Prosecutorial misconduct and the misuse of jailhouse informants are persistent problems in the criminal justice system. According to the National Registry of Exonerations, since 1989 there have been 923 exonerations tied to official misconduct by prosecutors, police, or other government officials, 89 of them in cases involving the use of jailhouse snitches. Over the last two years, a scandal involving both has engulfed Orange County, California, exposing systemic violation of defendants’ constitutional rights and calling into question the legality of the prosecution of a number of violent felony cases.
What makes the Orange County situation particularly troubling is its eerie similarity to another such scandal that unfolded just miles to the north, in Los Angeles County, starting in the late 1970s, and culminated in an exhaustive grand jury report that detailed widespread misuse and abuse of criminal informants and revealed questionable prosecutorial tactics, potentially in more than 200 cases.
Alexandra Natapoff, a law professor at Loyola Law School in Los Angeles and the nation’s leading expert on the use of snitches, said the fact that Orange County officials engaged in unconstitutional behavior similar to what made headlines years earlier in Los Angeles County reveals the “entrenched” nature of the practice of using snitches in questionable ways. “We see it from the outside as a scandal that should not be repeated. But apparently Orange County officials didn’t see it that way,” she said. “They saw it as business as usual.”
The case of Luis Francisco Vega illustrates just how routine the corruption became in Orange County — and how devastating its consequences can be.
“Where are you from?” he asked, a coded inquiry into their gang affiliation. “Nowhere,” one of the teenagers replied, according to an account he later gave police. The man then raised his right arm, pointed a gun at the teenagers, and fired. At least five shots rang out. One of the friends bolted and was hit in the forearm; a second, sitting inside the parked car, was hit multiple times, including in the torso and thigh; a third escaped injury. All three survived. As the SUV pulled away with the shooter inside, the teens said they heard a passenger yell a single word: “Delhi” — the name of a Santa Ana street gang.
Speaking to police afterward, none of the teenagers could identify the gunman — they did not recognize him, nor could they provide a physical description. Yet in an interview with Santa Ana Police Detective Andy Alvarez of the department’s gang homicide unit, two of the shooting victims said they could identify one of the passengers in the SUV. He was a 14-year-old kid named Luis Francisco Vega — a former fellow student at nearby Saddleback High School. According to the teens, Vega had “jumped” one of them and beat him up a couple of months prior to the shooting. Notably, Alvarez was told, during that attack Vega had shouted the word “Delhi.”
There were plenty of reasons for police to be skeptical. For starters, the victims had a hostile relationship with Vega, giving them a motive to implicate him. Plus the notion that both teens could have recognized a person seated on the far side of the car — in a matter of seconds, while being shot at — seemed farfetched. Neither could describe their attacker, who stood just feet away, nor could they agree on the kind of gun he used, or even the make or color of the SUV. Indeed, while each said Vega was seated on the right side of the car, one witness put him in the front passenger seat while the other said he was in the rear of the vehicle.
Then there was the fact that the Santa Ana Police Department, which took pains to document the actions and affiliations of local gang members, possessed no records linking Vega to any gang — let alone Delhi. Alvarez couldn’t prove that Vega was even in Santa Ana at the time of the shooting. Vega’s lawyer argued that he was more than 120 miles from the scene, in Riverside County, where he had been living with an aunt since mid-January.
Still, that “Delhi” was allegedly yelled in the earlier incident was apparently too coincidental for Alvarez. The detective went out to Riverside County to question Vega in early March 2009. In the course of a 40-minute interview, the 14-year-old insisted he was not a gang member and had nothing to do with the shooting. But it didn’t matter; even if Vega was not the shooter, he was still good for an attempted murder charge, which could send him to prison for life. Vega was arrested, brought back to Orange County, and locked up on a $1 million bond.
In the meantime, the cops kept looking for the shooter. Two weeks after Vega’s interview, while the teenager sat in jail, Alvarez’s supervisor, Cpl. David Rondou, sat down with an older youth, 17-year-old Alvaro Sanchez. Sanchez said he’d been “kicking it” with members of the Delhi gang for a couple of months — and admitted that he’d been present on the night of the shooting. That night, he said, he was sitting in the back of the SUV, a stolen Jeep Liberty, when the crew came upon the three teens. Sanchez said he got out of the car because he thought the crews were going to fight. But he claimed he wasn’t the shooter — and refused to provide the names of his companions that night. Sanchez was also charged with attempted murder.
Despite the relatively weak evidence against Vega, following a preliminary hearing in October 2009, an Orange County judge gave the state the go-ahead to try him for attempted murder.
“Orange County law enforcement ruined my child’s life.”
Less than two weeks later, a jailhouse informant named Juan Calderon came forward with important information. Sanchez had admitted to him that he was guilty of the shooting, Calderon told Santa Ana police and a prosecutor with the Orange County District Attorney’s Office, and Vega had nothing to do with the crime.
Calderon’s claims, if confirmed, would exonerate Vega and thus were required by law to be turned over to his defense attorney. But the prosecutor assigned to Vega’s case, Deputy District Attorney Steven Schriver, declined to do so. Calderon was an informant in a separate case the district attorney’s office was handling; the prosecutor on that case did not want to tip his hand as to Calderon’s activities because to do so might put the inmate at risk for retaliation. Schriver said he didn’t want to release the information unless Calderon was placed in protective custody, but admitted he failed to take any steps to make sure that occurred.
It wasn’t until December 2010, nearly two years after Luis Vega was arrested, that Schriver finally dismissed the charges against him. Orange County prosecutors never took Alvaro Sanchez to trial, instead pleading him out for 16 years on the attempted murder charge. Nor was it acknowledged that the state had held on to the information provided by Calderon for months, knowingly keeping an innocent kid locked up and separated from his school, family, and friends.
Vega’s case might be just another example of the dysfunction that plagues the nation’s prisons and jails. But there is growing evidence to show that he was one of many criminal defendants affected by prosecutors’ malfeasance — part of a much bigger, unfolding scandal pointing to systemic misconduct inside Orange County, involving not just the DA’s office, but also the Orange County Sheriff’s Department and various local police departments. To date, more than a dozen felony cases involving murder or violent attack have unraveled as a result of the scandal, with charges dismissed or reduced or new trials granted.
Prosecutors routinely failed to disclose evidence favorable to defendants — so-called Brady material, named for the landmark U.S. Supreme Court case Brady v. Maryland — including thousands of pages of notes related to various jailhouse informants. There is also evidence that the OCSD, which runs the county’s jails, employed jailhouse snitches in illegal schemes to compel other detainees to confess their crimes.
In Vega’s case, for example, not only did the government delay disclosing the information from Calderon, but it also was holding information from a different jailhouse snitch, Oscar Moriel, which it never disclosed to Vega’s attorney. Specifically, Moriel had documented a detailed conversation with Alvaro Sanchez wherein the Delhi gang member explained how the Santa Ana shooting went down and confessed that he was one of two shooters. Sanchez expressed bewilderment that Vega had been charged in connection with the crime, according to notes taken by Moriel, saying, “It’s kind of fucked up because this guy [Luis Vega] get’s popped for this case while the three other people who were actually there … were still out there.”
If this fact didn’t seem to trouble the DA’s office, it was devastating for Vega and his family. Vega’s mother, Maria Ruiz, said that what happened to her son has been emotionally shattering and “broke” their family. “This has been really hard on him. I am still at this point trying to get him to speak about it,” she wrote in an email to The Intercept last fall. “It was really hard on our family.”
“I never knew how corrupted Orange County was [until] now,” she added. “Orange County law enforcement ruined my child’s life.”
The details of Vega’s case would never have come to light if it weren’t for a public defender named Scott Sanders. At the end of 2011, Sanders was at work on two high-profile death penalty cases. One was against Daniel Wozniak, accused of killing two people (and dismembering one of them). The second was against Scott Dekraai, responsible for Orange County’s worst-ever mass shooting.
