How Orange County Prosecutors Covered Up Rampant Misuse of Jailhouse Informants
From: The Intercept
By: Jordan Smith
Prosecutorial misconduct and the misuse of jailhouse informants are persistent problems in the criminal justice system. According to the National Registry of Exonerations, since 1989 there have been 923 exonerations tied to official misconduct by prosecutors, police, or other government officials, 89 of them in cases involving the use of jailhouse snitches. Over the last two years, a scandal involving both has engulfed Orange County, California, exposing systemic violation of defendants’ constitutional rights and calling into question the legality of the prosecution of a number of violent felony cases.
What makes the Orange County situation particularly troubling is its eerie similarity to another such scandal that unfolded just miles to the north, in Los Angeles County, starting in the late 1970s, and culminated in an exhaustive grand jury report that detailed widespread misuse and abuse of criminal informants and revealed questionable prosecutorial tactics, potentially in more than 200 cases.
Alexandra Natapoff, a law professor at Loyola Law School in Los Angeles and the nation’s leading expert on the use of snitches, said the fact that Orange County officials engaged in unconstitutional behavior similar to what made headlines years earlier in Los Angeles County reveals the “entrenched” nature of the practice of using snitches in questionable ways. “We see it from the outside as a scandal that should not be repeated. But apparently Orange County officials didn’t see it that way,” she said. “They saw it as business as usual.”
The case of Luis Francisco Vega illustrates just how routine the corruption became in Orange County — and how devastating its consequences can be.
On a February evening in 2009, three teenage friends were hanging out next to a parked car on a residential street in Santa Ana, California, when an SUV pulled up next to them. A group of Latino men sat inside the SUV. One of them, sitting just behind the driver, got out of the vehicle and approached the three friends.
“Where are you from?” he asked, a coded inquiry into their gang affiliation. “Nowhere,” one of the teenagers replied, according to an account he later gave police. The man then raised his right arm, pointed a gun at the teenagers, and fired. At least five shots rang out. One of the friends bolted and was hit in the forearm; a second, sitting inside the parked car, was hit multiple times, including in the torso and thigh; a third escaped injury. All three survived. As the SUV pulled away with the shooter inside, the teens said they heard a passenger yell a single word: “Delhi” — the name of a Santa Ana street gang.
Speaking to police afterward, none of the teenagers could identify the gunman — they did not recognize him, nor could they provide a physical description. Yet in an interview with Santa Ana Police Detective Andy Alvarez of the department’s gang homicide unit, two of the shooting victims said they could identify one of the passengers in the SUV. He was a 14-year-old kid named Luis Francisco Vega — a former fellow student at nearby Saddleback High School. According to the teens, Vega had “jumped” one of them and beat him up a couple of months prior to the shooting. Notably, Alvarez was told, during that attack Vega had shouted the word “Delhi.”
There were plenty of reasons for police to be skeptical. For starters, the victims had a hostile relationship with Vega, giving them a motive to implicate him. Plus the notion that both teens could have recognized a person seated on the far side of the car — in a matter of seconds, while being shot at — seemed farfetched. Neither could describe their attacker, who stood just feet away, nor could they agree on the kind of gun he used, or even the make or color of the SUV. Indeed, while each said Vega was seated on the right side of the car, one witness put him in the front passenger seat while the other said he was in the rear of the vehicle.
Then there was the fact that the Santa Ana Police Department, which took pains to document the actions and affiliations of local gang members, possessed no records linking Vega to any gang — let alone Delhi. Alvarez couldn’t prove that Vega was even in Santa Ana at the time of the shooting. Vega’s lawyer argued that he was more than 120 miles from the scene, in Riverside County, where he had been living with an aunt since mid-January.
Still, that “Delhi” was allegedly yelled in the earlier incident was apparently too coincidental for Alvarez. The detective went out to Riverside County to question Vega in early March 2009. In the course of a 40-minute interview, the 14-year-old insisted he was not a gang member and had nothing to do with the shooting. But it didn’t matter; even if Vega was not the shooter, he was still good for an attempted murder charge, which could send him to prison for life. Vega was arrested, brought back to Orange County, and locked up on a $1 million bond.
