SANTA ANA, Calif. (CN) — The Department of Justice said Thursday it is investigating a festering scandal over Orange County prosecutors’ and sheriff’s officers’ alleged unconstitutional use of secret jailhouse informants.
The Civil Rights Division and the local U.S. Attorney’s Office are investigating allegations that the Orange County District Attorney’s Office and Sheriff’s Department have a “pattern or practice” of deploying select jail inmates to “elicit incriminating statements” from suspects who have attorneys, in violation of the Sixth Amendment, the Justice Department said in a statement.
The investigation, at the request of District Attorney Tony Rackauckas, also will examine allegations that prosecutors systematically withheld evidence about informants from the suspects’ attorneys — including favorable treatment informants received in exchange for testimony.
The scandal has convulsed the county’s criminal justice system since it came to light three years ago. Revelations about misuse of secret informants led one judge to kick the entire district attorney’s office off the worst mass murder case in county history.
The allegation also have forced reduced sentences, new plea bargains or other changes in 15 serious criminal cases, including gang-related murders, according to Orange County Assistant Public Defender Scott Sanders.
“A systematic failure to protect the right to counsel and to a fair trial makes criminal proceedings fundamentally unfair and diminishes the public’s faith in the integrity of the justice system,” Principal Deputy Assistant Attorney General Vanita Gupta, head of the Civil Rights Division, said in a statement.
“Our investigation will examine the facts and evidence to determine whether the district attorney’s office and sheriff’s department engaged in a pattern or practice of violating these rights,” she said.
Gupta and Los Angeles-area U.S. Attorney Eileen Decker praised Rackauckas for seeking the investigation and for promising “unfettered access” to his records and personnel.
Orange County Sheriff Sandra Hutchins vowed to cooperate with the federal review.
“We are confident that this investigation, and the cooperation being offered by the Orange County District Attorney's Office, will help restore public confidence in the integrity of the Orange County criminal justice system,” Decker said.
But some observers have doubts.
Chapman University Fowler School of Law Professor Lawrence Rosenthal said he is worried that the Trump administration may weaken or shut down the federal probe. He noted that President-elect Trump promised during the campaign to be tough on crime and to support law enforcement.
“I am extremely skeptical [the investigation] going to survive the change of presidential administrations,” said Rosenthal, a former assistant U.S. attorney who once prosecuted Chicago-area judges.
He said he wished U.S. Attorney General Loretta Lynch had moved more quickly when Rackauckas and others called for the investigation.
Coming now, “it’s much more about image and at least getting a foot on the ground for the next administration” to have to deal with, he said.
Rackauckas sent a letter to Lynch in January, the month after receiving a scathing report from a special commission he had set up on the issue. The panel called his office “a ship without a rudder” and said some prosecutors had a “win-at-all-costs mentality.”
In November 2015, UC Irvine School of Law Dean Erwin Chemerinsky, former California Attorney General John Van de Kamp and more than 30 legal heavyweights wrote to the Department of Justice, demanding an investigation.
Chemerinsky said Thursday that the federal investigation “is a terrific development.” Up to this point, he said, “We never learned … how many people may have been unconstitutionally convicted.”
He said the federal review could lead to strict limits on informant use or imposition of an outside monitor over the district attorney or sheriff.
But Loyola Law School’s Laurie Levenson questioned Rosenthal’s and Chemerinsky’s concerns. She predicted the Trump administration will not pay any attention to a controversy out in Orange County.
“This will probably just be a review by the career prosecutors,” said Levenson, herself a former assistant U.S. attorney.
A federal investigation “is the right thing to happen,” she said. But “I’m not sure how much new we’ll learn.”
The Justice Department’s probe will be the fourth investigation of the issue. In addition to the one by Rackauckas’s special commission, the California attorney general’s office has been investigating the scandal for at least 18 months, and the Orange County grand jury recently hired outside counsel to lead its own inquiry.
The issue came to light early in 2014 after Assistant Public Defender Sanders spotted the same jail inmate listed as a potential witness against two accused murderers he was defending in unrelated, high-profile cases.
Digging into records in those and many other cases, Sanders noticed the same few informants appearing over and over. He brought his findings to Superior Court Judge Thomas Goethals in a 505-page motion accusing the DA’s office of prosecutorial misconduct.
After six months of evidentiary hearings, and several more fat motions from Sanders, Goethals recused the office from further prosecuting Scott DeKraai for the 2011 murders of eight people at a Seal Beach beauty parlor.
Goethals said the district attorney’s office had a continuing conflict of interest between its duty as a prosecutor and its loyalty to the sheriff’s department, which oversees the jails.
DeKraai had pleaded guilty to the murders in 2014, so Goethals turned the case over to the state attorney general’s office for the trial on whether to impose the death penalty.
A state Court of Appeal upheld Goethals’ unusual order in November. “The magnitude of the systemic problems cannot be overlooked,” the court said about the constitutional violations.
In a statement Thursday, Sanders quoted the appellate court and said he “hoped that the Justice Department’s probe will help reform the system so that all Orange County residents will receive the constitutional protections to which they are entitled.”
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