As Sanders prepared for Dekraai’s trial, he sought access to files held by prosecutors, including records on a jailhouse informant named Fernando Perez, to whom Dekraai had apparently confessed details about his crime. As it turned out, Perez had also collected a confession from Sanders’s other client, Wozniak. It was an interesting coincidence, Sanders thought, that both of his clients had divulged incriminating information to the same man.
Prosecutors fought Sanders’s request for the Perez records, but eventually Judge Thomas Goethals ordered the state to produce them. Upon receiving the file, Sanders and his team were stunned to receive a trove of information — approximately 5,000 pages of discovery materials connected to nine cases in which Perez worked as a snitch for the government.
As Sanders pored over the documents, he discovered that Perez had been used as an informant in a number of prominent gang-related cases. The same was true of another inmate whose name appeared in the records — the prolific Oscar Moriel. Both men were also members of the Mexican Mafia gang. Most damning were notes from Moriel to his government handlers that suggested Orange County sheriff’s deputies had worked with the jail to orchestrate contact between Moriel and other detainees for the purpose of producing inculpating statements.
The arrangement, if true, would run afoul of a decadesold Supreme Court ruling, Massiah v. The United States, which prohibits government agents, including informants, from questioning or coercing statements from defendants who have already been charged and are represented by counsel. As Sanders looked more closely at the records, he began to wonder: Had law enforcement agents used the same tactics to get Dekraai or Wozniak talking?
Sanders also noticed that the amount of material prosecutors disclosed to defense attorneys varied wildly from case to case. In one case involving Perez, just four pages of records related to the snitch had been turned over; in another, some 200 pages had been released. The same was true for cases involving Moriel. “That was a stunner for me,” Sanders told The Intercept.
The situation strongly suggested that some Orange County prosecutors had deliberately withheld critical information from defense attorneys that could have potentially helped their clients — either by calling into question the tactics that led to confessions or by suggesting that the two informants, each facing serious charges of his own, were working as snitches for personal benefit. That in turn would undermine their credibility, along with the information they claimed to have obtained. Or, as in the case of Luis Vega, the withheld information could demonstrate that a defendant was innocent.
No one argued that Sanders’s client Dekraai was innocent, however. In October 2011, in the midst of a custody battle with his ex-wife, Dekraai walked into the salon where she worked in Seal Beach, California, and opened fire, hitting eight people, seven of whom died. Dekraai then killed an eighth person sitting in a parked car outside the salon. He was quickly captured and arrested. Two days later, Tony Rackauckas, the elected Orange County district attorney, announced that his office would seek the death penalty.
Exactly what Dekraai said to Perez has not been made public. But, according to court testimony, in more than 100 hours of recordings that prosecutors and sheriff’s deputies made of the two men talking between their cells, Perez probed for details of Dekraai’s crime. He questioned Dekraai’s state of mind and even asked about what he’d told his lawyers about his case. Dekraai had actually confessed his crime to police just hours after his arrest — though he initially pleaded not guilty in court.
Why local officials, including prosecutors, would feel the need to employ a snitch in what would almost certainly be a slam-dunk death case in conservative, law-and-order Orange County is particularly confounding. To Sanders, it points directly to a “win-at-all-costs mentality” that has pervaded the Orange County District Attorney’s Office.
In January 2014, after nearly a year spent scrutinizing records and transcripts related to a number of Orange County prosecutions — Sanders filed a whopping 505-page motion arguing that the death penalty should be taken off the table in Dekraai’s case. In separate motions, he went further, arguing that his client’s statements were obtained in violation of law and should be suppressed, and that the government’s conduct was so corrupt that the OCDA should be recused from prosecuting the case. (In 2015, Sanders filed a similar 754-page motion in the Wozniak case.)
“The right to a fair trial is only meaningful when those who prosecute and investigate crimes are committed to both honoring defendants’ constitutional rights and disclosing evidence that is favorable and material, as mandated by state and federal law,” Sanders wrote in the Dekraai motion. “The Court-ordered discovery reveals investigative and discovery practices by the Dekraai prosecution team that are rooted in deception and concealment; an unchecked and lawless … informant program overseen by the OCDA; and a string of prosecutions which confirm a culture that confuses winning with justice — prosecutions marked by repeated and stunning Brady violations, suborned perjury, and a myriad of other misconduct.”
Over the objections of prosecutors, Judge Goethals ordered a hearing. He was “anxious” to hear the evidence and determine “where the truth lies,” he said.
To say that the OCDA’s office was displeased would be an understatement. Veteran reporter R. Scott Moxley, who has covered criminal justice for the OC Weekly for two decades, has doggedly pursued the unfolding snitch scandal. He described standing next to a prosecutor when the “bombshell” Dekraai motion arrived in the DA’s office. “He was livid,” Moxley recalled. “The prosecutors, if I summarized it, you know, their position was up front: ‘This is all bullshit.’”
The unprecedented hearing, which explored allegations of prosecutorial misconduct to a degree rarely seen, began in March 2014 and stretched into the summer. “As we proceeded, two things were happening in a general view,” Moxley said. “One was that [Sanders] was scoring points in court.” The testimony and evidence were consistently backing up his accusations and the attitude among the prosecutors started to shift. “At first they were really angry,” Moxley said. “And then they were like, ‘Well, OK, some of [the allegations are] right — but our intentions!’” he continued, with mock indignation. “He’s impugning our intentions — and our intentions are noble. It’s all accidental errors.”
Over the course of the hearing, Sanders called to testify some 28 prosecutors and law enforcement officers, along with snitches like Perez and Moriel. Much of the testimony was simply incredible.
Prosecutors called to the stand consistently shifted their stories and minimized their infractions. Sure, there may have been instances of failure to turn over evidence to the defense, they argued, but that’s because they were carrying a heavy caseload. Or because they didn’t fully understand the requirements of the laws they’re bound to uphold — namely Brady and Massiah, among the most basic laws governing due process for criminal defendants. At least one prosecutor repeatedly insisted he simply couldn’t recall why he’d failed to turn over Brady materials.
In another turn, prosecutors and at least one sheriff’s deputy attempted to shift blame to the feds — in particular, a former assistant U.S. attorney (and current Orange County judge) who they claimed had forced them to withhold Brady evidence related to informants who were also being used in federal cases. But when the former federal attorney, Terri Flynn-Peister, took the stand that summer, she roundly refuted the accusation. Erik Petersen, a veteran gang prosecutor, also testified that in one case he’d actually been given “an order” not to turn over discovery. When asked who gave the order, Petersen responded, “I don’t know.”
At times, prosecutors’ own files belied their insistence that they did not independently withhold important evidence. One memo extracted by Sanders showed an OCDA investigator telling Petersen that information provided by Fernando Perez would “likely greatly enhance” the prosecution of Dekraai; the investigator requested that Petersen not reveal Perez’s name, noting that nothing about the snitch or his work had been revealed to Sanders.
With such shifty behavior exposed in court, the prosecutors’ testimony came across as hardly more believable than that of the informants Perez and Moriel. Although the two men both faced charges that could send them to prison for life, the pair professed to be working as informants not for any personal benefit — like a potential sentence reduction — but simply because it was the right thing to do.
On the stand, Perez recalled sitting in a jail cell and thinking about his life. “I … just felt that I was done, done with the [gang] life,” he recalled. So he reached out to deputies with the OCSD’s Special Handling Unit, in charge of the county’s jailhouse informants. Since that day in 2010, Perez said, he’s only told the truth about everything he’s done and heard as an informant. “You know, I’m a changed man,” he explained. “I changed my life around and I did the right thing.”
