Since the 1980s, the Orange County District Attorney’s Office (OCDA) in California and the Orange County Sheriff’s Department (OCSD) apparently have been routinely violating the constitutional rights of incarcerated defendants awaiting trial to remain silent (Fifth Amendment), to counsel (Sixth Amendment) and to due process of law (Fourteenth Amendment) by placing jailhouse informants in adjoining cells with instructions to elicit confessions from them in return for extra privileges, reduced sentences and cash payments. When they testified about the confessions, the jailhouse informants denied requesting or receiving any benefits in exchange for their testimony and the OCDA and OCSD concealed the existence of the agreements. The polite description of this arrangement is subornation of perjury.
Prosecutorial and police misconduct are often dismissed as just a few bad apples doing a few bad apple-ish things. But what happens when it’s entrenched and systemic and goes unchecked for years? That looks to be the case in Orange County, California, where the situation got so completely out of hand this spring that Superior Court Judge Thomas Goethals issued an order disqualifying the entire Orange County District Attorney’s Office (that’s all 250 prosecutors) from continuing to prosecute a major death penalty case.
The death penalty case is People v. Scott Dekraai, who is in custody awaiting a penalty phase hearing after pleading guilty last year to killing his ex-wife and seven others at a beauty parlor in Seal Beach in 2011. Dekraai’s attorney is Santa Ana assistant public defender Scott Sanders, who realized that a jailhouse informant who had produced damning evidence about Dekraai had done the same thing to another client he was representing. Sanders smelled a rat, so he commenced an investigation that resulted in the discovery of “60,000 pages of records indicating that the county sheriff’s office routinely used and coordinated with those informants to get around the constitutional prohibition on eliciting incriminating statements from defendants who had lawyered up and should not have been interrogated.”
Sanders also found out “that the Orange County Sheriff’s Department has maintained a massive, secret, 25-year-old computerized record-keeping system called TRED. These TRED documents were full of potentially exculpatory data, but the agency officials had systematically refused to turn any of them over, or even acknowledge their very existence, to defense counsel.”
Judge Goethals refused to dismiss Sanders’s motion to dismiss the death penalty but he granted the motion to disqualify the OCDA and its 250 prosecutors. Kamala Harris, the Attorney General for the State of California, is appealing his order.
The alleged misconduct, if true, is not only an egregious violation of three constitutional rights, it’s a 25-year practice of concealing what they were doing. The rules are clear. After a suspect/defendant is represented by counsel, the prosecution and the police are prohibited from contacting him without permission from the attorney. They are also prohibited from attempting to get around the rule by using inmates to obtain confessions from defendants represented by counsel. In that situation, the inmate becomes an agent of law enforcement acting under their direction and control. A violation of this rule is a violation of a defendant’s right to remain silent and his right to have counsel present during an interrogation. The remedy for violating this rule is exclusion of the confession.
This rule does not prohibit inmates from acting on their own, which often happens when an inmate seeks to lighten his load by obtaining a confession from the defendant. If successful, he will contact law enforcement or the prosecutor assigned to the case and play, ‘Let’s Make a Deal.’
Unfortunately, if he is unsuccessful, he may invent a confession containing inside information about the offense. There are ways to obtain that information, for example, by contacting a clerk or paralegal in the prosecutor’s office and misrepresenting himself to be a reporter or a lawyer calling about the case. The OCDA and the OCSD apparently decided to make it easy by streamlining the process and lying about it afterward. Rewards, including promises to reward informants in the future are considered exculpatory evidence that must be disclosed to defense counsel. Failure to do so is a violation of the Due Process Clause of the 14th Amendment.
Why did they do that? To get the conviction, of course.
Easy to do when you believe everyone is guilty and constitutional rights are mere impediments to convicting the guilty.
Orange County now has an enormous mess to clean up and God only knows how many innocent people have been wrongfully convicted and sentenced to prison behind this institutional misconduct. Perhaps they will find out an innocent person was executed.
I have said many times that criminal defense attorneys are liberty’s last champions. If they do their job, as Scott Sanders did in this case, they force everyone else to follow the rules. Unfortunately, it took 25 years for that to happen in Orange County.
Last but not least, the District Attorney for Orange County is Tony Rackauckus, the guy who personally prosecuted the cops who beat Kelly Thomas to death. Now, I’m no longer surprised by the verdict.