In the meantime, the cops kept looking for the shooter. Two weeks after Vega’s interview, while the teenager sat in jail, Alvarez’s supervisor, Cpl. David Rondou, sat down with an older youth, 17-year-old Alvaro Sanchez. Sanchez said he’d been “kicking it” with members of the Delhi gang for a couple of months — and admitted that he’d been present on the night of the shooting. That night, he said, he was sitting in the back of the SUV, a stolen Jeep Liberty, when the crew came upon the three teens. Sanchez said he got out of the car because he thought the crews were going to fight. But he claimed he wasn’t the shooter — and refused to provide the names of his companions that night. Sanchez was also charged with attempted murder.
Despite the relatively weak evidence against Vega, following a preliminary hearing in October 2009, an Orange County judge gave the state the go-ahead to try him for attempted murder.
Less than two weeks later, a jailhouse informant named Juan Calderon came forward with important information. Sanchez had admitted to him that he was guilty of the shooting, Calderon told Santa Ana police and a prosecutor with the Orange County District Attorney’s Office, and Vega had nothing to do with the crime.
Calderon’s claims, if confirmed, would exonerate Vega and thus were required by law to be turned over to his defense attorney. But the prosecutor assigned to Vega’s case, Deputy District Attorney Steven Schriver, declined to do so. Calderon was an informant in a separate case the district attorney’s office was handling; the prosecutor on that case did not want to tip his hand as to Calderon’s activities because to do so might put the inmate at risk for retaliation. Schriver said he didn’t want to release the information unless Calderon was placed in protective custody, but admitted he failed to take any steps to make sure that occurred.
It wasn’t until December 2010, nearly two years after Luis Vega was arrested, that Schriver finally dismissed the charges against him. Orange County prosecutors never took Alvaro Sanchez to trial, instead pleading him out for 16 years on the attempted murder charge. Nor was it acknowledged that the state had held on to the information provided by Calderon for months, knowingly keeping an innocent kid locked up and separated from his school, family, and friends.
Vega’s case might be just another example of the dysfunction that plagues the nation’s prisons and jails. But there is growing evidence to show that he was one of many criminal defendants affected by prosecutors’ malfeasance — part of a much bigger, unfolding scandal pointing to systemic misconduct inside Orange Country, involving not just the DA’s office, but also the Orange County Sheriff’s Department and various local police departments. To date, more than a dozen felony cases involving murder or violent attack have unraveled as a result of the scandal, with charges dismissed or reduced or new trials granted.
Prosecutors routinely failed to disclose evidence favorable to defendants — so-called Brady material, named for the landmark U.S. Supreme Court case Brady v. Maryland — including thousands of pages of notes related to various jailhouse informants. There is also evidence that the OCSD, which runs the county’s jails, employed jailhouse snitches in illegal schemes to compel other detainees to confess their crimes.
In Vega’s case, for example, not only did the government delay disclosing the information from Calderon, but it also was holding information from a different jailhouse snitch, Oscar Moriel, which it never disclosed to Vega’s attorney. Specifically, Moriel had documented a detailed conversation with Alvaro Sanchez wherein the Delhi gang member explained how the Santa Ana shooting went down and confessed that he was one of two shooters. Sanchez expressed bewilderment that Vega had been charged in connection with the crime, according to notes taken by Moriel, saying, “It’s kind of fucked up because this guy [Luis Vega] get’s popped for this case while the three other people who were actually there … were still out there.”
If this fact didn’t seem to trouble the DA’s office, it was devastating for Vega and his family. Vega’s mother, Maria Ruiz, said that what happened to her son has been emotionally shattering and “broke” their family. “This has been really hard on him. I am still at this point trying to get him to speak about it,” she wrote in an email to The Intercept last fall. “It was really hard on our family.”
“I never knew how corrupted Orange County was [until] now,” she added. “Orange County law enforcement ruined my child’s life.”
The details of Vega’s case would never have come to light if it weren’t for a public defender named Scott Sanders. At the end of 2011, Sanders was at work on two high-profile death penalty cases. One was against Daniel Wozniak, accused of killing two people (and dismembering one of them). The second was against Scott Dekraai, responsible for Orange County’s worst-ever mass shooting.