But under intense questioning over three days, Perez’s story unraveled. Although he portrayed himself on the stand as having begun his work with the government in 2010, he ultimately conceded that, yes, he’d acted as an informant prior to his supposed epiphany, and he’d also previously floated the story about being a changed man. Dekraai’s attorneys noted a previous sentence reduction Perez had received as a result of his informant work, a detail Perez claimed not to remember. Still, notes he wrote to his law enforcement handlers after starting his latest stint as an informant were titled “Operation Daylight” — apparently a reference to his hope that his snitch work would result in his freedom.
The months of testimony painted a shocking picture of collusion to violate the constitutional rights of jail inmates awaiting trial.
Other elements of Perez’s “work” proved even more troubling. Although he testified that he never cozied up to inmates or tried to get them to open up about their cases (conduct Massiah forbids), a recorded interview revealed Perez specifically telling prosecutors about asking Dekraai questions in an attempt to get him talking. In correspondence with Orange County law enforcement, Perez mentioned working on his “assignment” and expressed how much he loved “this little job I got.” Another note opened with the line “My mission is complete.”
Perez also wrote to deputies suggesting they move an inmate closer to his cell — apparently to gain a better opportunity to speak with him. Moriel, too, engaged in such strategizing; in at least one note to deputies, he invoked a plan to transfer a specific inmate close to him. The plan, which Moriel referred to as the “dis-iso” scam, was simple: Provide a snitch a particular housing classification — in this instance, a disciplinary-isolation placement — to bolster his credibility with other inmates. Because inmates assume snitches would not be placed in disciplinary housing, the move would help to mask his identity as an informant. Then, house the targeted inmate in the same block — within chatting distance of the snitch.
Proof of such maneuvers lent credence to allegations Sanders made about his clients’ cases. That Perez had extracted confessions from both Wozniak and Dekraai indicated that he had been housed near them deliberately, he said. The state denied this charge.
Taken together, the months of testimony painted a shocking picture of collusion between Orange County law enforcement officers and the informants they employed to violate the constitutional rights of jail inmates awaiting trial — in particular, the right to have an attorney present for questioning by the government or its agents.
In August 2014, Judge Goethals made his ruling. He found that while there had clearly been some inexcusable discovery problems and questionable witness testimony, there was not enough evidence to suggest that the Dekraai case had been tainted by systemic corruption. As a sanction for the violations he did find, Goethals banned Orange County prosecutors from using any of Dekraai’s incriminating snitch-collected statements at trial.
Sanders was “tremendously appreciative” that Goethals spent so much time on the hearing, he told The Intercept, but disappointed that the ruling was limited to suppressing the statements. “Judge Goethals had his reasons — and how could we not be respectful of his reasons?”
Nevertheless, Sanders kept probing for additional discovery. That September, he uncovered evidence that the Orange County Sheriff’s Department — going back more than 20 years — had been documenting and concealing its justification for moving jail inmates. In Dekraai’s case, the documents — known as TRED records — suggested that Perez’s placement next to Dekraai was intentional.
The existence of the records also revealed that at least two witnesses lied at the 2014 hearing: sheriff’s deputies Seth Tunstall and Ben Garcia, both with the Special Handling Unit. On the stand, Tunstall claimed it was not his responsibility to cultivate or manage informants. Both deputies professed to know hardly anything about inmates being moved to facilitate conversations, aside from a few isolated cases, and both denied the existence of records that might confirm Sanders’s allegations.
The TRED records revelation persuaded Goethals to reopen the hearing. This time, Tunstall and Garcia had little choice but to change their tune. Tunstall tried claiming he’d simply forgotten about the TRED records during his previous testimony — despite estimating that he’d penned tens of thousands of them over his time with the department. Later, he testified that TRED records are considered confidential, but that he would have answered had he been asked specifically about them.
For his part, Garcia testified that he had reviewed TRED records prior to taking the stand in 2014 — they helped determine “who moved who and why” — but, echoing Tunstall, said he failed to mention the records because “that’s the way we were trained.”
At the close of the hearing, Goethals was so disturbed by the new evidence that he concluded the entire OCDA should be recused from prosecuting Dekraai’s pending death penalty case. On March 12, 2015, he amended his previous ruling — this time agreeing that there were “serious, ongoing discovery violations” in the case. The judge called out Tunstall and Garcia by name for having “either intentionally lied or willfully withheld information,” as well as Petersen, the veteran gang prosecutor, whom he “did not believe.” He also faulted District Attorney Tony Rackauckas for failing to ensure that defendants’ constitutional rights were upheld not only by prosecutors but also by the law enforcement personnel with whom they work in tandem. “Certain aspects of the district attorney’s performance in this case might be described as a comedy of errors but for the fact that it has been so sadly deficient,” Goethals wrote. “There is nothing funny about that.”
With the OCDA off the Dekraai trial, Goethals sent the case to the office of California Attorney General Kamala Harris for prosecution. Harris quickly appealed, arguing that the OCDA was unaware the TRED system existed and couldn’t be blamed for problems inside the sheriff’s office. Harris’s office maintained there was no reason to believe the OCDA couldn’t competently handle the case. This claim was particularly notable considering that Theodore Cropley, the deputy attorney general who wrote the appeal, was present in Goethals’s courtroom throughout almost all of the monthslong Dekraai hearing, sitting behind OCDA prosecutors, and was certainly aware of the troubling evidence of misconduct in that office. Yet, none of that information was included in the appeal.
Since Goethals’s ruling, Rackauckas and his prosecutors have remained defiant. Instead of expressing dismay that ethical or legal lapses may have violated the due process rights of countless defendants, those who have spoken publicly have mainly attacked Sanders, both personally and professionally. One prosecutor called him an “imbecile”; another said his legal thinking was daft. A third, Mark Geller, told the Orange County Register that “Sanders shouldn’t even be a lawyer based on the tactics he’s engaged.”
Prosecutors have also sought to undermine Goethals, who was once a prosecutor in the OCDA as well as a defense attorney. As the Los Angeles Times reported, since the start of the Dekraai hearings in early 2014, Orange County prosecutors have repeatedly sought to remove their cases from Goethals’s court. Between February 2014 and March 2015, they sought to disqualify Goethals 57 times based on alleged prejudice — a marked contrast to previous years. Prosecutors sought disqualification only twice in 2013, and not at all in 2012.
In March, the scandal even took a violent turn when a local defense attorney, who recently succeeded in overturning a client’s conviction based on misconduct, was beaten up in the courthouse by an OCDA investigator. The two had exchanged a short but heated set of accusations about who was more “sleazy,” defense lawyers who exposed law enforcement cheating or the county officials responsible for it.
Amid the petty sniping (and blows to the defense attorney’s face), fallout from the hearing continues. Even as officials insist that all is right in the house of Rackauckas, at least 15 serious felony cases have so far been directly affected, according to Sanders. Part of the problem is that the cops have gone quiet. In one case, Tunstall and Garcia, the deputies called out for lying in the Dekraai case, refused to testify, invoking their Fifth Amendment rights and thus avoiding cross-examination by defense attorneys.
And yet, more than a year after the deceptive testimony was exposed, neither the attorney general nor the OCDA has filed criminal charges against either deputy — or anyone else connected to the snitch scandal. To date, only Petersen, the prosecutor Goethals singled out for lacking integrity, has resigned his position.
The refusal to hold anyone accountable for the corruption is not just a matter of DA Rackauckas’s nonchalance. Other officials implicated in the scandal have displayed a similar attitude. Sheriff Sandra Hutchens publicly shrugged off the allegations in an extensive interview with a local TV news anchor posted to YouTube in October 2015. Regarding the TRED system, she said the DA’s office had known about those records for years, and the system wasn’t meant to be secret. The deputies who said that were just mistaken — or “unclear” about what they could reveal. She added that judges have said the TRED record itself should be private, but not necessarily the information it contains. In other words, it’s all just a big misunderstanding. “You know, there’s this whole talk of a conspiracy that this is secret information. It’s totally false,” she said.
