A committee of legal experts hand-picked by Orange County District Attorney Tony Rackauckas on Monday issued a report declaring his office a “rudderless” ship and calling for a deeper investigation into the use of jailhouse informants.
The five-member panel called for the Orange County grand jury, the state Attorney General or the U.S. Department of Justice to investigate allegations that prosecutors and police misused a covert network of jailhouse informants and withheld evidence from defense attorneys.
Panel members indicated their six-month review had only scratched the surface because of their limited authority.
“Without subpoena power, the (panel) cannot represent that it has ‘investigated’ and uncovered the truth as to what may or may not have occurred in individual cases involving the use of jailhouse informants,” the 26-page report said.
Rackauckas responded Monday by inviting U.S. Attorney General Loretta E. Lynch to investigate, saying he believes his office will be vindicated of any intentional misconduct.
“We know there is no evidence whatsoever of any of this sensational wrongdoing that’s been alleged,” Rackauckas said at a news conference hours after the report’s release. “If a federal investigation will put this to rest … then let’s get it done.”
The five-member panel includes Jim Smith, a retired Orange County Superior Court judge; Patrick Dixon, a retired Los Angeles County assistant district attorney; Robert Gerard, former Orange County Bar Association president; and Blithe Leece, an attorney who specializes in legal ethics and professional responsibility. Laurie Levenson, a Loyola Law School professor and ethics expert, served as an adviser.
Panel members interviewed 75 prosecutors, judges, defense attorneys and law enforcement officials.
Their report cited “serious deficiencies” in supervision and training in the District Attorney’s Office, leading to a “win-at-all-cost” mentality among some prosecutors.
“This mentality is a problem. Stronger leadership, oversight, supervision, and training can remedy this problem,” the report said. “Key to addressing the problem is changing the culture of the office by not rewarding prosecutors with the ‘must win’ mentality with promotions.”
The report also noted that the District Attorney’s Office, with the high level of trust given to senior members, functions in many ways as a ship without a rudder.
“There does not appear to be any consistent or clear cultural message emanating from the top down to the bottom of the organization. In short, the office suffers from what is best described as a failure of leadership,” the report said.
The committee called for the creation of a new unit that would look at post-conviction claims of innocence.
Such a unit would have responsibility for investigating and evaluating claims of wrongful convictions, including those involving jailhouse informants. Instituting a unit would improve the district attorney’s ability to detect and remedy police and prosecutor mistakes earlier, the panel said.
Rackauckas responded Monday that the office already has an Innocence Project and will adopt the recommendation to formalize it.
The committee recommended specific changes in the office’s operations, most of which Rackauckas already began in recent months. The changes include:
• Revise policies and procedures regarding the use of jailhouse informants. (Rackauckas said he would adopt the recommendation, including using jailhouse informants infrequently. An extensive written request, including an informant’s background, must be submitted to the office. )
• Establish a Confidential Informant Review Committee with defined protocols and include an “outside” or independent member. (The district attorney said his office will launch a search for an outside member.)
• Overhaul the district attorney’s training program, with extensive additional training regarding discovery obligations and the use of jailhouse informants. (This measure is underway.)
• Coordinate with the Orange County Sheriff’s Department and all local law enforcement agencies regarding jailhouse informant protocols and procedures and engage in detailed training on the Orange County Informant Index, written backgrounds on each informant. (This change is in progress.)
• Create a chief ethics officer position, which Rackauckas embraced.
The panel also recommended no longer embedding gang prosecutors with special police units.
“Although having prosecutors embedded with local law enforcement creates obvious efficiency, it also has the potential to create undue, and at times unfair, pressure on the prosecutor to file cases that he or she does not believe should be filed,” the report said. “The (committee) is concerned that having Target Unit prosecutors ‘housed’ with law enforcement risks blurring the lines of the objective professional distance required between prosecutors and law enforcement.”
Rackauckas said his office will continue to embed in police agencies, but will adjust the program.
In addition, the committee wants to dissolve the chief of staff position currently held by prosecutor Susan Kang Schroeder.
“With one exception, every member of the OCDA’s Office who was interviewed expressed what could only be described as an extreme level of concern regarding the toxic and combative relationship between the OCDA’s Office and the press,” the report said.
“While members of the OCDA’s Office were careful not to attack the OCDA Chief of Staff or members of the OCDA Media Relations Unit personally, there is an overwhelming frustration that the OCDA’s Office does not have a more transparent and less hostile relationship with the press. Most members of the OCDA’s Office believe that the jailhouse informant controversy had been greatly overblown because of a lack of transparency.”
Rackauckas strongly disagreed with the suggestion. He said Schroeder’s job includes more than work with the media.
In July, Rackauckas convened the five-member committee to review the District Attorney’s Office’s use of jailhouse informants.
The action came after an exhaustive probe by Assistant Public Defender Scott Sanders, who alleged police and prosecutors routinely used jailhouse informants to coax confessions from inmates awaiting trial and also withheld favorable evidence from defense attorneys.
In March, Superior Court Judge Thomas M. Goethals removed the District Attorney’s Office from the penalty phase trial for confessed mass killer Scott Dekraai after revelations that authorities secretly bugged his jail cell and recorded more than 100 hours with a seasoned jail informant. Dekraai faces a possible death sentence for gunning down his ex-wife and seven others at a Seal Beach salon in October 2011.The judge held extensive hearings and later found the prosecution and sheriff’s deputies violated the defendant’s right to a fair trial.
In recent months, prosecutors have dropped charges or reduced penalties in at least five murder and attempted murder cases in the fallout from the snitch controversy.
Under federal law, prosecutors and police cannot use jailhouse informants to question defendants who have retained lawyers.
The committee’s report found that the District Attorney’s Office and its staff of 250 lawyers had a host of administrative problems. Supervisors were not aware of large caseloads, the use of jailhouse informants, and evidence discovery challenges experienced by prosecutors in the gang and homicide units, the report said.
“The lack of oversight of these serious cases led to repeated legal errors that should have been identified and rectified by management long before the problems reached the current scale,” the report said. “This is an issue that must be acknowledged, shouldered, and remedied by the entire leadership team at the OCDA’s Office. … In fact, the evaluation revealed that the District Attorney himself was unaware of many of the problematic issues that led to the jailhouse informant controversy.”
The panel found that the office’s top management hesitated to bring bad news to Rackauckas. There appeared to be an ambivalence among staffers that nothing would change if they reported problems, the report said.
Rackauckas said he takes responsibility for any mismanagement.
“It happened on my watch. I was unaware of the kind of management we were getting and I should have been aware,” he said.
“Certainly I am responsible,” he said. “But no, I don’t intend to resign.”
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