As Sanders prepared for Dekraai’s trial, he sought access to files held by prosecutors, including records on a jailhouse informant named Fernando Perez, to whom Dekraai had apparently confessed details about his crime. As it turned out, Perez had also collected a confession from Sanders’s other client, Wozniak. It was an interesting coincidence, Sanders thought, that both of his clients had divulged incriminating information to the same man.
Prosecutors fought Sanders’s request for the Perez records, but eventually Judge Thomas Goethals ordered the state to produce them. Upon receiving the file, Sanders and his team were stunned to receive a trove of information — approximately 5,000 pages of discovery materials connected to nine cases in which Perez worked as a snitch for the government.
As Sanders pored over the documents, he discovered that Perez had been used as an informant in a number of prominent gang-related cases. The same was true of another inmate whose name appeared in the records — the prolific Oscar Moriel. Both men were also members of the Mexican Mafia gang. Most damning were notes from Moriel to his government handlers that suggested Orange County sheriff’s deputies had worked with the jail to orchestrate contact between Moriel and other detainees for the purpose of producing inculpating statements.
The arrangement, if true, would run afoul of a decadesold Supreme Court ruling, Massiah v. The United States, which prohibits government agents, including informants, from questioning or coercing statements from defendants who have already been charged and are represented by counsel. As Sanders looked more closely at the records, he began to wonder: Had law enforcement agents used the same tactics to get Dekraai or Wozniak talking?
Sanders also noticed that the amount of material prosecutors disclosed to defense attorneys varied wildly from case to case. In one case involving Perez, just four pages of records related to the snitch had been turned over; in another, some 200 pages had been released. The same was true for cases involving Moriel. “That was a stunner for me,” Sanders told The Intercept.
The situation strongly suggested that some Orange County prosecutors had deliberately withheld critical information from defense attorneys that could have potentially helped their clients — either by calling into question the tactics that led to confessions or by suggesting that the two informants, each facing serious charges of his own, were working as snitches for personal benefit. That in turn would undermine their credibility, along with the information they claimed to have obtained. Or, as in the case of Luis Vega, the withheld information could demonstrate that a defendant was innocent.
No one argued that Sanders’s client Dekraai was innocent, however. In October 2011, in the midst of a custody battle with his ex-wife, Dekraai walked into the salon where she worked in Seal Beach, California, and opened fire, hitting eight people, seven of whom died. Dekraai then killed an eighth person sitting in a parked car outside the salon. He was quickly captured and arrested. Two days later, Tony Rackauckas, the elected Orange County district attorney, announced that his office would seek the death penalty.
Exactly what Dekraai said to Perez has not been made public. But, according to court testimony, in more than 100 hours of recordings that prosecutors and sheriff’s deputies made of the two men talking between their cells, Perez probed for details of Dekraai’s crime. He questioned Dekraai’s state of mind and even asked about what he’d told his lawyers about his case. Dekraai had actually confessed his crime to police just hours after his arrest — though he initially pleaded not guilty in court.
Why local officials, including prosecutors, would feel the need to employ a snitch in what would almost certainly be a slam-dunk death case in conservative, law-and-order Orange County is particularly confounding. To Sanders, it points directly to a “win-at-all-costs mentality” that has pervaded the Orange County District Attorney’s Office.
In January 2014, after nearly a year spent scrutinizing records and transcripts related to a number of Orange County prosecutions — Sanders filed a whopping 505-page motion arguing that the death penalty should be taken off the table in Dekraai’s case. In separate motions, he went further, arguing that his client’s statements were obtained in violation of law and should be suppressed, and that the government’s conduct was so corrupt that the OCDA should be recused from prosecuting the case. (In 2015, Sanders filed a similar 754-page motion in the Wozniak case.)
“The right to a fair trial is only meaningful when those who prosecute and investigate crimes are committed to both honoring defendants’ constitutional rights and disclosing evidence that is favorable and material, as mandated by state and federal law,” Sanders wrote in the Dekraai motion. “The Court-ordered discovery reveals investigative and discovery practices by the Dekraai prosecution team that are rooted in deception and concealment; an unchecked and lawless … informant program overseen by the OCDA; and a string of prosecutions which confirm a culture that confuses winning with justice — prosecutions marked by repeated and stunning Brady violations, suborned perjury, and a myriad of other misconduct.”