While denying every allegation leveled at her department, Hutchens also admitted that she hasn’t conducted any actual investigation into the matter or addressed the potential perjury by Tunstall and Garcia. She has portrayed herself as being hamstrung while awaiting any comprehensive outside inquiry that might occur. “I can’t do an administrative investigation until that is done. I can’t even get a statement from my deputies,” she lamented. “If they did something wrong, I’ll deal with that. But we don’t know that, to this day.”
At the Dekraai hearing, Dan Wagner, who oversees the OCDA’s homicide division, said that he and other attorneys looked into the allegations made against the office (an inquiry that was not officially documented) and found nothing amiss — aside from honest Brady mistakes. Rackauckas, for his part, initially said those errors were the result of an overworked staff, and then four months after the ruling, announced that he would seat a hand-picked panel of lawyers — dubbed the Informant Policies & Practices Evaluation Committee — to review the situation.
In an email to The Intercept, a California AG spokesperson said the office was conducting an “independent investigation,” but only “specifically regarding” the Dekraai case. An OCSD spokesperson said the department’s internal inquiry would proceed once the state investigation was completed.
In November 2015, almost two years after Sanders first stumbled upon the evidence that exposed the informant scandal, more than 30 individuals and interested groups joined Erwin Chemerinksy, dean of the law school at the University of California, Irvine, and former California attorney general John Van de Kamp in signing a letter requesting a Department of Justice investigation. “The unwillingness of the OCSD and OCDA to acknowledge the due process implications of the alleged misconduct has become only more entrenched as attention to the situation has grown,” they wrote. “It is our firm belief that the Department of Justice is the only entity equipped to conduct this investigation and restore public confidence in the criminal justice system in Orange County.”
The DOJ has not revealed whether it will undertake any investigation. (The department did not respond to The Intercept’s requests for comment.) But in familiar fashion, rather than consider Chemerinsky’s concerns, Rackauckas’s office lashed out at the respected legal scholar. In a press release, the OCDA parsed portions of a law review article Chemerinsky co-authored in 1996 — in the wake of the O.J. Simpson trial — on the subject of legal commentators’ ethical responsibilities. The OCDA essentially took the position that, since he hadn’t been present during the entirety of the Dekraai hearing and hadn’t ordered a full set of transcripts, Chemerinsky should not be speaking out. The DA said the concerns expressed in the letter were based on “factually incorrect media accounts of the circumstances of the case.”
Chemerinsky, who spoke to The Intercept last year about the implications of the snitch scandal, recently declined further comment, noting that he is now representing Orange County’s superior court system, which is fighting the OCDA over its retaliatory actions against Goethals. In a court filing, the county’s supervising felony judge wrote that the DA’s conduct toward Goethels has jeopardized “all felony cases” in Orange County by bottlenecking the system.
If Rackauckas hoped his informant committee would clear the DA’s office, its investigation did no such thing. The committee completed its report in December, noting that where the use of informants is concerned, confidence in the criminal justice system in Orange County “has eroded.” The report criticized the “win-at-all-costs mentality” among some prosecutors, describing the office as a “ship without a rudder.” Among the recommendations: The OCDA should revise its policies for using informants and ensure better supervision of related cases; provide more robust training for prosecutors; and establish a conviction integrity unit to review post-conviction innocence claims.
But the committee also emphasized that its review was incomplete. Lacking subpoena power, it had access only to whatever materials officials voluntarily turned over, and it could not force anyone to talk. The review should be considered an “evaluation,” not an “investigation,” the committee wrote, and concluded that an outside “entity with document subpoena power and the ability to compel witnesses to be questioned under oath” should conduct a full inquiry. In short, the committee had come to nearly the same conclusion as Chemerinsky, whose opinion the DA had flatly dismissed.
In the wake of the report, Rackauckas finally submitted his own investigation request to the DOJ, although his appearance at a press conference around the same time suggested that he remains unconvinced it is actually needed. “We know there is no evidence whatsoever of any of this sensational wrongdoing that’s been alleged,” Rackauckas said bluntly. “There’s been some mistakes made,” particularly with meeting evidence discovery obligations, but there were “no innocent people” convicted as a result and “no injustice,” he added. “We know that doesn’t exist.”
How exactly Rackauckas can be so sure is a mystery. With a scandal of such proportions, it’s impossible to draw conclusions about possible miscarriage of justice absent a concerted effort to identify and review every case that may have been tainted by violations of due process. Orange County is littered with victims of the scandal — from the grieving families of Dekraai’s victims, who have yet to see justice of any kind, to Luis Vega, now 22, who was locked up at 14 for a crime he almost certainly did not commit.
It might be one thing if the law enforcement officials involved had never navigated a scandal of such scope. But Rackauckas and Sheriff Hutchens should be more familiar with the process than most. Both were working in the criminal justice system in Southern California when the last big snitch controversy, in Los Angeles County, erupted in the state. Rackauckas had joined the OCDA and Hutchens was working in the L.A. County jail system — ground zero for the scandal. According to a sheriff’s department spokesperson, Hutchens was a junior jailer at the time and didn’t work at the men’s jail where the scandal unfolded. The OCDA declined to comment.
“Our criminal justice system is much better at looking forward than backward.”
The corruption in L.A. County was uncovered after a career criminal named Leslie White explained to the press and local sheriff’s department how he cooked up detailed false confessions that he then peddled to jailers as having come from fellow inmates. The ensuing grand jury investigation involved testimony from more than 100 witnesses and thousands of documents. In its report, the 1989-1990 grand jury concluded, in part, that a number of informants had committed perjury, the DA’s office had deliberately failed to curtail misuse of informants, and the sheriff’s office had violated defendants’ rights. The report estimated that over a 10-year period, as many as 250 cases involving informants were affected.
The grand jury report noted that convicted defendants could raise wrongful conviction claims based on the county’s use of jailhouse informants — but it isn’t clear how many claims were ever raised on those grounds. Today, the number of cases that may have been tainted by Orange County’s scandal is similarly unclear. Whether such a figure will ever be known — or whether affected defendants will have a meaningful chance to challenge their convictions — will depend on a thorough and independent investigation.
Responding to questions about the scandal, an OCDA spokesperson declined to provide any answers, stating that The Intercept was requesting an “exorbitant amount of information” that would “require a lot of time and resources” to address. “Your questions show a slanted bias and our participation appears to solely serve as a filler. We don’t believe you’re interested in being fair,” the response reads. “We respectfully decline to participate in your article.” Indeed, the OCDA has consistently argued that the media have overblown resolvable discovery problems and that any systemic issues resided in the sheriff’s department.
Still, it doesn’t appear the scandal will recede into the background any time soon. In a court hearing last week related to Sanders’s other capital client, Daniel Wozniak, sheriff’s department officials testified that they’d found yet another trove of documents — computer notes related to jailhouse informants that were taken by Ben Garcia and other deputies — that has never been turned over to the defense, or, apparently, to prosecutors. According to the Orange County Register, officials testified that the OCSD administration had no idea deputies were keeping the notes, which span at least a five-year period beginning in 2008. The OCDA quickly issued a press release condemning the sheriff’s department.
“Our criminal justice system is much better at looking forward than backward,” Laura Fernandez, a lawyer and fellow at Yale researching prosecutorial misconduct, wrote to The Intercept. Fernandez, who signed Chemerinsky’s letter to the DOJ, said that outside of death penalty cases (which have built-in layers of post-conviction review), legislation and the expansion of certain legal doctrines have made “reviewing cases progressively more difficult.” Yet the kind of misconduct that’s surfaced in Orange County shows precisely why identifying and reviewing all potentially impacted cases is so crucial. “Where there is substantial evidence of concealment, distortion, and even outright deception on the part of the state, as there is here, reevaluating tainted cases is not only possible, but critically important.”
