O.C. officials repeatedly violated the Constitution in jail informant scandal, federal report finds

For years, some of Orange County’s most powerful figures sought to downplay accusations that prosecutors and sheriff’s deputies were using jailhouse informants in a way that ran afoul of the U.S. Constitution.

Then-Dist. Atty. Tony Rackauckas decried the situation as a “media witch hunt” in 2017, even after the so-called snitch scandal sparked a retrial in a murder case and wrecked proceedings against the defendant in the worst mass shooting in county history. A civil grand jury investigation somehow arrived at the conclusion that the entire situation was a “myth.”

Even a years-long investigation by the California attorney general’s office ended with a whimper: No public accounting of the scandal was given, and no criminal charges were filed against sheriff’s deputies who, a judge ruled, “lied or willfully withheld material evidence” about the informant scandal in court.

But on Thursday, the U.S. Department of Justice’s civil rights division confirmed what attorneys, activists and crime victims have long been shouting: that the Orange County Sheriff’s Department and district attorney’s office systematically violated the constitutional rights of defendants for the better part of a decade.

In a scathing 63-page report, federal investigators said the two agencies repeatedly violated defendants’ due process rights from 2007 to 2016, when the Sheriff’s Department housed jailhouse informants near high-profile inmates to elicit confessions.

In many cases, the inmates had already been charged with the crimes they were being prodded to discuss, making the tactic a clear violation of their 6th Amendment right to have an attorney present.

“This report’s findings represent a critically important development for the county’s justice system. We have been alleging since 2014 the same civil rights violations analyzed by the Department of Justice, and now we finally have a governmental agency that describes why we were right and lays out just how bad the conduct has been by both agencies,” said Orange County Assistant Public Defender Scott Sanders, who first uncovered the scandal.

While it isn’t uncommon for jailed informants to offer information to prosecutors or investigators, deputies with the Sheriff’s Department’s Special Handling Unit built a stable of snitches to launch at defendants charged with serious crimes.

The Justice Department’s findings come eight years after evidence of the scandal was uncovered during the trial of Scott Dekraai, who slaughtered his ex-wife and seven others during a mass shooting inside a Seal Beach salon in 2011. While Dekraai admitted to carrying out the massacre, investigators feared he would seek an insanity defense to avoid the death penalty. So they placed an informant, Fernando Perez, in an adjoining cell.

Sanders, Dekraai’s attorney, filed a motion seeking to learn more about Perez’s history of working with law enforcement, setting off a chain of events that would force the Sheriff’s Department to disclose evidence about its tactic of placing informants near high-profile defendants. In total, 21 defendants accused of murder or other serious crimes of violence have had their convictions vacated, new trials ordered or sentences reduced as a result of the scandal, according to Sanders.

Rackauckas, the district attorney during the period when the misconduct occurred, did not respond to requests for comment.

Sandra Hutchens, the sheriff at the time, died in 2021.

Orange County Sheriff Don Barnes, who was an undersheriff during much of that time, said the agency has already heavily reformed the way it uses informants.

“I look forward to the DOJ reviewing our current policies, processes and procedures regarding custodial informants,” he said in a statement. “I am confident they will find our current practices have addressed many of their recommendations, and anticipate a prompt and complete resolution to this matter.”

The Department of Justice report determined that Orange County officials repeatedly violated the 6th Amendment, which grants defendants the right to have an attorney present when questioned by law enforcement, and the 14th Amendment, which requires prosecutors to disclose evidence favorable to a defendant.

At least five prosecutors were aware that one informant, Oscar Moriel, was cooperating with the Sheriff’s Department. But when the informant program was exposed during the Dekraai case, prosecutors admitted they “had failed to properly disclose evidence about Moriel in all of the cases in which he participated.”

The report also confirmed that the Sheriff’s Department created a so-called snitch tank: a unit at the county’s main jail where law enforcement knew informants were likely to be housed. Deputies also sometimes used “disciplinary isolation” to put informants and targets together, according to the report, punishing minor violations with solitary confinement to allow informants more time to win over particular defendants.

The snitch scandal has underpinned county politics for years. Hutchens declined to run for reelection in the fallout from the controversy. In his successful 2018 campaign, Dist. Atty. Todd Spitzer frequently attacked Rackauckas for the fiasco on his way to ousting his longtime rival.

Spitzer said Thursday that the report detailed “the very issues that I ran on” and validated his push to “clean up the public corruption that existed under the prior administration.” He also referenced a report he published after ordering an internal investigation of the scandal in 2020.

But the federal report dismissed Spitzer’s probe as a shallow review of five cases affected by the misuse of informants.

Spitzer’s investigation concluded that it was unclear whether prosecutors had done anything wrong, according to the federal report.

But the Department of Justice said two of the cases resulted in retrials due to the misuse of informants, and there was “reasonable cause” to think prosecutors had erred in the other three.

The federal report also found that the Sheriff’s Department hid records for tracking and managing informants in the jail. During trials, prosecutors concealed the true origin of the information they presented, the report said.

The fallout from the scandal led then-Orange County Superior Court Judge Thomas Goethals to remove the district attorney’s office from the Dekraai trial. Ultimately, Goethals chose to spare Dekraai from a death sentence because he did not believe the defendant could receive a fair trial due to the Sheriff’s Department’s rampant misconduct.

The federal report acknowledged that both agencies have made some reforms in the wake of the scandal. Spitzer and Barnes have implemented policies governing the use of informants that were largely nonexistent before 2014. Deputies must now gain the permission of the district attorney’s office before using a jailhouse informant.

Spitzer also fired a senior assistant district attorney for failing to properly disclose information about the use of informants to defense attorneys in a homicide case. Two other veteran homicide prosecutors resigned or retired while they were under investigation for their role in the scandal. Three deputies who were under investigation by the state attorney general’s office also resigned in the scandal’s fallout.

Still, the report criticized both agencies for failing to adequately reform their practices and issued recommendations for further reform. The report presented 23 sweeping recommendations for both agencies, including formal training for employees.

The report also urged the county to create an independent body to further review past prosecutions and investigations that were possibly tainted by the scandal.

“There are some good recommendations,” Sanders said, “but they will not materialize without incredibly careful oversight, so that is my hope.”

Others feared the report didn’t go far enough. Paul Wilson, whose wife, Christy, was among Dekraai’s victims, said the Department of Justice should have named specific prosecutors and deputies who failed to meet their duties.

“That’s the only thing that is going to make change, is to name names and hold people accountable,” Wilson said. “I know Spitzer is sitting in that big chair … and I know Barnes is too, and they’re just laughing this thing off.”