Over the objections of prosecutors, Judge Goethals ordered a hearing. He was “anxious” to hear the evidence and determine “where the truth lies,” he said.
To say that the OCDA’s office was displeased would be an understatement. Veteran reporter R. Scott Moxley, who has covered criminal justice for the OC Weekly for two decades, has doggedly pursued the unfolding snitch scandal. He described standing next to a prosecutor when the “bombshell” Dekraai motion arrived in the DA’s office. “He was livid,” Moxley recalled. “The prosecutors, if I summarized it, you know, their position was up front: ‘This is all bullshit.’”
The unprecedented hearing, which explored allegations of prosecutorial misconduct to a degree rarely seen, began in March 2014 and stretched into the summer. “As we proceeded, two things were happening in a general view,” Moxley said. “One was that [Sanders] was scoring points in court.” The testimony and evidence were consistently backing up his accusations and the attitude among the prosecutors started to shift. “At first they were really angry,” Moxley said. “And then they were like, ‘Well, OK, some of [the allegations are] right — but our intentions!’” he continued, with mock indignation. “He’s impugning our intentions — and our intentions are noble. It’s all accidental errors.”
Over the course of the hearing, Sanders called to testify some 28 prosecutors and law enforcement officers, along with snitches like Perez and Moriel. Much of the testimony was simply incredible.
Prosecutors called to the stand consistently shifted their stories and minimized their infractions. Sure, there may have been instances of failure to turn over evidence to the defense, they argued, but that’s because they were carrying a heavy caseload. Or because they didn’t fully understand the requirements of the laws they’re bound to uphold — namely Brady and Massiah, among the most basic laws governing due process for criminal defendants. At least one prosecutor repeatedly insisted he simply couldn’t recall why he’d failed to turn over Brady materials.
In another turn, prosecutors and at least one sheriff’s deputy attempted to shift blame to the feds — in particular, a former assistant U.S. attorney (and current Orange County judge) who they claimed had forced them to withhold Brady evidence related to informants who were also being used in federal cases. But when the former federal attorney, Terri Flynn-Peister, took the stand that summer, she roundly refuted the accusation. Erik Petersen, a veteran gang prosecutor, also testified that in one case he’d actually been given “an order” not to turn over discovery. When asked who gave the order, Petersen responded, “I don’t know.”
At times, prosecutors’ own files belied their insistence that they did not independently withhold important evidence. One memo extracted by Sanders showed an OCDA investigator telling Petersen that information provided by Fernando Perez would “likely greatly enhance” the prosecution of Dekraai; the investigator requested that Petersen not reveal Perez’s name, noting that nothing about the snitch or his work had been revealed to Sanders.
With such shifty behavior exposed in court, the prosecutors’ testimony came across as hardly more believable than that of the informants Perez and Moriel. Although the two men both faced charges that could send them to prison for life, the pair professed to be working as informants not for any personal benefit — like a potential sentence reduction — but simply because it was the right thing to do.
On the stand, Perez recalled sitting in a jail cell and thinking about his life. “I … just felt that I was done, done with the [gang] life,” he recalled. So he reached out to deputies with the OCSD’s Special Handling Unit, in charge of the county’s jailhouse informants. Since that day in 2010, Perez said, he’s only told the truth about everything he’s done and heard as an informant. “You know, I’m a changed man,” he explained. “I changed my life around and I did the right thing.”
But under intense questioning over three days, Perez’s story unraveled. Although he portrayed himself on the stand as having begun his work with the government in 2010, he ultimately conceded that, yes, he’d acted as an informant prior to his supposed epiphany, and he’d also previously floated the story about being a changed man. Dekraai’s attorneys noted a previous sentence reduction Perez had received as a result of his informant work, a detail Perez claimed not to remember. Still, notes he wrote to his law enforcement handlers after starting his latest stint as an informant were titled “Operation Daylight” — apparently a reference to his hope that his snitch work would result in his freedom.
