More than a decade after a jailhouse snitch scandal rocked the Orange County district attorney’s office and nearly upended the prosecution of the deadliest mass shooting in county history, federal officials announced they have ceased overseeing the department‘s informant program, citing recent reforms.
The decision, announced Dec. 23, ends a year-long agreement between the Department of Justice and local prosecutors who were tasked with reforming the way they use informants in criminal cases.
“The Orange County District Attorney’s Office has implemented and sustained extensive reforms that demonstrate an enduring commitment to protecting the Sixth and Fourteenth Amendment rights of those in it’s jurisdiction,” said Assistant Atty. Gen. Harmeet K. Dhillon of the Justice Department’s Civil Rights Division.
According to a 2022 DOJ report, the Orange County District Attorney’s Office and Orange County Sheriff’s Department from at least 2007 to 2016 was systemically using informants as “agents of law enforcement to elicit incriminating statements,” then hid evidence of the practice in dozens of trials, including possibly exculpatory evidence obtained by informants.
The practice came to light during the trial of Scott Dekraii who, in 2011, killed his ex-wife and seven others during a mass shooting in Seal Beach, and sparked questions about how some of the evidence in that trial was obtained.
The subsequent scandal loomed over the final years of Sandra Hutchens time as Orange County sheriff and Tony Rackauckas’ reelection bid as the county’s top prosecutor.
When he was voted into office as district attorney in 2018, Todd Spitzer vowed to reform the practice.
“After nearly a decade of investigation by the Department of Justice, the ‘win at all costs mentality’ chapter of the prior administration can finally be closed once and for all,” Spitzer said in a statement. “The violation of a single defendant’s constitutional rights calls into question the fairness of the entire criminal justice system.”
The use of jailhouse informants is not an uncommon, or illegal, tactic and tool used by law enforcement. But informants can’t be used by law enforcement once a defendant has been charged and represented by an attorney. Investigators and prosecutors are also required to disclose to defense attorneys during trial all of the information obtained through the use of informants.
Scott Sanders, a former longtime Orange County public defender, is credited with uncovering the use of jailhouse informants during the Dekraii case. He has since retired from the public defender’s office, but continues to practice law and represents defendants affected by the snitch scandal.
In a recent murder case, Sanders points out, a judge tossed out the 2009 conviction of Paul Smith and ordered the special circumstances struck because of “reprehensible conduct” by prosecutors at the time. A total of 23 informant-related pieces of evidence were found to be concealed or withheld during the 2009 trial.
The case is set to be retried in February.
Sanders said the Orange County District Attorney’s Office under Spitzer has made noticeable improvements in the use of informants, but he criticized the U.S. Department of Justice’s decision to drop its oversight because the possibility of more cases infected by the scandal might still be uncovered.
So far, 61 cases have been impacted by the questionable use of informants and lack of evidence disclosed during the trials, Sanders said. Many of the cases were homicide trials.
“This is the nation’s largest snitch scandal by far,” Sanders said. “So if the DOJ really wants to stand for justice, it doesn’t flee the scene of the crimes but rather demands that Orange County stakeholders create a meaningful review for the dozens of additional cases likely infected by those who wantonly committed prosecutorial law enforcement misconduct.”
More work needs to be done to not just prevent future cases, Sanders said, but to bring justice to all past defendants whose cases were infected by the unlawful use of informants.
Since the scandal was unearthed, the Orange County District Attorney’s Office has created and required additional training for prosecutors, paralegals and investigators. The office has also improved how informant records are stored and retrieved, enhanced its conviction integrity review process to broaden the scope of cases that could be eligible to be reviewed for claims of innocence, and drafted a new Confidential Sources Policy.
A spokesperson for the department said the office also conducts annual audits with the Orange County Sheriff’s Department for custodial informant files to make sure records on both ends are complying with policy.
