Last October, I noted some really disturbing revelations coming out of Orange County, Calif., in which prosecutors were allowing accused felons to go free rather than reveal potentially exculpatory information about how they use jailhouse informants. Since then, it’s only gotten more sordid, getting covered in outlets from Slate to National Review to Al-Jazeera America. But it really ought to be on the evening news.
In March, Judge Thomas M. Goethals recused the entire office of District Attorney Tony Rackauckas from a murder case “because of repeated government cheating.” More rot followed, including a gag order (issued by a different judge) preventing defense attorneys from discussing what they were discovering (it was later lifted), and revelations that the police and prosecutors collaborated with the Mexican mafia to target a rogue informant and with MSNBC to violate a suspect’s constitutional rights.
In May, Slate’s Dahlia Lithwick explained the magnitude of the misconduct on display here.
In his March order, Goethals wrote: “It is now apparent that the discovery situation in this case is far worse than the court previously realized. In fact, a wealth of potentially relevant discovery material — an entire computerized data base built and maintained by the Orange County Sheriff over the course of many years which is a repository for information related directly to the very issues that this court was examining as a result of the defendant’s motion — remained secret, despite numerous specific discovery orders issued by this court, until long after the initial evidentiary hearing in this case was concluded and rulings were made.”
Laura Fernandez of Yale Law School, who studies prosecutorial misconduct, says it’s amazing that both the sheriff’s office and the DA’s office worked together to cover up the misconduct: “From my perspective,” she says, “what really sets Orange County apart is the massive cover-up by both law enforcement and prosecutors—a cover-up that appears to have risen to the level of perjury and obstruction of justice. Law enforcement officers and prosecutors in Orange County have gone to such lengths to conceal their wide-ranging misconduct that they have effectively turned the criminal justice system on its head: dismissing charges and reducing sentences in extraordinarily serious cases, utterly failing to investigate unsolved crimes and many murders (by informants — in order to prevent that evidence from ever getting to defense lawyers), while simultaneously pushing forward where it would seem to make no sense (except that it conceals more bad acts by the state), as in the case of an innocent 14-year old boy who was wrongfully detained for two years.”
So far, the scandal has affected at least three dozen cases. (And this only really scratches the surface. Check the scandal archives of the OC Weekly.)
Here’s the latest, again from the OC Weekly:
For a quarter of a century, the Orange County Sheriff’s Department (OCSD) operated one of the nation’s longest frauds on the criminal-justice system through a secret, computerized records system called TRED. In late 2014, Superior Court Judge Thomas M. Goethals forced a monumentally resistant OCSD to admit its existence. Why all the secrecy?
The few TRED records that have been pried free are a treasure trove of exculpatory evidence hidden from trials that resulted in prosecution victories over hoodwinked defendants. The records also clearly reveal that Southern California law-enforcement officials run a jailhouse-informant program that habitually tramples the constitutional rights of pretrial defendants.
With the aid of the county counsel’s office, OCSD officials employed exaggerations, half-truths, circular logic and legally inane gobbledygook to keep judges, juries and defense lawyers clueless about TRED since 1990. They’ve even been willing to tell fibs under oath in a death-penalty case.
Four months ago in People v. Scott Dekraai, Goethals labeled deputies Ben Garcia and Seth Tunstall as perjurers. These badged men repeatedly lied about the existence of the records, then faked amnesia when confronted with proof of their dishonesty. Perhaps anticipated protection emboldened these characters. District Attorney Tony Rackauckas — whose office is both the beneficiary of and willing partner in the Garcia/Tunstall ploys — refuses to prosecute the officers.
A newly unsealed transcript of a March 25, 2005, pretrial hearing in People v. Henry Rodriguez sheds additional light on the TRED deception. To convict Rodriguez, government agents violated legal principles established in Brady (records helpful to a defendant must be surrendered) and Massiah (police can’t use trickery to entice incriminating statements from charged suspects who have a lawyer). . . .
As with all outsiders, James Crawford — Rodriguez’s defense lawyer — didn’t know TRED existed until recent months, in part because deputies generically referred to the system as “classification records.” But Crawford caused the 2005 hearing by filing a subpoena seeking the type of data contained in TRED, including Garrity’s jail movements and snitch-related operations. In open court with Superior Court Judge Frank F. Fasel, deputy County Counsel Laura Knapp objected to surrendering the records, claiming a nonexistent disclosure exemption entitles deputies to private “stream of consciousness” files. Knapp also argued TRED records were simultaneously nonexistent and yet vital for jail security. She told the judge, “It is the sheriff’s contention that these records are highly confidential investigatory files, which are not written or created.”
The judge ordered the files to be turned over, with some redactions. That apparently never happened. Ten years later, despite their predecessors defying a court order, prosecutors are still arguing that any information about TRED is still too sensitive to be released, even though at this point, the local press has already exposed much of this.
No fool, Goethals noted he saw zero legitimate security concerns and asked [Elizabeth] Pejeau [of the Orange County Counsel’s office] to support her contention with facts. Looking exasperated if not angry, she paused and stared at him. “I can’t answer that right now,” she finally said.
The judge has grown weary of malarkey. He announced plans to put government officials on the witness stand to answer his questions about what happened in the Rodriguez case, and he unsealed related TRED records.
“I’m a big believer that these are public courts,” he said. “The public should know what we are doing here. It protects the integrity of the system.”
It’s far too late for that now. This isn’t a case of a few bad actors. This is systematic corruption involving dozens of police officers and prosecutors that went on for well over two decades. At a minimum, there should be mass firings of cops and disbarments of prosecutors, past and present. A system that still retained some integrity would also have the worst offenders in handcuffs.
But don’t believe for a second that this is a uniquely Orange County problem. I pointed out in a post in May a couple stories I’ve personally reported in which prosecutors willingly put on informant testimony that they should have known wasn’t true. The problem is that there’s so little accountability for prosecutors. It’s just far too easy to skirt ethical rules, even to break the law, in procuring damning testimony from an informant. (And let’s be honest here, these are people whom those same prosecutors wouldn’t trust for a moment in just about any other context.) Prosecutors have very little to fear for going too far. Professional sanctions are rare. Save for a very few high-profile cases, criminal charges are unheard of. And they’re shielded from civil liability by absolute immunity.
The scandal in Orange County is only a scandal thanks to the work of a brave public defender named Scott Sanders and some dogged reporting by local journalists. Alexandra Natapoff, a criminologist and author of the book Snitching, captures the real lesson from Orange County in a quote she gave to Lithwick: “What’s newsworthy is not that it’s unique. What’s newsworthy is that we actually found out.”