Orange County DA settles federal investigation into use of jailhouse informants

SANTA ANA, Calif. (CN) — The Orange County District Attorney’s Office agreed to continue implementing reforms to safeguard against the unconstitutional use of jailhouse informants as part of a settlement with the U.S. Justice Department.

The agreement, the Justice Department announced Wednesday, resolves its civil investigation that found in 2022 that the district attorney’s office and the Orange County Sheriff’s Department had violated criminal defendants’ right to counsel under the Sixth Amendment and right to due process of law under the 14th Amendment to the U.S. Constitution from 2007 through 2016.

Under the agreement, the district attorney’s office committed to continue the reforms District Attorney Todd Sptizer has started implementing since he took office, including to disclose to criminal defendants exculpatory evidence about custodial informants, in accordance with constitutional guarantees to a fair trial and right to counsel, the Justice Department said.

“Under the Sixth Amendment, law enforcement cannot use custodial informants as their agents to elicit incriminating statements from defendants represented by counsel,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “We commend the district attorney and his staff for initiating corrective action at OCDA to comply with constitutional requirements."

The out-of-court agreement, the Justice Department said, is the result of extensive cooperation from the district attorney following the release of the department’s October 2022 report that concluded that the systematic use of informants in the Orange County jail system to elicit evidence against inmates awaiting trial violated these inmates’ civil rights.

“I made it unequivocally clear when I ran for Orange County District Attorney in 2019 that I would not tolerate the ‘win at all costs’ mentality of the prior administration,” Spitzer said in a statement. “My prosecutors will not violate the Constitution and the rights of defendants in order to get convictions and the rights of victims as well as defendants will be protected.”

The Justice Department’s investigation, Spitzer said, was ongoing when he was elected and upon taking office in January 2019, he immediately began making reforms. One reform included adopting a new jailhouse informant manual that strictly governs the use of such informants, along with the provision that a jailhouse informant cannot be used without the express consent of the district attorney.

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, in what was called “the worst mass killing in the history of Orange County.” Dekraai had walked into the hair 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 district attorney 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 inmate 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 district attorney’s office from the Dekraai proceedings. The Justice Department began its investigation in 2016, following the revelations in the Dekraai prosecution.

Some informants used threats of violence, including threats of murder, to coerce confessions and other information from people housed in the jail, the American Civil Liberties Union claimed in a 2018 lawsuit against the Orange County District Attorney and Sheriff’s Department.

The scheme has existed at least since the 1980s, according to the ACLU. Some informants purportedly received $1,500 a day to coax confessions out of targeted inmates.

Although the use of jailhouse informants is not itself illegal, it becomes illegal if a defendant is represented by a lawyer. It’s also illegal not to provide a defendant with possibly exculpatory evidence related to the use of an informant.

Since the illegal use of jailhouse informants was first exposed in 2014, as many as 57 criminal cases have unraveled with the defendants’ convictions either getting thrown out or their sentences getting cut, according to a 2023 analysis by a public defender.

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