What is abundantly clear about the situation in Orange County is that if it weren’t for a handful of people — chiefly, public defender Sanders, Judge Goethals, and reporter Moxley — the snitch scandal probably would not have made news outside the courthouse in Santa Ana.
Indeed, as the scandal began to unfold, Moxley recalls being pulled aside in the courthouse by a veteran Orange County prosecutor, who suggested that he back off the story. “He goes, ‘You know, if you turn away from this, this goes away,’” Moxley said. “And he wasn’t saying that as a compliment. He was saying, ‘You’re inflating this. If you leave it, then it’s just Sanders barking in a courtroom.’ And it stunned me, because it was early on, and I thought, wow, this is how they’re viewing it.”
For Maria Ruiz, the mother of Luis Vega, who at 14 was jailed for nearly two years for a crime that county law enforcement knew he did not commit, that sort of flippancy isn’t new. Indeed, it wasn’t until last year that Ruiz learned police and prosecutors had evidence in hand that her son was actually innocent months before the attempted murder charge against him was finally dropped. “I was so emotional” after finding out, she said. “I was crying for the whole month.” She always knew her son was innocent — and early on, she told the prosecutor just that. “I told the DA, ‘Look, you have the wrong person.’ And he just shook his head at me.”
Thank you for this excellent article and for skillful avoidance of tabloid sensationalism. I agree that the issue here is not just the level of misconduct for these cases, but the fundamental lack of ethics by those whose job description is to uphold the law and to seek justice.
And standards are the most basic and fundamental to their duties, and yet, nobody seems to remember them, or be aware they exist. I hope that the Bar Disciplinary Committee will get involved, because it’s simply unethical and should be unacceptable.
Great reporting here, I think. Very detailed.
Along time ago, back in the 1970’s I was a young Police Officer, I was a Vietnam vet and was wanting to do the right thing, but when I heard about the actions of the OCSD and DA’s office, I said…..Please let me say in LASO/LASD…..which was not that much better…..but, the enemy you know visa vie, what you don’t know, see, I as living in Newport Beach, and well, I was looking for something a little slower. God, OCSD comes back to life all these years later……does anything ever change?
Thank you for the great article. The government has become so corrupt that they can’t be trusted for anything.
“prosecutor” as a job is not really a place that law students aspire to for justice as it once was. It is now a place for sadists and chronic liars to get to feel safe and protected. It is also for the same who are also ambitious for the road to elected offices and the White House who have a twisted perversion for power and dominance over others – kind of like on the job “training for despotic wannabe rulers”. It’s where lying becomes an art form to be honed and polished prior to running for office. It is also the reason why felons cannot vote – too many predictable votes for the other candidate.
That new ‘Dehli’ street gang is known to be very territorial. They’ve been putting a lot of shit out on the streets. I don’t want to ‘blame the victims’ here, but they might want to find their own designated areas going forward.
this street-gang $hit is going to end in America. Streetgangs are contrary to human development. They are like a disease, like aids. The operating environment of America with the wallstreet fraudulent currency system create them.
So you see how this is going to play out?
or
this street-gang $hit is going to end America.
Blaming people shot at for not allowing a street gang to scare them out of talking to their friends? That is some kind of a new world record in victim blaming. Enjoy your trophy while it lasts.
I have a better idea. We enact a “right to bear arms” that actually allows people in the Metropolitan Sacrifice Areas to keep and carry guns just like white people in the suburbs who don’t have gangs suppressing their right to talk in front of a house, so that they can defend themselves against these maniacs. And the next time they pull a stunt like that, instead of everybody in the area hiding in their bathtubs, they pull out their rifles and aim down and defend the neighborhood. Maybe the mother of one of the kids he shot gets overzealous and walks out where the wounded terrorist is trying to crawl away, and from the feet up starts putting holes in him everywhere Keanu Reeves has one in The Matrix. The police come and scrape up the remaining bits, they tell her she might face charges, but then the governor announces that any other parent would want to do the same thing, so he’s going to issue her a pardon to spare the public the expense of proceedings.
It’s true, of course, that such armed resistance carries its own risk of injury to some terrified bystander hanging back in the van hoping to stay out of things. There is a difference though in that (a) it is more apparent to him that running away immediately is a safer course of action that freezing, and (b) the risk of injury to him can be justified as a risk taken in order to defend the innocent from ongoing attack, rather than as a pointless bureaucratic proceeding. It is also true, of course, that guns dispersed against a poor population are going to cause their share of mishaps and incidents, but that damage should be weighed against the broader sense of freedom the people have in their lives.
All lawyers have the best sits reserved in Hell, not just prosecutors.
The photo for this story also deserves praise. Yes, it’s just some prisoners at the phones. But then you look at the little details. The way that each phone has a bare spot on the wall worn to the left of it, from prisoners holding their hand up in the same gesture over and over. The uniform assumption of a right-handed posture for each inmate. The fact that, given a chance to put a panel on the wall to the right and instructions to the left, the prison intentionally put the four phones so close together that to use the third one, you’d have to go uncomfortably close to people on either side even by “free-world” standards. They’re designed to create little bumps, mishaps, things that among violent inmates can readily become fatal fights. And I don’t think it looks like that’s an accident. It brings me into the scene and makes me wonder further. With all that prison labor, why can’t they even paint the wall? Why do they have half ripped or missing lists of numbers taped to some of the phones over what looks like an LCD display? I feel as if this image somehow conveys a deep sense of deliberate bureaucratic disorder surrounding the prison, all in a simple well-framed shot.
Prosecutors across this country were never meant to have the ability to do the shit this excellent piece exposes, never! There is a discusting marriage of unabated power and/or federal funding at play in every prosecutors case or decision NOT to prosecute.
Santa Clara County Dept. of Child Support Services-
shows up to court and bears witness to testimony by the petitioner that she isn’t following court orders. The Commissioner acknowledges the criminal contempt of court order conduct by telling the petitioner she will spend 5 days in jail per violation and she will lose custody of the child that she was there demanding support for. The court and the Dept of Child Support Services attorneys did nothing more, not a god damn thing more.
Except, they raised the child support obligation amount the respondent had to pay.
The very same court and Dept of Child Support Attorneys issued a $25,000 arrest warrant for the respondent when he couldn’t pay the child support due to loss of job.
The respondent was arrested and spent 5 days in jail and is still fighting his unconstitutional arrest and jailing.
Every person that works in the Dept of Child Support system should be shot! They don’t give a shit about the kids for which they claim to be working for. It’s about FEDERAL DOLLARS! The Feds incentivize each child support case. The county gets money and the attorneys in the dept. of child support services gets money. The more cases the more money for everyone. Why would this happen?
Please, someone help me understand how the Santa Clara County DA will not prosecute a person for violating a court order that keeps a parent away from their child but the prosecutor will prosecute that same parent being denied access to their child for not paying money when there is no money to pay by no fault of their own?
Someone please help me understand how this is constitutional, acceptable by our society, honorable or whatever?
Anyone have the knowledge? Someone has to……………..
quote”The county gets money and the attorneys in the dept. of child support services gets money. The more cases the more money for everyone. Why would this happen? “unquote
I was the first father to sue the Sacramento Co. Child Surpport Division DA, in 2002, to find out where $56,000 in child support money collected from my paycheck went. Short story..they stole it. Lock Stock and Barrel. My attorney, after spending 6 weeks of rangling with the DA, was threatened with various sanctions, disbarment, finally conceded to me personally at the end of the “trial”, which is actually just an extension of a Divorce, that he had come to the conclusion the whole system is rigged, and the Child Support DA and Court were simply…LEGAL THIEVES, who conspire to keep their little secret from being exposed in court to the point they WILL …well..let’s just say they’ll employ extreme prejudice should you try. I know. I did. I was ORDERED to sell my home, and to leave the state of California, which I ultimately did. I will NEVER step foot in that vile, corrupt, viscous, contemptible cesspool of a state again.
