Experts: No Hope For Justice In Orange County Prosecutor Scandal With Current Investigations

"There must be an investigation and it cannot be from the AG's office or the DA’s office," one expert said.
<p>Orange County District Attorney Tony Rackauckas is seen during a news conference on Sept. 21, 2011, in Santa Ana, California.</p>

Orange County District Attorney Tony Rackauckas is seen during a news conference on Sept. 21, 2011, in Santa Ana, California.

Credit: Kevork Djansezian/Getty Images

LOS ANGELES -- California's Orange County has an astoundingly large and complex problem with its prosecutors and police linked to a tainted jailhouse informant program. And the only way to resolve it is with a sweeping external investigation, one that may need to include federal authorities, multiple legal experts told The Huffington Post.

The criticism comes after the Orange County District Attorney's Office announced it would be assembling its own commission to investigate claims of prosecutor misconduct. It also comes in the wake of a brief filed this week by California Attorney General Kamala Harris outlining why her office is seeking a reversal of a decision by county Superior Court Judge Thomas Goethals, who ejected the entire county DA's office -- all 250 prosecutors -- from a high-profile mass murder case earlier this year after allegations of widespread misconduct surfaced. Goethals said that the government had made "significant" violations of due process and called certain aspects of the DA office's behavior a "comedy of errors."

Harris's appeal of the decision is not new -- she announced it in March, along with an investigation into the matter -- but this week's brief offers the first glimpse into the state's reasoning for why it thinks Goethals made the wrong call. In it, the AG office largely passes the blame for any alleged DA misconduct onto the Orange County Sheriff's Department, which handles the inmates who have been linked to the informant scandal.

Even the OCSD was surprised by the picture presented in the brief.

"The Sheriff has some concerns about some of the assumptions made by the attorney general about some of the OCSD's employees in the brief, despite their investigation not being concluded," Lt. Jeff Hallock, spokesman for the sheriff's department, told HuffPost.

Legal experts who spoke to HuffPost shared similar sentiments.

The brief "essentially denies that the OCDA’s office did anything wrong and says that [Goethals] abused his discretion," wrote Erwin Chemerinsky, dean of law at the University of California, Irvine, in an email to HuffPost.

Tucker Carrington, assistant professor of law at the University of Mississippi, offered a scathing critique of the brief to HuffPost, saying that the AG office is taking a position that is "contrary to established factual findings" and is also completely contradictory to the "purported objectivity" of its investigation.

"As I recall, the court found that a OCDA prosecutor had lied to the court," wrote Carrington in an email. "That fact is left out of the brief, as far as I can see."

Indeed, Goethals did say that he found the testimonies of both a sheriff's deputy and a prosecutor to be unreliable in a March ruling, and noted that it was an ongoing problem -- an issue not mentioned in the brief filed this week.

"To perhaps clarify the record, this is not the first time during this protracted hearing that deputy Tunstall's testimony lacked credibility," Goethals wrote in March. "This court did not believe the earlier testimony of either Tunstall or deputy district attorney Eric Peterson when they unsuccessfully tried to shift responsibility for a serious discovery breach in another case to the shoulders of a former federal prosecutor."

Many legal experts also said they thought it unusual that the unreliable testimony from a prosecutor at the OCDA office didn't appear in the AG's brief, since the author of that brief -- supervising Deputy Attorney General Theodore Cropley, a member of the state AG's office -- sat in on the hearings in question and would have been aware of such allegations.

However, the AG office argues in its brief -- using Goethals' own findings in his March ruling -- that there is "no direct evidence" the DA actively participated in concealing information from the court.

In March, OCDA prosecutors were removed from further proceedings in the mass murder trial of Scott Dekraai, who last year pleaded guilty to shooting and killing his ex-wife and seven other people in a hair salon in 2011, in what remains the largest mass murder in county history.

Dekraai's attorney, Deputy Public Defender Scott Sanders, had unearthed violations within the county's secret jailhouse informant program, as well as internal records from the program that may have been improperly concealed for over 30 years.

It's common for law enforcement authorities to enlist informants to help bolster a case -- the tactic is perfectly legal, even when the informant receives something in exchange. But Sanders alleges that in some Orange County cases, the sheriff’s jailhouse informants held recorded and unrecorded conversations with inmates who were already represented by lawyers -- which is a violation of an inmate’s right to counsel. Prosecutors allegedly took damning evidence gathered by the informants and presented it in court, while withholding evidence that could have been beneficial to the defense -- a violation of a defendant's right to due process.