Other elements of Perez’s “work” proved even more troubling. Although he testified that he never cozied up to inmates or tried to get them to open up about their cases (conduct Massiah forbids), a recorded interview revealed Perez specifically telling prosecutors about asking Dekraai questions in an attempt to get him talking. In correspondence with Orange County law enforcement, Perez mentioned working on his “assignment” and expressed how much he loved “this little job I got.” Another note opened with the line “My mission is complete.”
Perez also wrote to deputies suggesting they move an inmate closer to his cell — apparently to gain a better opportunity to speak with him. Moriel, too, engaged in such strategizing; in at least one note to deputies, he invoked a plan to transfer a specific inmate close to him. The plan, which Moriel referred to as the “dis-iso” scam, was simple: Provide a snitch a particular housing classification — in this instance, a disciplinary-isolation placement — to bolster his credibility with other inmates. Because inmates assume snitches would not be placed in disciplinary housing, the move would help to mask his identity as an informant. Then, house the targeted inmate in the same block — within chatting distance of the snitch.
Proof of such maneuvers lent credence to allegations Sanders made about his clients’ cases. That Perez had extracted confessions from both Wozniak and Dekraai indicated that he had been housed near them deliberately, he said. The state denied this charge.
Taken together, the months of testimony painted a shocking picture of collusion between Orange County law enforcement officers and the informants they employed to violate the constitutional rights of jail inmates awaiting trial — in particular, the right to have an attorney present for questioning by the government or its agents.
In August 2014, Judge Goethals made his ruling. He found that while there had clearly been some inexcusable discovery problems and questionable witness testimony, there was not enough evidence to suggest that the Dekraai case had been tainted by systemic corruption. As a sanction for the violations he did find, Goethals banned Orange County prosecutors from using any of Dekraai’s incriminating snitch-collected statements at trial.
Sanders was “tremendously appreciative” that Goethals spent so much time on the hearing, he told The Intercept, but disappointed that the ruling was limited to suppressing the statements. “Judge Goethals had his reasons — and how could we not be respectful of his reasons?”
Nevertheless, Sanders kept probing for additional discovery. That September, he uncovered evidence that the Orange County Sheriff’s Department — going back more than 20 years — had been documenting and concealing its justification for moving jail inmates. In Dekraai’s case, the documents — known as TRED records — suggested that Perez’s placement next to Dekraai was intentional.
The existence of the records also revealed that at least two witnesses lied at the 2014 hearing: sheriff’s deputies Seth Tunstall and Ben Garcia, both with the Special Handling Unit. On the stand, Tunstall claimed it was not his responsibility to cultivate or manage informants. Both deputies professed to know hardly anything about inmates being moved to facilitate conversations, aside from a few isolated cases, and both denied the existence of records that might confirm Sanders’s allegations.
The TRED records revelation persuaded Goethals to reopen the hearing. This time, Tunstall and Garcia had little choice but to change their tune. Tunstall tried claiming he’d simply forgotten about the TRED records during his previous testimony — despite estimating that he’d penned tens of thousands of them over his time with the department. Later, he testified that TRED records are considered confidential, but that he would have answered had he been asked specifically about them.
For his part, Garcia testified that he had reviewed TRED records prior to taking the stand in 2014 — they helped determine “who moved who and why” — but, echoing Tunstall, said he failed to mention the records because “that’s the way we were trained.”
At the close of the hearing, Goethals was so disturbed by the new evidence that he concluded the entire OCDA should be recused from prosecuting Dekraai’s pending death penalty case. On March 12, 2015, he amended his previous ruling — this time agreeing that there were “serious, ongoing discovery violations” in the case. The judge called out Tunstall and Garcia by name for having “either intentionally lied or willfully withheld information,” as well as Petersen, the veteran gang prosecutor, whom he “did not believe.” He also faulted District Attorney Tony Rackauckas for failing to ensure that defendants’ constitutional rights were upheld not only by prosecutors but also by the law enforcement personnel with whom they work in tandem. “Certain aspects of the district attorney’s performance in this case might be described as a comedy of errors but for the fact that it has been so sadly deficient,” Goethals wrote. “There is nothing funny about that.”