As for anyone who thinks you can fight this system and win, I have some advice. They WILL kill you. ..one way or another.
The guy ACTUALLY murderd EIGHT people and confessed to do so! Who cares how he is convicted?!?????
“Who cares how he is convicted?!?????”
Everyone who believes in a fair criminal the rule of law, the Bill of Rights, and fairness in general.
Apparently, that doesn’t include you.
Couldn’t possibly be her. She must’ve been educated in large part by Faux News.
Reading the comments is as terrifying as the article. I think I’m the only one here who’s not only not an attorney, but has never even been charged with a crime (yet).. The absolute crushing lack of faith is expected, yet oddly melancholy. I was hoping to see at least one bright eyed and bushy tailed defense attorney who hasn’t represented 476 serial rapists yet. Ugh. This world. Nihl.
I didn’t see anyone though so smart they had the solution in their comment; just a lot of back and forth, ‘you’re a stupid faggy faghead’ stuff, which is fair. I assume no attorney I would ever hire looks as amazing as I do in yoga pants drinking breakfast whiskey; but where are the idealists? Do I need to de subscribe to my existential ‘I’m dead inside’ party and go to law school? I don’t want to so get ON IT PEOPLE.
I’m reading the ‘Prosecutors Code of Ethics’, and I think the OCDA was in compliance, at least in spirit:
1. Don’t make up evidence when you can use a jailhouse snitch to provide you with evidence.
2. Don’t use jailhouse snitches when you can simply withhold critical evidence from the defense.
3. Don’t withhold critical evidence when you have a slam dunk case.
But ultimately, the decision should be made by each individual prosecutor. You can’t expect prosecutors to follow a system of rules and regulations written by someone else. Human beings are autonomous entities who should not be subject to arbitrary rules imposed by a tyrannical government. Prosecutors understand this; it is in their DNA. They are the last of the rebels, iconoclasts who dare to defy authority.
I would have expected The Intercept to be sympathetic to such free spirits, and am rather disappointed by this article.
You’ve finally jumped the Great White shark, benitoe. As a Non-Attorney Spokesperson all I can say is … bah.
#4. Don’t collude with the Feds to import tons of cocaine from South American drug cartels to fund U.S. foreign policy mis-adventures.
a work of art for the BH compliment
sounds inspired
a consistency of appreciation to be appreciated
Good work, thank you.
If Dante is right and there is a 7th & hottest ring in Hell, prosecutors will no doubt join those who, ‘In times of crises stay neutral’.
moral crises
Terrific article, extremely well researched…do more…
….prosecutors are never taken to task because they withhold exculpatory evidence….it’s kind of like the game “hide the pea”…..frequently, I mean very frequently, the discovery of exculpatory evidence may take years of investigation by dedicated individuals…even then, the responses will be that the evidence was “overlooked”, “placed in the wrong file”, “personnel was new”….oh, and one of my favorites is “well, he retired from the office” or “he retired and he is dead now” so there is no opportunity to get the inside case history…..and, many DDAs get pressure from administration to excel, win “at any cost”, since the position of DA is an elected one….
……those who think this type of behavior is limited to just gang violence and long term offenders, are sadly mistaken…..it can happen to anyone who is accused of a crime – large or small – which puts one under the thumb of the judicial system…..and, in this case it would be refreshing to see more efforts from both the State AG and the federal government to sort out the facts.
Again, Mr. Smith, thanks for this excellent article…
Who is Mr. Smith? lol
…The author of the story?!
Well stated. :)
Jordan [Smith] is a girl ????????
Thanks for the correction…..(should have more attention to the pic; attention on story)…..
……”Thank you MS. SMITH”…..
…….again, super, well written coverage of a more than troubling practice by prosecutors….
Can anyone explain to me why Obama’s Justice Department is interfering with the FBI’s attempt to interview Cheryl Mills in regard to Hillary’s breech of national security by conducting classified business on her home server?
Read more at: http://www.nationalreview.com/article/435393/hillary-clinton-e-mails-Cheryl-Mills-DOJ
It’s called corruption.
with regard to mexican gangsters, America has a really huge problem. It is actually worse than religious divisions. And it is worse than tribal. Street gangs are destroying America and when you take a close look at the situation, it a land grab. Occupy and take. The mexican gangs in the US take orders from the drug industry in mexico. HEROIN marketing is the same as Britain did to China in the 1800’s. Get people addicted, get paid, make slaves.
If you think otherwise, you are ignorant. Prosecutors have no good method of removing gangs from American streets and can only act after a crime has been committed. There needs to be a law against ganging. Gangs are not democratic entities, they are strictly criminal intended.
The mexican drug network in the US is enormous and is killing America. Want to know why repubs want private schools?
You weren’t around in the 1800’s which is why you aren’t making the connection.
I have a suspicion that this same scenario is at the root of the israel-palestine conflict and the objections to iran.
The US was formed by an intentional prescription for individual (not group, not gang) rights in a very socialist fashion with recognition of individual power and capability and self destiny in order to provide a good operating environment to develop a comfortable lifestyle using American ingenuity to be provided for all Americans. MOST OTHER SOCIETIES ON EARTH DID NOT NOR COULD NOT DO THAT.
There are 250,000,000 people south of the US border in poverty who don’t have the wherewithall to change their own country. Could be American interference. The current rant of dumb media is that the US is experience a net migration because of the economy so we dont need a wall. Right – until the economy picks up and suddenly you may wish we had a wall.
Borders Matter. In America, you can worship as you choose. But too many have invoked their own cultural standards that are not american but reflect relationship styles as if they were refounding their country in America. I HAVE SEEN DEMOSTRATORS FLYING THE MEXICAN FLAG IN THE US. (i also reject the israeli flag being displayed in the US).
THIS IS AMERICA. IT IS NOT A DUMPING GROUND, OR A PIT STOP, OR A COUNTRY TO BE BUNRUSHED AND OCCUPIED. IT NEEDS A SERIOUS REBUILD.
German narrowly lost in the vote for the national language back when most of us were illegal immigrants.
But, as for your off topic comment, are you including “white” gangsters in your rant that turns into xenophobic nonsense? The ones who wear suits and ties?
absolutely.
Many founders of the US were opposed to political parties. I am also opposed to political parties and were i in charge, i would ban the use of party names on ballots.
The olympics, all about personal individual development and achievement. It is way too country sponsored now but the remnants are still there.
Just look where gangsterism has gotten us. It is getting to the point where top jobs are gangster oriented. It’s wrong. And i as well hold this truth to be self evident.
Sheesh, what a stupid, racist, ignorant and xenophobic rant. OT, too.
I don’t know where to begin, so it’s a good thing it doesn’t even deserve a response.
” I HAVE SEEN DEMONSTRATORS FLYING THE MEXICAN FLAG IN THE US.”
Aww, diddums. That must have been so distressing for you.
not a racist, i am an Americanist. And, i do not want to live in mexico.
Where do you live?
cant say.
my knowledge of wallstreet criminal methods has me at great risk.
but i am most definitely not a racist.
variety is the spice of life. acceptance of differences is the strength of life.
President Obama, as much as i supported him and now disagree with his TPP (it’s a nation killer), is a racial mix and quite a talented and amazing person.
i sincerely hope that satisfies any (loss for word) you may hold against me.
Thank you for your feedback and concern. I do appreciate it.
Keep in mind that almost all Mexicans are Native Americans. Native NORTH Americans.
One man’s invasion may be another man’s retaking of stolen land.
Perhaps if the state stopped shirking responsibility to its citizens and dealt with drugs and drug use with evidence based policy there wouldn’t be billions syphoned to criminal gangs and cartels around world.
Prosecutors are never reprimanded..admonished….censored..disciplined in any way….they are truly above the law
absolutely. and that final phase of devolution spells the death of America.
The same thing happened 2016 years ago.
The same thing happened in 1775 and 1792.
