US: Report faults Orange County DA in jailhouse informant scandal
By Lorelei Laird From ABA Journal
A panel created by the district attorney in Orange County, California, to look into the county’s jailhouse informant scandal has faulted the DA’s office for a “failure of leadership.”
The group, whose members were picked by elected DA Tony Rackauckas, said the office was “rudderless” and had “serious deficiencies” in its supervision and training, leading to a “win-at-all-costs” mentality, according to the Orange County Register. It proposed several major changes, including the elimination of the office’s powerful chief of staff position.
Rackauckas created the panel last July after coming under pressure to investigate the office’s use of jailhouse informants to get convictions in serious or high-profile cases. Legal observers in the county, including University of California at Irvine law school dean Erwin Chemerinsky, had called for an independent investigation, citing concerns that internal investigators and the state of California were too close to the office to be objective.
In response, Rackauckas created this panel, calling it independent—though critics were not sure about that, noting that two panelists were paid, some had ties to Rackauckas and the panel had limited powers.
The panel itself noted its limited powers in the report released Monday, saying: “Without subpoena power, [it] cannot represent that it has ‘investigated’ and uncovered the truth as to what may or may not have occurred in individual cases involving the use of jailhouse informants.”
Nonetheless, the 26-page report concluded that stronger leadership was needed to change the culture of the office and “not [reward] prosecutors with the ‘must win’ mentality with promotions.” It also called for several changes in the office, including:
• Establish a Confidential Informant Review Committee with an outside member.
• Remove “embedded” prosecutors from police gang units, which the panel believes creates undue pressure to bring charges in weak cases.
• Dissolve the office’s chief of staff position out of concerns that the current chief of staff, Susan Kang Schroeder, has worsened the scandal by creating a “toxic and combative relationship between the OCDA’s Office and the press.”
Some of the recommendations are already being implemented, the Register notes, and Rackauckas said others would be, although he declined to dissolve Schroeder’s position or remove embedded gang prosecutors. At a press conference Monday, Rackauckas denied that there had been any wrongdoing but invited the U.S. Justice Department to investigate to put concerns to rest.
The jailhouse informant scandal arose after an Orange County public defender, Scott Sanders, uncovered evidence that informants were being used in violation of defendants’ constitutional rights under U.S. v. Massiah. That case forbids police from using third parties to question suspects without a lawyer present.
Sanders also found evidence that the use of these informants was not being disclosed to defense counsel, which would violate defendants’ rights under Brady v. Maryland. In fact, Sanders alleges that prosecutors and law enforcement have collaborated for decades to hide records of informant activity in a database whose existence they did not disclose, the Register reported in March. The Orange County Sheriff’s Department has denied that the database was ever a secret.
Judge Thomas Goethals, who is handling one of the cases in which Sanders made the allegations, removed the entire Orange County DA’s office from the case as a result. That order is being appealed by the California Attorney General’s office. The other case is currently in trial.
Defense attorney Rudy Loewenstein told the Los Angeles Times that it was surprising to see such strong criticism.
“It’s pretty startling to see that the district attorney’s own hand-picked committee is making such a recommendation and has such sharp criticism,” said Loewenstein, a solo practitioner in Tustin. “It did everything but call for his resignation.”
Rackauckas told the Register he will not resign.
For more on this story go to: http://www.abajournal.com/news/article/report_faults_orange_county_da_in_jailhouse_informant_scandal/