The revelations about Orange County's jailhouse informants have unraveled multiple murder cases. Some accused murderers have even walked free.

The Orange County Sheriff’s Department has acknowledged "deficiencies" in the policies and protocols involving jailhouse informants. Hallock told HuffPost that the department has already taken steps to create more robust ways of documenting inmate handling.

What's additionally troubling, many legal experts argued, is that it appears the AG's pending investigation into the allegations of misconduct at the DA's office would find little to no issues, based on the arguments presented in the AG's brief.

"It seems to me that the AG has already concluded that the OCDA's office did not commit any wrongdoing -- or not any of the kind that would rise to the level of systemic constitutional violations," Carrington said. "So much for its investigation."

Chemerinsky said that the arguments laid out in the brief further reinforce what he has been saying for some time: "There must be an investigation and it cannot be from the AG's office or the DA’s office."

Earlier this month, the OCDA's office announced the formation of what it has described as an "independent" commission to investigate the claims of misconduct. The commission was the object of considerable skepticism from local media, and some legal experts have wondered whether the group is truly independent.

Chemerinksy said that he "very much" respects individual members of the commission -- but, he argued, an internal investigation is not a "solution" to this crisis, and the AG's office is clearly "too closely linked to the DA's office" to do it either.

The "internal panel that the OCDA has put together is terrible public policy," Carrington said, adding that the constituencies the OCDA needs to satisfy most will "never be convinced" that the findings of the commission are unbiased, if for no other reason than that the panel was assembled from within.

"Additionally, from what news accounts demonstrate, the alleged wrongdoing is not the work of a few bad apples but is, instead, an institutional problem that has been ongoing for years," said Carrington. "What's the likelihood that an internal investigation is going to acknowledge that? Little, I'd say."

OCDA spokeswoman Susan Kang Schroeder scoffed at the criticism of the commission.

The members of the commission "are people with incredible reputations," Schroeder said, adding that the DA's office has already made reforms on its own and wants to make sure those reforms are sufficient. She said this panel can determine that.

"I honestly believe that by the time we're all said and done with this process, we'll be the leading example for the rest of the state's DA offices," Schroeder said.

District Attorney Tony Rackauckas has maintained that no one in his office intentionally behaved inappropriately.

So how can justice be revived in Orange County? Legal experts agreed that the only legitimate path would involve an expansive external investigation that would not include local members of the legal or law enforcement communities. Different experts had different views on how that might be achieved.

Chemerinksy recommended that an independent investigation be done by a "truly blue ribbon commission with full investigative power."

In May, Chemerinsky told Al Jezeera that an investigation by the U.S. Department of Justice would also be "appropriate."

Daniel Medwed, a law professor at Northeastern University, also said a federal investigation could be the answer.

"The feds do this frequently with police departments," Medwed said.

Sidney Powell, a former assistant U.S. Attorney who worked at various positions within the Department of Justice for a decade, recommended that a special prosecutor lead the investigation. "The current DOJ wouldn't know prosecutorial misconduct if it bit them," she said.

Carringon said an inspector general could do the job -- "someone in private practice, for example, whose reputation is beyond reproach."

Laura Fernandez, the Senior Liman Fellow in Residence at Yale Law School, told HuffPost that an external investigation into the DA's office is long overdue and that Harris hasn't done enough to curb the misconduct herself.

“Does Kamala Harris need to come down harder on cheating prosecutors?” Fernandez said. “I think the real question is: Has she come down on cheating prosecutors at all? If so, what exactly has she done? Here we have a situation where it appears that prosecutors haven’t just suborned perjury, but that they themselves have lied -- officers of the court perpetrating fraud on the court.”

HuffPost reached out multiple times to the state AG office for comment on various aspects of this story. In each instance, the office declined to speak on the record.

When California’s prosecutors are caught cheating the system, there are usually almost no consequences. According to a 2010 study from criminal justice reform group the Innocence Project, there were more than 700 cases between 1997 and 2009 of prosecutorial misconduct in California courts. In that 12-year period, only six prosecutors were ever disciplined.

“What has taken place in Orange County amounts to a severe stain on the integrity of the justice system,” Fernandez said. “Any meaningful investigation must start by acknowledging the misconduct of the prosecutors there, something it now seems clear the Attorney General is unwilling to do.”

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