Assistant Sheriff in Orange County Says the System Failed

SANTA ANA, Calif. (CN) — For years, the sheriff’s department in Orange County, California, had a “failed system” that allowed deputies to use jail informants to violate the constitutional rights of criminal suspects, an assistant sheriff testified Thursday.

“During that period of time, we had a failed system,” Assistant Sheriff Adam Powell told Superior Court Judge Thomas Goethals. “We had no policy and worse protocols.”

Powell’s testimony came in an evidentiary hearing to determine whether convicted mass murderer Scott DeKraai should be spared the death penalty for killing his ex-wife and seven others at a beauty parlor in 2011.

DeKraai’s attorney, Assistant Public Defender Scott Sanders, says the sheriff department’s improper use of informants to obtain incriminating statements justifies the restriction on sentencing.

Sanders’ allegations against the sheriff’s and the Orange County district attorney’s offices — which he first laid out in a 505-page motion in January 2014 — set off a continuing controversy in the county and led Judge Goethals to remove the district attorney as DeKraai’s prosecutor in November last year. The California Attorney General’s Office has taken over the case.

Powell’s testimony in some ways contradicted that of his boss, Sheriff Sandra Hutchens, who testified Wednesday that while “a few” deputies in the jails may have violated the law, the practice was not widespread.

“There is no jailhouse informant program … that is not in accordance with the rules,” Hutchens testified.

But Powell told Goethals that the department’s “whole process [for informants] was failed.”

He said the deputies in the jails’ Special Handling Unit, who cultivated and developed informants, were doing what their supervisors wanted them to do.

“Deputies were working on their assigned duties and doing their job, and, as you very well know, they received accolades,” he told Sanders in court.

Powell has been leading the sheriff’s department response to the informant scandal for more than a year.

He said that when he read Sanders’ initial motion in early 2014, he recognized that while a couple of units in the department had policies on informants, the department as a whole did not.

One result was that the term “informant” was used for witnesses to crimes, victims of crimes, and inmates who volunteered information about weapons or gang activity — as well as for inmates who regularly served as confidential informants by gathering information about targeted suspects in exchange for money or sentencing consideration.

Further, he said, there were no protocols delineating how jail deputies should interact with confidential informants who were working for outside law enforcement agencies, as opposed to those working with sheriff’s investigators.

Sheriff’s department branches even had separate procedures for responding to simple discovery requests, which could not be overseen by headquarters staff.

Since the informant scandal came to light, Powell said, the sheriff’s department has instituted an agency-wide policy on informants, with detailed protocols for different units and different situations, including strict controls on working with outside police agencies who want to use informants.

In the DeKraai and other cases, Sanders has said that sheriffs’ and prosecutors’ use of jailhouse informants to question suspects violated the 1964 U.S. Supreme Court ruling in Massiah v. United States, which prohibits law enforcement from questioning a defendant who has, or is due, an attorney.

He said it also it violated the Supreme Court’s Brady v. Maryland ruling of 1963, which codified defense right to learn about all exculpatory information — such as whether informants were expecting any benefits for helping prosecutors.

Powell said he believes there were many times when informants in the jails were used legally. But in answer to a question from Goethals, the assistant sheriff agreed that jail deputies in the special handling unit would move confidential informants near to suspects in high-profile crimes to try to obtain incriminating statements.

“I think it happened over years, yes,” Powell said.

He said his theory was that the special handling deputies worked with informants as part of some large-scale investigations overseen by joint federal-state task forces, concerning gang activity in the jails. The goal was to develop intelligence, he said, and when the cases were done, the special handling deputies carried over that approach to other crimes.

“You can’t do that,” Powell said. “You can’t utilize informants [that way] without butting up against Massiah.”

Powell was Sanders’ 20th and final witness. The evidentiary hearing, which began May 23, will continue on July 17 with the prosecution’s response.

Goethals said that he probably will schedule closing briefs and arguments for early August and that he will rule soon afterward.

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