Jailhouse Informant Practices Prompt Orange County Probe


By Christopher Zoukis

On Dec. 15, the Department of Justice (DOJ) announced its Office of Civil Rights has launched an investigation of the sheriff's office and the district attorney's office in Orange County, California, over repeated claims law enforcers there have systematically used jailhouse informants in ways that violate defendants' rights.

Authorized by a 1994 crime law, the civil "pattern or practice" probe will look into two claims: first, that the agencies violated inmates' right to counsel under the Sixth Amendment by using informants to get incriminating statements from inmates who have retained legal counsel, contrary to the Supreme Court's ruling in Massiah v. United States, and second, that prosecutors didn't disclose leniency promises made to the jailhouse informants, contrary to their constitutional duty to share with defense counsel any potentially exculpatory information, as spelled out in the Supreme Court's landmark Brady v. Maryland decision.

The probe stems from a long-simmering political and legal controversy around the sheriff's and prosecutor's office practices on use of jailhouse informants, which critics have called unconstitutional or even fraudulent. For three years, an assistant public defender in the county has argued the agencies ran a secret informant system involving perjured testimony by both jailhouse informants and police officers who, he charged, lie "with shocking frequency" in presenting false testimony by informants and covering up their wrongdoing.

One judge, reviewing charges made about official handling of the county's largest multiple murder case in 2014, found "significant" errors in the prosecutor's handling of the case --calling it a "comedy of errors" -- and ordered the entire county district attorney's office removed from the case. The prosecutor's office then responded by challenging the judge's suitability to preside over scores of subsequent murder cases, and a state appeals court later upheld the prosecutor's right under state law to do so.

In at least five cases, possible constitutional rights violations have led to reduced sentences - or in one case release on parole -- for inmates convicted on murder charges. A year ago, numerous civil rights, civil liberties and church groups, backed by prominent law practitioners and academics, had petitioned Attorney General Loretta Lynch for a DOJ probe of the Orange County law enforcement agencies. The county bar association has also strenuously criticized the agencies.

In announcing the DOJ probe, the head of the department's Civil Rights Division observed any systematic failure to safeguard an accused person's right to counsel and a fair trial harms public faith "in the integrity of the justice system." DOJ acknowledged the Orange County district attorney has agreed to cooperate with the investigation and provide full access to office records.

The Orange County situation also gave impetus to a new state law (AB 1909), passed by the legislature and signed into law by Governor Jerry Brown on Sept. 30, making it a felony for a prosecutor in California to knowingly falsify or withhold material evidence. California laws already made that a misdemeanor for the general public, and a felony for state law enforcement officers. Prosecutors can already face judge-imposed sanctions and be reported to the state bar, which can lead to disbarment. The new law, however, is the first in the nation specifically targeting prosecutors, who can now be sentenced to up to three years for the new offense in California.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com