The U.S. Justice Department and the Orange County Sheriff’s Department (OCSD) have approved a settlement to resolve a long-running controversy over the use of informants in county jails in ways that allegedly violated defendants’ constitutional rights.
This month’s agreement aims to put in place reforms to end the Sheriff’s Department’s previous practice of deploying custodial informants against criminal defendants who were represented by counsel. The informants program was criticized for its secretive nature and its failure to disclose evidence to defense counsel that allegedly could have exonerated suspects.
“DOJ determined that it had reasonable cause to believe that OCSD and OCDA (the Orange County District Attorney’s Office) had used custodial informants between 2007 and 2016 to elicit incriminating statements from people who had been arrested, after those individuals had been charged with a crime in violation of the Sixth Amendment,” the settlement states.
In addition, federal officials determined during a civil investigation that OCDA prosecutors did not provide information about the informants to the defendants and their attorneys, in violation of the 14th Amendment, according to the settlement.
The Sheriff’s Department has agreed to put in place reforms governing custodial informants that avoid future violations.
“Under the agreement, the sheriff agrees to maintain changes to policies, training, document and information systems and audits in a manner that permits effective oversight of the custodial informant practices at the Orange County jails,” the agreement says. It goes on to say that federal officials will have access to information to verify the reforms are working.
But Orange County Assistant Public Defender Scott Sanders told the Southern California Record in an email that while the reforms may ensure better practices moving forward, they don’t end what he called “the nation’s largest jailhouse informant scandal.”
“There have been 58 cases impacted, but there are so many more cases to re-examine,” Sanders said. “We desperately need stakeholders in our criminal justice system to find a way to fund conviction integrity work in this county. It should be disturbing that has not happened, considering what we have uncovered and what the DOJ agreed was systematic violations of constitutional rights over years.”
Sanders served as counsel to a criminal defendant, Scott Dekraai, in one of the county’s worst mass shootings, the 2011 Seal Beach slayings of Dekraai’s former wife and seven others. It was during the prosecution of Dekraai that the informant program came to light. The lengthy hearings into the nature of the program led to a court order recusing OCDA from the case and ending attempts to subject Dekraai to capital punishment.
“The clock is ticking on the lives of many who are incarcerated – people who still have no idea how a win-at-all costs approach to investigation and prosecution may have infected their cases,” Sanders said.
The Justice Department’s civil investigation found that Orange County agencies provided custodial informants with benefits including reduced charges and privileges.
“The evidence uncovered by the department revealed that custodial informants in the Orange County Jail system acted as agents of law enforcement to elicit incriminating statements from defendants represented by counsel, and that for years Orange County sheriff deputies maintained and concealed systems to track, manage and reward those custodial informants,” the Justice Department said in a news release.
A former assistant attorney general in the DOJ’s Civil Rights Division, Kristen Clarke, said the out-of-court agreement would strengthen the public’s trust in the county’s justice system.