With the OCDA off the Dekraai trial, Goethals sent the case to the office of California Attorney General Kamala Harris for prosecution. Harris quickly appealed, arguing that the OCDA was unaware the TRED system existed and couldn’t be blamed for problems inside the sheriff’s office. Harris’s office maintained there was no reason to believe the OCDA couldn’t competently handle the case. This claim was particularly notable considering that Theodore Cropley, the deputy attorney general who wrote the appeal, was present in Goethals’s courtroom throughout almost all of the monthslong Dekraai hearing, sitting behind OCDA prosecutors, and was certainly aware of the troubling evidence of misconduct in that office. Yet, none of that information was included in the appeal.
Since the Goethal’s ruling, Rackauckas and his prosecutors have remained defiant. Instead of expressing dismay that ethical or legal lapses may have violated the due process rights of countless defendants, those who have spoken publicly have mainly attacked Sanders, both personally and professionally. One prosecutor called him an “imbecile”; another said his legal thinking was daft. A third, Mark Geller, told the Orange County Register that “Sanders shouldn’t even be a lawyer based on the tactics he’s engaged.”
Prosecutors have also sought to undermine Goethals, who was once a prosecutor in the OCDA as well as a defense attorney. As the Los Angeles Times reported, since the start of the Dekraai hearings in early 2014, Orange County prosecutors have repeatedly sought to remove their cases from Goethals’s court. Between February 2014 and March 2015, they sought to disqualify Goethals 57 times based on alleged prejudice — a marked contrast to previous years. Prosecutors sought disqualification only twice in 2013, and not at all in 2012.
In March, the scandal even took a violent turn when a local defense attorney, who recently succeeded in overturning a client’s conviction based on misconduct, was beaten up in the courthouse by an OCDA investigator. The two had exchanged a short but heated set of accusations about who was more “sleazy,” defense lawyers who exposed law enforcement cheating or the county officials responsible for it.
Amid the petty sniping (and blows to the defense attorney’s face), fallout from the hearing continues. Even as officials insist that all is right in the house of Rackauckas, at least 15 serious felony cases have so far been directly affected, according to Sanders. Part of the problem is that the cops have gone quiet. In one case, Tunstall and Garcia, the deputies called out for lying in the Dekraai case, refused to testify, invoking their Fifth Amendment rights and thus avoiding cross-examination by defense attorneys.
And yet, more than a year after the deceptive testimony was exposed, neither the attorney general nor the OCDA has filed criminal charges against either deputy — or anyone else connected to the snitch scandal. To date, only Petersen, the prosecutor Goethals singled out for lacking integrity, has resigned his position.
The refusal to hold anyone accountable for the corruption is not just a matter of DA Rackauckas’s nonchalance. Other officials implicated in the scandal have displayed a similar attitude. Sheriff Sandra Hutchens publicly shrugged off the allegations in an extensive interview with a local TV news anchor posted to YouTube in October 2015. Regarding the TRED system, she said the DA’s office had known about those records for years, and the system wasn’t meant to be secret. The deputies who said that were just mistaken — or “unclear” about what they could reveal. She added that judges have said the TRED record itself should be private, but not necessarily the information it contains. In other words, it’s all just a big misunderstanding. “You know, there’s this whole talk of a conspiracy that this is secret information. It’s totally false,” she said.
While denying every allegation leveled at her department, Hutchens also admitted that she hasn’t conducted any actual investigation into the matter or addressed the potential perjury by Tunstall and Garcia. She has portrayed herself as being hamstrung while awaiting any comprehensive outside inquiry that might occur. “I can’t do an administrative investigation until that is done. I can’t even get a statement from my deputies,” she lamented. “If they did something wrong, I’ll deal with that. But we don’t know that, to this day.”
At the Dekraai hearing, Dan Wagner, who oversees the OCDA’s homicide division, said that he and other attorneys looked into the allegations made against the office (an inquiry that was not officially documented) and found nothing amiss — aside from honest Brady mistakes. Rackauckas, for his part, initially said those errors were the result of an overworked staff, and then four months after the ruling, announced that he would seat a hand-picked panel of lawyers — dubbed the Informant Policies & Practices Evaluation Committee — to review the situation.