Now….. they’re baaaaaaaaaaaaaaaaaack
crapperhead cruz put a guy away for 17 years for stealing a calculator.
(no idea what the guy’s background was)
Here in OZ we just call it a “Verbal”…..whether it be by copper or copper’s snitch. It’s happened to me three times : 1978, 2009 & 2014.
Great story. Sanders is a hero….there isn’t enough of them. Takes tenacity.
Feeding the jails needs fodder to remain full and profitable enterprises…..we too have private prisons in Australia…..from the cop on the beat to the Chief Justice all have a financial stake in the status quo. The Prosecution has always “improved” the evidence. Its a nasty business.
Any prosecutor who claims that they don’t know the requirements of Brady and Massiah should be immediately and permanently disbarred. These cases are taught in law school fer crissakes! This claim is either perjury or admission of gross incompetence.
Additionally, my friends who are criminal defense attorneys all tell me that prosecutors failing to turn over required evidence happens all the time and is common practice. So while Orange County is a right wing hellhole (Richard Nixon et al.), this problem is far from limited to there.
Indeed. Troubling. I was always told that ignorance of the law is no defense…
Picking up on your observation. If ignorance of the law is no excuse, why are so many Supreme Court decisions 5-4 near ties? Are half the ‘wise’ justices ignorant of the law? Or is this whole charade a fraud? Maybe Mr. Bumble was right and: “The Law is a ASS”.
Yup. I’m gonna go with perjury.
The problems raised by using snitch testimony for trial evidence was raised continually the the Law and Order TV show. Defense rightfully argues that these are criminals who have very little if any credibility. Prosecution responds that these are the only types of people who can provide this type of evidence.
The problems with the U.S. criminal injustice system go way beyond this one. People of color — especially Blacks and Latinos — and poor people are profiled and harassed and arrested way more often than anyone else. Probably even worse than that, white collar crime is basically ignored — a lot of it is legal, which is another problem — while street crime is obsessed on, even though white collar crime kills & injures more people than street crime and causes massive environmental harms, which street crimes don’t even do.
The problems with this system are so deep and systemic that how evidence is gathered is almost a minor detail in comparison. We need to go after the worst criminals in the first place, which are the white collar criminals. At least most street criminals are just trying to survive. I’m not defending their behavior, but at least they have an excuse. White collar criminals are almost always very well off and have no excuse whatsoever, and they do far more harm.
As usual in the american criminal justice system, a system that in 2015 a record number of innocent people were release from jail no body is punished for these injustices. What a shame! But as long as it effects the poor and minorities all is good. National media will continue to ignore.
https://jackblueblog.wordpress.com/2016/05/14/free-speech/
This is excellent documentation of facts long known to those in the know. The US justice system is a sham and the rule of law disappeared there long ago. The systemic corruption is immense, and their legitimacy is long gone.
This is exceptionally fine research and long-form reporting — and damned fine writing as well. Thank you, Jordan Smith.
With regard to the subject matter: this is yet another in an alarmingly-long and depressingly-frequent series of revelations that suggest that corruption, dishonesty and institutionalized injustice are prevalent at the very core of the American criminal “justice” establishment.
There are a number of ways in which citizens can respond to these sordid tales, but one important way tops the list, IMHO: the next time you are called for jury duty in a criminal case, remember that a preponderance of the evidence suggests that police officers, informants and snitches, and prosecutors themselves, are all inclined to lie, mislead and conceal exculpatory evidence. And reach your conclusions accordingly, remembering that reasonable doubt is reason enough not to vote for conviction.
Thank you for the kind words. And, yes, you’re right: reasonable doubt should always mean acquittal. The problem — or one of them — is, I think, that jurors don’t necessarily understand what reasonable doubt is.
Based on this article alone, one could not blame any potential juror if they did not believe a single thing the government claims in any prosecution.
Your article speaks for itself. The notion of this kid Vega being denied bail and locked up *at all* over a charge that, what, he sat in a car??? is obscene. I think Americans literally believe that when two or more people sit in a vehicle, their souls become fused into one, and apparently this lasts even after someone gets out of the van and fires a shot on his own.
However, is there no subtle smell of bullshit at all on the defense side? I have to wonder what kind of Alice in Wonderland view of defense agrees that alright, you can capture someone, lock him in jail, deny him communications, spy on his every waking action, and yet … it’s wrong to arrange for someone to talk to him and ask him some questions. I understand that we need a line against prosecutors interrogating and threatening people continually as they approach trial, yet I’m not sure this line is drawn quite right. If someone can, in the course of an apparently ordinary day, be induced to brag about details of a heinous crime on his own initiative, is that really so bad? Provided, of course, that it is physically recorded in an impartial medium, and shared with relevant defendants!
That “Alice in Wonderland view” is actually a provision of our Constitution, embodied in the Sixth Amendment right to counsel and elucidated in Massiah v. United States, 377 U.S. 201 (1964), cited in Ms. Smith’s article, ATL.
It is if you believe in, or even simply accept, the principle that the Constitution is the “supreme law of the land” (Article VI).
I just looked it up on Wikipedia:
I’m sorry, but to my eyes, by that text, holding someone in jail for two years pending trial is bullshit. Allowing a bazillion peremptory challenges to jurors until the jury is either all black or all white, depending on who has the majority, and calling that an impartial jury is bullshit. And claiming that allowing someone “assistance of counsel” means that they can’t be given a chance, on their own initiative, to brag idiotically about the details of their crime – that’s bullshit too. Somebody on the court seriously should put on their glasses and read that paragraph again!
It doesn’t mean that at all. Neither the Court, in Massiah, nor the defense attorneys in the cases cited above, nor the author of this piece, nor I, nor anyone else I know of is arguing about what defendants might say of their own accord. The issue is, rather, that it is impermissible for agents of the state to question them, to manipulate them into admissions or to trick them into the same.
You should probably re-read the article.
We’re sort of screwed when it comes to this as well, too, if you don’t mind me tacking on more to your list of ‘this is bullshit': “to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor”.
In the case of the latter, there’s no way, short of a really thorough attorney, to gain witnesses while you’re locked up — at least not privately and without surveillance (no, I’m not saying via threat — but really, why should the prosecutors be able to do this but not the defense? And it’s not like getting lawyers to do this, not to mention being able to afford getting lawyers to do this, is easy, especially if you’re stuck using a public defender who has about 600-700 cases a year, give or take). Just for starters.
In the case of the former, we’ve been repeatedly shown that we are not being given the right to be shown the witnesses that testify against us, even when they are not even *people*. And when they are people, that right isn’t even accorded, if you’re *lucky* until you get a trial. Of course since the gross majority of cases plead out, people *never* get the chance to see who a confidential informant is in the first place… and if they don’t, they’re still not guaranteed to know who actually was the ‘witness’ (and not just due to parallel construction).
The ‘justice system’, if you’ll excuse my saying so, pisses on the concept of ‘justice’ and the spirit and law of the Constitution.
With regards to holding people in jail for two years pending trial being bullshit, I am reminded of an article I read recently about the Bronx Defenders working to set up a bail fund. It was a great story discussing a number of issues, but one of the things that stood out to me was that when contracted-for public defenders really DO want to make a positive difference, they’re often *stopped* by the justice system and shut down because it (to my eyes) threatens the status quo. I’m convinced a lot of the time prosecutors use the lengthy delays in the ‘court system’ just to keep people off the streets that they don’t like (guilty or not, they’ll take it if they suspect any whiff of impropriety or mere ‘association’ (freedom of association be damned).
Sorry, to clarify, when I said “but really, why should the prosecutors be able to do this but not the defense” I didn’t mean ‘threaten’, I meant ‘gather’. I just realized my sentence structure was a bit screwy.
