SANTA ANA, Calif. (CN) — The sheriff of Orange County, California, took the stand before a skeptical judge Wednesday to insist that her department has not had a practice of cultivating jailhouse informants to question criminal suspects in custody.
At most,. Sheriff Sandra Hutchens said, there may have been a few deputies in the jails who violated suspects’ constitutional rights, but the practice was not widespread.
“I will not say that there may not have been misconduct by a few,” Hutchens said, but those deputies’ activities are being investigated by her office and by the state attorney general’s office.
Hutchens testified during a multi-week hearing on whether confessed mass murderer Scott DeKraai — who in 2011 killed his ex-wife and seven others at a beauty parlor in Seal Beach — should be spared the death penalty.
DeKraai’s attorney, Assistant Public Defender Scott Sanders, says the sheriff’s department for years has used informants against suspects in high-profile crimes without protecting the suspects’ rights or informing their defense attorneys.
Sanders’ allegations — announced in a 505-page motion he filed in January 2014 — led Orange County Superior Court Judge Thomas Goethals to remove the Orange County District Attorney’s Office from prosecuting the DeKraai case.
In addition, sentences or convictions in at least six other Orange County murder or gang-related crimes have been set aside due to informant issues.
Since then, the Department of Justice and the state attorney general’s office have launched probes of the alleged snitch program. The district attorney’s office and the county grand jury have concluded investigations of their own.
Testifying in a courtroom crowded with attorneys, journalists, families of DeKraai’s victims and even members of the county grand jury, Sanders pushed back for several hours against allegations of a secret, long-running informant program.
“There is no jailhouse informant program, as being charged in the media, that is not in accordance with the rules,” she testified.
The sheriff said that jail deputies do work with criminal investigators from her department or from outside police agencies to see if an informant — often another inmate who is being paid or seeking consideration in sentencing — can acquire useful information.
“Do [the jail deputies] go around developing informants to build a case on their own? No,” Hutchens said.
“There may have been a few deputies who took their duties to a level beyond where they were authorized to go,” she added.
Hutchens, who announced last week that she will not seek re-election next year, said it is part of jail deputies’ job to collect information from inmates, especially about safety and security issues, such as drug or gang activity.
“The question is, are they keeping proper documentation and following all the laws,” she said.
She said her department has tightened its procedures and upgraded its training since the informant scandal arose.
Sanders asked how she could dispute the existence of such a program, given emails, memos and other documents showing that jail supervisors were aware of and praised deputies’ work with informants.
One memo that hung on the wall near the jail “special handling unit,” which oversaw informants, listed developing of informants as one of the duties of the unit’s deputies.
Deputy Attorney General Mark Murphy, whose office is prosecuting the DeKraai case now, did not ask the sheriff any questions.
Judge Goethals, however, hit her with some tough questions. Goethals noted that he issued a discovery order for documents about jailhouse informants in January 2013, yet Hutchens’ office is still uncovering troves of documents.
“I received numerous sworn statements from members of your staff … saying, ‘We’ve looked everywhere and there’s nothing here,’” the judge said. “But time and time again, that turns out not to be true.”
Hutchens replied: “I would have to say that’s what they believed,” and added that maybe “they didn’t look hard enough.”
Goethals was particularly concerned about a 1,100-page log of data from the special handling unit, which came to light in March 2016.
The log was stored in a folder in a shared computer drive open to deputies and supervisors in the unit. Yet it apparently wasn’t found until almost three years after the judge’s discovery order.
“How could [unit supervisors] not know it exists? I’m having a problem with that,” he said.
“They may not have looked,” the sheriff said. Because of computer issues, “It wasn’t easy to retrieve.”
Goethals also expressed astonishment that when this latest hearing began in late May, the sheriff’s lieutenant newly in charge of the reconfigured special handling unit discovered 68 bankers’ boxes of previously undisclosed documents.
Hutchens apologized for that.
“I cannot explain why those boxes were not discovered before,” she said. “I hope the court recognizes that when we find something, we turn it over.”
Goethals noted that Hutchens was the 19th witness to testify in the hearing over the past two months, all of them from her department.
Sanders is expected to call an assistant sheriff who oversees the department’s internal investigation of the informant scandal on Thursday, wrapping up his case.
The hearing is to resume July 17 with rebuttal witnesses called by the attorney general’s office.