In an email to The Intercept, a California AG spokesperson said the office was conducting an “independent investigation,” but only “specifically regarding” the Dekraai case. An OCSD spokesperson said the department’s internal inquiry would proceed once the state investigation was completed.
In November 2015, almost two years after Sanders first stumbled upon the evidence that exposed the informant scandal, more than 30 individuals and interested groups joined Erwin Chemerinksy, dean of the law school at the University of California, Irvine, and former California attorney general John Van de Kamp in signing a letter requesting a Department of Justice investigation. “The unwillingness of the OCSD and OCDA to acknowledge the due process implications of the alleged misconduct has become only more entrenched as attention to the situation has grown,” they wrote. “It is our firm belief that the Department of Justice is the only entity equipped to conduct this investigation and restore public confidence in the criminal justice system in Orange County.”
The DOJ has not revealed whether it will undertake any investigation. (The department did not respond to The Intercept’s requests for comment.) But in familiar fashion, rather than consider Chemerinsky’s concerns, Rackauckas’s office lashed out at the respected legal scholar. In a press release, the OCDA parsed portions of a law review article Chemerinsky co-authored in 1996 — in the wake of the O.J. Simpson trial — on the subject of legal commentators’ ethical responsibilities. The OCDA essentially took the position that, since he hadn’t been present during the entirety of the Dekraai hearing and hadn’t ordered a full set of transcripts, Chemerinsky should not be speaking out. The DA said the concerns expressed in the letter were based on “factually incorrect media accounts of the circumstances of the case.”
Chemerinsky, who spoke to The Intercept last year about the implications of the snitch scandal, recently declined further comment, noting that he is now representing Orange County’s superior court system, which is fighting the OCDA over its retaliatory actions against Goethals. In a court filing, the county’s supervising felony judge wrote that the DA’s conduct toward Goethels has jeopardized “all felony cases” in Orange County by bottlenecking the system.
If Rackauckas hoped his informant committee would clear the DA’s office, its investigation did no such thing. The committee completed its report in December, noting that where the use of informants is concerned, confidence in the criminal justice system in Orange County “has eroded.” The report criticized the “win-at-all-costs mentality” among some prosecutors, describing the office as a “ship without a rudder.” Among the recommendations: The OCDA should revise its policies for using informants and ensure better supervision of related cases; provide more robust training for prosecutors; and establish a conviction integrity unit to review post-conviction innocence claims.
But the committee also emphasized that its review was incomplete. Lacking subpoena power, it had access only to whatever materials officials voluntarily turned over, and it could not force anyone to talk. The review should be considered an “evaluation,” not an “investigation,” the committee wrote, and concluded that an outside “entity with document subpoena power and the ability to compel witnesses to be questioned under oath” should conduct a full inquiry. In short, the committee had come to nearly the same conclusion as Chemerinsky, whose opinion the DA had flatly dismissed.
In the wake of the report, Rackauckas finally submitted his own investigation request to the DOJ, although his appearance at a press conference around the same time suggested that he remains unconvinced it is actually needed. “We know there is no evidence whatsoever of any of this sensational wrongdoing that’s been alleged,” Rackauckas said bluntly. “There’s been some mistakes made,” particularly with meeting evidence discovery obligations, but there were “no innocent people” convicted as a result and “no injustice,” he added. “We know that doesn’t exist.”
How exactly Rackauckas can be so sure is a mystery. With a scandal of such proportions, it’s impossible to draw conclusions about possible miscarriage of justice absent a concerted effort to identify and review every case that may have been tainted by violations of due process. Orange County is littered with victims of the scandal — from the grieving families of Dekraai’s victims, who have yet to see justice of any kind, to Luis Vega, now 22, who was locked up at 14 for a crime he almost certainly did not commit.
It might be one thing if the law enforcement officials involved had never navigated a scandal of such scope. But Rackauckas and Sheriff Hutchens should be more familiar with the process than most. Both were working in the criminal justice system in Southern California when the last big snitch controversy, in Los Angeles County, erupted in the state. Rackauckas had joined the OCDA and Hutchens was working in the L.A. County jail system — ground zero for the scandal. According to a sheriff’s department spokesperson, Hutchens was a junior jailer at the time and didn’t work at the men’s jail where the scandal unfolded. The OCDA declined to comment.
