have found cases going back 30 years, and these are all pretty serious cases, and every one of them is at risk for being reopened,” Trivedi said.
Frustrations also have turned toward the state attorney general’s office.
In 2015, then-California Atty. Gen. Kamala Harris launched an investigation into the use of informants. For years, according to Orange County Sheriff Don Barnes, state prosecutors ignored repeated requests for an update on the probe.
News that the state had ended its inquiry with no prosecution came during a hearing Friday, at which Sanders was arguing for the release of records related to a criminal case. Deputy Atty. Gen. Darren Shaffer gave no reason why or when the investigation had shut down. The office of current California Atty. Gen. Xavier Becerra declined to comment. Carrie Braun, a Sheriff’s Department spokeswoman, said her office had not been notified of the results of the attorney general’s investigation.
In a statement Saturday, the ACLU of Southern California said the attorney general’s action sends a “disturbing message that prosecutorial and law enforcement misconduct is acceptable in California.”
Sanders, who described the state review as “a sham from beginning to end,” said a judge will decide whether records related to the probe can be made public May 10.
A spokeswoman for Harris rejected any criticism, saying the former attorney general was instrumental in launching the criminal investigation and pushing for the civil grand jury review. Lily Adams said Harris believes the informant scandal “flowed from a culture that encourages an ends-justify-the-means approach, complemented by a program of plausible deniability.”
The slow pace of the state investigation led Barnes to take an unusual step this year when he restarted an administrative review into potential deputy misconduct before the criminal probe was completed.
“I can’t wait forever on them, and we have to do our job — which is to hold our personnel accountable, if necessary,” he said during a recent interview.
Whether records from that internal investigation would bring the public new information, however, is another question. While the passage of Senate Bill 1421 last year opened up some police disciplinary records, they only become public if an officer or deputy is found to have committed wrongdoing for specific offenses.
Two of the deputies at the center of the investigation — Seth Tunstall and Bill Grover — resigned in March, Braun said. A third deputy, whom she did not identify, remains under internal investigation.
Braun said deputies can decide to retire while under internal review if “no recommendations for action” had been made at the time of their departure.
Sanders has called on authorities to dig deeper to determine how many additional cases might be tainted by the misuse of informants. In court filings last year, he said he had identified 146 cases in which deputies testified without their past connections to the Sheriff’s Department Special Handling Unit being disclosed.
Barnes, a 30-year veteran of the department, said he believes the agency has been forthright in handling the mistakes alleged during the Dekraai trial, while dismissing some criticisms from the ACLU and Sanders as “brazen.”
As undersheriff, Barnes said, he helped modify department policy and training governing the use of informants in the county jails, which now requires his written approval. While not defending the department’s past actions, he said he also believes the agency has been unfairly accused of being resistant to change.
“The unit that existed then, I stopped it,” he said. “We replaced it with highly qualified people that look at information within the jails differently than it was handled before.”
Barnes also defended the promotions of Jon Briggs and William Baker, both of whom had oversight roles in the jails at the time, to the position of assistant sheriff. Briggs had testified during the Dekraai trial that poor supervision contributed to problematic behavior in the jails, though Barnes said that was taken “out of context.” The sheriff described Baker as “part of the solutions team” put in place to fix issues in the jails.
Spitzer said he understands the frustrations felt by those who have spent years waiting for the conclusion of investigations, but added, “I’ve got to let this process play out.”
For Wilson, however, patience has long run out. He doesn’t want to see others endure the same denial of justice he feels he suffered.
“I know how hard it was for myself and my kids and Christy’s family to deal with all of this,” he said, referring to the years after the murder of his wife. “I went through a really rough experience with those other families. I don’t want it to happen to anyone else.”
April 21, 2019
Los Angeles Times
By James Queally
