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Feds rip Orange County’s use of jailhouse informants

The use of inmates as government agents to elicit incrimination information from defendants represented by attorneys violated their Sixth Amendment right to counsel, the U.S. said.

LOS ANGELES (CN) — The systematic use of informants in the Orange County, California, jail system to elicit evidence against inmates awaiting trial violated these inmates' civil rights, the U.S. Justice Department found.

The Justice Department said Thursday that an investigation of the use of jailhouse informants from 2007 through 2016 found reasonable cause to believe that Orange County District Attorney’s Office and Sheriff’s Department violated the Sixth Amendment right to counsel and Fourteenth Amendment right to due process of defendants in their jail system.

"While our review focused on custodial informant activity from 2007 through 2016, the informant controversy continues to undermine public confidence in the integrity of the Orange County criminal legal system," according to the report by the Justice Department's civil rights division. "Neither agency has implemented sufficient remedial measures to identify criminal cases impacted by unlawful informant activities or prevent future constitutional violations."

The controversial use of informants in Orange County jails to elicit incriminating evidence from defendants who haven't been convicted yet blew up in 2014 during the prosecution of Scott Dekraai, for what was called “the worst mass killing in the history of Orange County.” Dekraai had walked into the salon where his ex-wife worked and opened fire, killing her and seven others.

Although Dekraai quickly confessed to his crime, the then-Orange County DA wanted to seek the death penalty but was concerned Dekraai might argue that he was not criminally responsible for the murders due to a history of post-traumatic stress disorder. Prosecutors and sheriff's deputies wired Dekraai's cell and put an informant next to him who, as was revealed later in court, had been working as a jailhouse informant within the jail for over a year in exchange for benefits from law enforcement agencies.

The judge in the case, after learning that the use of this jailhouse informant was far from an isolated case, recused the DA's office from the Dekraai's proceedings. The Justice Department began its investigation in 2016, following the revelations in the Dekraai prosecution.

"All persons who are accused of a crime are guaranteed basic constitutional protections that are intended to ensure fairness in criminal proceedings and due process of law,” Assistant Attorney General Kristen Clarke said in a statement. “Prosecutors and law enforcement officers have an obligation to uphold these rights in their fight against crime and in their pursuit of justice, including in the way that they use custodial informants against criminal defendants."

The use of jailhouse informants by law enforcement isn't necessarily prohibited, but there are rules. For one thing, an informant can't actively elicit incriminating statements from a jailed defendant about the crimes with which they are charged and for which they are represented by a lawyer. The informant also can't be a government "agent" who receives or is promised benefits in exchange for collecting information about other inmates.

Moreover, prosecutors need to turn over to defense lawyers any exculpatory information about their witnesses, such as the benefits their informants received for the evidence they provided. This didn't happen in Orange County, according to the Justice Department's report.

Orange County officials cooperated throughout the investigation, the Justice Department said. In addition, the department said, it believes prosecutors and sheriff's deputies stopped using informants as agents of law enforcement to obtain statements from charged defendants in 2016.

Orange County District Attorney Todd Spitzer has touted reforms he’s implemented while in office, including of the jailhouse informant program.

"This report confirms exactly what we already knew — there was a robust jailhouse informant program within the Orange County jail with the intent to elicit incriminating statements from represented defendants in violation of their constitutional rights," Spitzer said in a statement Thursday. "Much of this activity was being hid from prosecutors, preventing the proper disclosure of informant information. This is unacceptable."

The Sheriff's Department said in a separate statement that it takes the matter very seriously and has worked diligently to address the issues.

"For the last six years, the department has worked to identify errors and protect the constitutional rights of all persons housed in the Orange County Jails," the department said. "This includes significant procedural and operational improvements, unprecedented transparency, and multi-layered systems of checks and balances."

In 2018, three Orange County residents and a community group People for the Ethical Operation of Prosecutors and Law Enforcement claimed the agencies’ snitch program eroded their Southern California community’s faith in the criminal legal system’s ability to deliver justice.

For at least 30 years, the agencies have operated a clandestine program in county jails that used confidential informants to coerce confessions and other information from incarcerated people, the lawsuit said, adding that informants were paid or rewarded with sentence reductions. 

The information extracted by informants — who used threats of violence and murder to glean details from targets — was later presented as fact during at least 140 criminal proceedings in Orange County Superior Court, according to the lawsuit.

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