The corruption in L.A. County was uncovered after a career criminal named Leslie White explained to the press and local sheriff’s department how he cooked up detailed false confessions that he then peddled to jailers as having come from fellow inmates. The ensuing grand jury investigation involved testimony from more than 100 witnesses and thousands of documents. In its report, the 1989-1990 grand jury concluded, in part, that a number of informants had committed perjury, the DA’s office had deliberately failed to curtail misuse of informants, and the sheriff’s office had violated defendants’ rights. The report estimated that over a 10-year period, as many as 250 cases involving informants were affected.
The grand jury report noted that convicted defendants could raise wrongful conviction claims based on the county’s use of jailhouse informants — but it isn’t clear how many claims were ever raised on those grounds. Today, the number of cases that may have been tainted by Orange County’s scandal is similarly unclear. Whether such a figure will ever be known — or whether affected defendants will have a meaningful chance to challenge their convictions — will depend on a thorough and independent investigation.
Responding to questions about the scandal, an OCDA spokesperson declined to provide any answers, stating that The Intercept was requesting an “exorbitant amount of information” that would “require a lot of time and resources” to address. “Your questions show a slanted bias and our participation appears to solely serve as a filler. We don’t believe you’re interested in being fair,” the response reads. “We respectfully decline to participate in your article.” Indeed, the OCDA has consistently argued that the media have overblown resolvable discovery problems and that any systemic issues resided in the sheriff’s department.
Still, it doesn’t appear the scandal will recede into the background any time soon. In a court hearing last week related to Sanders’s other capital client, Daniel Wozniak, sheriff’s department officials testified that they’d found yet another trove of documents — computer notes related to jailhouse informants that were taken by Ben Garcia and other deputies — that has never been turned over to the defense, or, apparently, to prosecutors. According to the Orange County Register, officials testified that the OCSD administration had no idea deputies were keeping the notes, which span at least a five-year period beginning in 2008. The OCDA quickly issued a press release condemning the sheriff’s department.
“Our criminal justice system is much better at looking forward than backward,” Laura Fernandez, a lawyer and fellow at Yale researching prosecutorial misconduct, wrote to The Intercept. Fernandez, who signed Chemerinsky’s letter to the DOJ, said that outside of death penalty cases (which have built-in layers of post-conviction review), legislation and the expansion of certain legal doctrines have made “reviewing cases progressively more difficult.” Yet the kind of misconduct that’s surfaced in Orange County shows precisely why identifying and reviewing all potentially impacted cases is so crucial. “Where there is substantial evidence of concealment, distortion, and even outright deception on the part of the state, as there is here, reevaluating tainted cases is not only possible, but critically important.”
What is abundantly clear about the situation in Orange County is that if it weren’t for a handful of people — chiefly, public defender Sanders, Judge Goethals, and reporter Moxley — the snitch scandal probably would not have made news outside the courthouse in Santa Ana.
Indeed, as the scandal began to unfold, Moxley recalls being pulled aside in the courthouse by a veteran Orange County prosecutor, who suggested that he back off the story. “He goes, ‘You know, if you turn away from this, this goes away,’” Moxley said. “And he wasn’t saying that as a compliment. He was saying, ‘You’re inflating this. If you leave it, then it’s just Sanders barking in a courtroom.’ And it stunned me, because it was early on, and I thought, wow, this is how they’re viewing it.”
For Maria Ruiz, the mother of Luis Vega, who at 14 was jailed for nearly two years for a crime that county law enforcement knew he did not commit, that sort of flippancy isn’t new. Indeed, it wasn’t until last year that Ruiz learned police and prosecutors had evidence in hand that her son was actually innocent months before the attempted murder charge against him was finally dropped. “I was so emotional” after finding out, she said. “I was crying for the whole month.” She always knew her son was innocent — and early on, she told the prosecutor just that. “I told the DA, ‘Look, you have the wrong person.’ And he just shook his head at me.”