Court filing raises new questions about Orange County’s handling of informant scandal

A court filing made public Thursday has raised new questions about the way Orange County law enforcement leaders reviewed allegations of deputy misconduct during the jailhouse informant scandal, opening the door for challenges to a number of criminal cases filed in the last three years.

The discovery motion, filed in a drug possession case by Assistant Public Defender Scott Sanders, seeks a wide array of documents related to the county’s handling of law enforcement officers whose honesty has been questioned. The move is yet more fallout from a so-called snitch scandal that centered on allegations that deputies in a special handling unit housed jailhouse informants near high-profile defendants to obtain confessions or other incriminating statements without their attorneys being present, violating their rights.

Sanders has previously claimed that deputies connected to the snitch scandal have testified in at least 146 cases in recent years without their histories being disclosed to defense attorneys.

His assertions seemed to gain some credence when Orange County Dist. Atty. Todd Spitzer recently added four deputies linked to the informant scandal to the office’s so-called Brady list, which refers to the U.S. Supreme Court ruling requiring the disclosure of potentially exculpatory evidence to a defendant, including information that might impeach a law enforcement official’s testimony.

Spitzer’s action reversed former Dist. Atty. Tony Rackauckas’ decision not to add any deputies connected to the controversy to the list.

“The time for blind trust has long ended, and the [Orange County district attorney’s office] should now be compelled to disclose what was known, by whom and when,” Sanders wrote in the 34-page filing.

The informant scandal has dogged Spitzer even though he vanquished Rackauckas in a 2018 election that largely focused on his predecessor’s alleged mishandling of the controversy.

Rackauckas sent a letter to the Sheriff’s Department in late 2018 announcing his decision not to add any deputies linked to the special unit that managed informants in the jails to the Brady list. Rackauckas did not explain his rationale in the letter, though he did say his decision was “unaffected by the [California] attorney general’s decision not to pursue criminal actions” against any Sheriff’s Department personnel.

After reviewing Rackauckas’ decision, Spitzer said his reversal stemmed from the deputies’ responses to an email sent by a Sheriff’s Department supervisor in 2016, asking whether they had knowledge of a log that documented informant movements in the jails. It was determined that the four deputies’ responses were not entirely truthful, though not outright lies, Spitzer said.

Senior prosecutors advised Rackauckas to add the deputies to the Brady list in the summer of 2018, but he ignored their recommendation, said Spitzer, who described his predecessor’s analysis as “poorly reasoned.” Spitzer declined to release any documentation of Rackauckas’ analysis, and attempts to contact Rackauckas were unsuccessful.

Law enforcement experts and Sanders maintain that reviews of potential deputy misconduct fell short. In his motion, Sanders pointed out that more than 300 deputies worked in the special handling unit at the time of the scandal, yet Rackauckas’ review focused on just 12 people.

The Orange County district attorney’s office “had never attempted to answer the key question in an authentic Brady analysis: whether deputies violated the law and/or concealed jailhouse informant related evidence while working months and years in the jail,” Sanders wrote in Thursday’s motion.

Authorities have declined to identify the deputies. Tom Dominguez, president of the union that represents Orange County sheriff’s deputies, said only one of the four remains on active duty. Two others have retired, and a third is on administrative leave, Dominguez said.

It remains unclear how many criminal cases could be affected by the deputies’ inclusion on the Brady list. The district attorney’s office is reviewing trials from February 2016, when the email was sent, and the present date, and it will notify defense attorneys if any disclosures need to be made.

Given that special handling deputies are often promoted to work in the field, Sanders said the number of cases affected could be high.

“These guys are around all the time, on the stand,” he said.

Orange County Sheriff Don Barnes cautioned Thursday that just because a deputy is added to the Brady list does not mean his or her case testimony is necessarily impeached.

“It’s not a death knell,” he said. “It just means that there’s an obligation that has to be followed.”

Robert Weisberg, professor of criminal law at Stanford University, said Brady review conducted by the district attorney’s office was inadequate, especially in the face of the informant scandal that gave rise to questions about the credibility of deputies in the first place.

“I would say that the good policies would never find it sufficient to rely on a statement from someone. ‘Oh, no, I don’t have anything,’ is not verifiable,” he said. “This policy, if you want to call it a policy, would be extremely insufficient. It’s well behind the level of rigor that many prosecutor’s offices now have.”

Spitzer acknowledged it is likely that the deputies testified in cases that have been adjudicated and that may need to be reopened. The continued fallout from decisions made by Rackauckas is frustrating but also necessary, he added.

“This inquiry is just consuming a tremendous amount of resources and time,” Spitzer said. “I don’t want to use the word ‘distraction,’ because it’s a very, very important inquiry, but do I want to get past it as soon as possible? Absolutely.”

However, Spitzer’s decision to add the deputies to the Brady list has drawn ire from other law enforcement officials. Dominguez, the union president, said the district attorney has needlessly imperiled convictions by revisiting an issue that was already settled.

Former Sheriff Sandra Hutchens “did not believe these people were being untruthful. The prior D.A. obviously did not Brady these cops,” he said. “But we have a new D.A. come in, and his opinion is far different from these two?”

The four deputies were given the opportunity to provide evidence challenging their inclusion on the list, but none have done so in the month since Spitzer’s announcement, said Kimberly Edds, public information officer for the Orange County district attorney’s office.

Weisberg said the apparent weakness of the county’s Brady reviews, coupled with the weakened credibility of the county’s top law enforcement agencies in the wake of the snitch scandal, have opened the door for Sanders to win his motion.

“There’s a very good argument … that they have to do a much better job than they did,” he said. “They have to have some independent review of files. It’s not enough to just ask the relevant deputies if you have anything.”