Incidentally if you’re interested in the story on the Bronx Defenders I mentioned, and I suspect you might be, it can be read here: https://blog.longreads.com/2016/04/25/the-defenders/
“I’m sorry, but to my eyes, by that text, holding someone in jail for two years pending trial is bullshit.”
Obviously it is. But that’s a little separate from the thrust of most of the article. I’m not sure the article ever clarifies why the kid was held so long, but it certainly wasn’t to pick jurors. It never got that far.
I should add that the situation with the Massiah case seems even more looking-glass in that he enjoyed that special right not to be set up with a tape recording by an informant only because he had been indicted! What the hell kind of Bill of Rights provision allows formally charged suspects – and only formally charged suspects! – a right against being spied on and set up that ordinary law-abiding Americans do not have in their day to day lives?
The right in question is the right to counsel. That right attaches, per the relevant rulings of the Supreme Court, when judicial proceedings against a defendant commence. Typically, that means when a formal arrest is made.
You’re confusing different constitutional rights.
As explained, the right under examination here is the right to counsel pursuant to the 6th Amendment.
The right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” arises from the 4th Amendment and applies (at least to the extent is has not been eroded) to everyone.
The right of privacy arises from interpretations of the 1st, 3rd, 4th, 5th, 9th and 14th Amendments and, likewise, is enjoyed by everyone (in the specific circumstances in which it has been held to apply).
Hope this helps.
Really, that doesn’t help much at all. The idea that a “right to counsel” protects this guy Massiah after he’s indicted, but not before, against being set up by someone having a conversation about his cocaine business – it doesn’t make any sense. Massiah wasn’t even in jail like in this case – he was out. Any time he wanted he could talk to his lawyer and get the universal obvious advice not to talk to people about his case, or at least, not to have specifically incriminating conversations. And probably did! How is that not “advice of counsel”?
Bonus question: if the prosecutors had had their informant talk to Massiah about a new crime, would he have still been protected? I mean, if they’d agreed to set up another shipment of cocaine? Would it have to be something else, heroin maybe? Because the police do that now, have informants set people up in conspiracies, so if they can just tell the guy to say a couple of different things, it seems like the impact of this decision is absolutely minimal, unless authorities like in this case simply forget about it. But if they can’t tell the guy different things, if the indictment is like some kind of impenetrable nark shield, then that’s positively weird.
(Of course, I do not mean to suggest approval of anti-drug laws of any kind)
Well, I understand why it might be confusing, but different provisions of the law and the Constitution apply to the different circumstances.
The state and its agents are not permitted to question defendants who have asserted the right to counsel or are represented by counsel, without counsel’s presence, once judicial proceedings have begun. Those proceedings are usually deemed to have begun once a formal arrest has been made (indictment isn’t typically relevant).
Could police question a defendant about another crime? Well, maybe, if they administered the Miranda warning for the new crime and the defendant failed, or chose not to, assert the right to silence or counsel WRT the new warning.
Other legal principles are supposed to protect citizens against being set up for crimes. That circumstance is generally referred to as “entrapment” and it applies (or it should) when police or other agents of the state use threats, fraud, flattery, harassment, etc, to induce someone to commit a crime. In the real world, it is difficult and is becoming increasingly so to succeed with an entrapment defense. The FBI has been concocting “terrorism” cases for a long time, now, and winning most of them.
Our justice system is deeply and broadly corrupt.
I didn’t ask if the police could “question” the defendant, exactly … can they send an undercover nark and try to find out other information? I mean, as far as I know, if an unindicted American happens to meet up with a nark, he’s perfectly free to ask whether you’ve ever grown pot, what kind of grow light you use, do you keep it in your basement or outside – without Mirandizing you first! Later on you get your chance to be indicted. But apparently, if you actually have been indicted, and happily you are rich enough to be able to afford bail (the need for which is yet another *clear* violation of the constitution), or unhappily you are sitting in a prison common room talking about nothing much, then they’re not allowed to ask you about that. But I’m not clear then on whether they’re not allowed to ask you about shrooms or poppies either.
Regarding the two people in a car situation, I agree it is very troubling that being in a wrong place at a wrong time can saddle you with an attempted murder beef. But that is the law-of-parties. And in some places, indeed in Texas, simply being present when a murder is committed can land you on death row.
Regarding the two people in a car situation, it is troubling that being in the wrong place at the wrong time can saddle you with an attempted murder beef. But that is the law-of-parties. And in some places, indeed in Texas, simply being present when a murder is committed could land you on death row.
When a DA states an obvious truth-
If you stopped reporting on it, there wouldn’t be a story
… we should all get on our knees and thank the great education system and Judeo-Christian values in our country that produces these true believers in justice.
Because there’s another way there wouldn’t be a story… if DA’s and prosecutors and sheriff’s stopped cheating, and more judges and reporters refused to look the other way when evidence of that cheating comes to light.
I mean, law enforcement viewing reporters who ask questions as little people who can be ignored, targeting judges who dare seek truth, and attempting to discredit public defenders who are simply working within the system and established rules requires an institutional embrace of corruption that can only begin and occur with thousands of smaller instances of corruption that become so widespread and accepted that they become the new system of rules that are followed.
In other words, if these violations were the exception rather than the rule, all the people involved from highly educated and well paid white collar types to the underpaid jailers scattered in building across the county wouldn’t be on the same page.
But they are all on the same page, so the violations can’t be exceptions or innocent mistakes.
It’s institutional.
And when even the CA state AG is involved in trying to sweep it all under the rug, the odds are that the corruption is far more widespread than county institutions.
Thanks as always Jordan.
Thank you for an outstanding article and kudos to public defender Sanders, Judge Goethals, and reporter Moxley among others. There is hope!
quote”Our criminal justice system is much better at looking forward than backward,”…”unquote
Criminal…”justice”…system..
MWAHAHAHAHAHAHAHAHAHA….HOHOHOOHOHOHOHOO…HEHEHEHEHEHEHEHEHEHEHE… HAHAHAHAHAHAHAHAHAHA ..HAHA…HAH ..HA..
I submit that label redefines the word absurd. If this article isn’t living proof that the “rule of law” is a fucking myth…I don’t know what would. Moreover.. the term “law enforcement” should go down as numero uno in the annuls of Great Moments in Incredulous. However, this is only one county in a nation full of corrupt beyond belief …. criminal ..justice ..systems. In reality…the ENTIRE system is corrupt from the top of the DOJ to every one horse town Sheriff/court in America.
ps.. Dear Ms. Smith…if you want to investigate corruption.. try digging into the Sacramento County Child Support DA/Court. I submit, if you don’t get killed, and dig back far enough, you’ll find enough corruption to write enough books to last you a life time. I know. I fought them. If ever the term “legal thieves” applied to a systemic breach of public trust in a legal system..it is the Child Support System. I also suggest you start by investigating the “welfare pool”, and how that system is gamed. However, I warn you.. they will…well..let’s just say they have “extreme prejudice” on their team.
Santa Clara County Dept. of Child Support Services-
shows up to court and bears witness to testimony by the petitioner that she isn’t following court orders. The Commissioner acknowledges the criminal contempt of court order conduct by telling the petitioner she will spend 5 days in jail per violation and she will lose custody of the child that she was there demanding support for. The court and the Dept of Child Support Services attorneys did nothing more, not a god damn thing more.
Except, they raised the child support obligation amount the respondent had to pay.
The very same court and Dept of Child Support Attorneys issued a $25,000 arrest warrant for the respondent when he couldn’t pay the child support due to loss of job.
The respondent was arrested and spent 5 days in jail and is still fighting his unconstitutional arrest and jailing.
Every person that works in the Dept of Child Support system should be shot! They don’t give a shit about the kids for which they claim to be working for. They love screwing people! I would love to shoot them one by one!
Thanks for that outstanding article. I live in OC and have passing familiarity with the “culture” you describe. Your painstaking documentation of how that manifests as massive corruption, is painful and disturbing to read.