Outside panel to review OC DA's use of jailhouse informants

An independent panel of experts will review how Orange County prosecutors use jailhouse informants and make recommendations for policy changes after a state judge removed the district attorney’s office from a mass murder case earlier this year amid allegations of misconduct regarding informants.

The Orange County District Attorney’s office announced Monday it had formed an external committee staffed by retired judges and lawyers to examine the agency’s polices for using jailhouse informants in criminal cases.

In March, Orange County Superior Court Judge Thomas Goethals removed the district attorney's office from the Scott Dekraai murder trial after finding prosecutors failed to turn over jail records about informants to Dekraai's public defender.

Dekraai, 45, pleaded guilty last year to killing eight people at the Salon Meritage hair boutique in 2011. 

It’s not illegal for law enforcement to use informants or jailhouse snitches. But they must act as a listening post and not elicit statements or question an inmate once he has exercised his right to an attorney.

A jailhouse informant recorded conversations with Dekraai about the killings, but after Dekraai had been charged and had obtained legal representation.

"Once a defendant has been charged with a crime they have a right to counsel and the government cannot sneak around that right to counsel by getting an informant to elicit information," said Alexandra Natapoff, an expert on informants and professor at Loyola Law School.

After more than two years of investigating, Dekraai’s public defender found other instances in which the rules on informants were violated, and he uncovered records on how the Orange County Sheriff’s Department uses and moves informants inside the jail.

The state attorney general’s office will prosecute Dekraai’s sentencing phase, set to begin in September. He is eligible for the death penalty.

Meanwhile, other criminal cases have unraveled because of the jailhouse informant scandal.

Leonel Vega was convicted in 2010 of a murder for a gang shooting and sentenced to life in prison, but after documents and testimony later emerged about the illegal use of jailhouse informants, prosecutors dismissed the murder charges and Vega pleaded guilty to lesser manslaughter charges. He's now serving a 15 years sentence with the possibility of getting out of prison in 2019.

"I have enormous respect for those who would give their time to try to improve the situation moving forward," said Orange County Assistant Public Defender Scott Sanders, who represents Dekraai. "But of course, there remains the enormous problem of addressing decades of potential informant related misconduct and evidence concealment, which is beyond the scope of this committee’s review."

The DA's office said in a statement that it has already made some changes to avoid similar abuses in the future, including updating its informant policy manual and creating an internal committee headed by District Attorney Tony Rackauckas to approve or disapprove the use of jailhouse informants.

In addition to those moves, "I think it’s important to have an objective and expert external committee with different points of view, to thoroughly review and analyze the issues regarding the use of in-custody informants so we can improve our procedures and avoid any future mistakes," Rackauckas said in the statement.

The committee will issue a report by the end of this year, according to the DA's office. 

"I want everything that we do to be above board and fair," Rackauckas told KPCC. "I want to make sure that the court, the defense bar, the individual defendant and the public have faith - that although we're aggressively prosecuting cases - we're doing it in a fair way." 

Natapoff said informants are high-risk witnesses because of the temptations and incentives for informants to lie or manipulate that could result in constitutional violations of a defendant's rights.

"If you are going to use them, then you need to do it in a way that is strictly regulated, transparent, careful and with law enforcement keeping front and center their obligation of constitutional disclosure and ethics," she said.

The new Informant Policies and Practices Evaluation Committee includes retired Orange County Superior Court Judge Jim Smith, retired Los Angeles County Assistant District Attorney Patrick Dixon, former Orange County Bar Association President Robert Gerard, and Blithe Leece, an attorney who specializes in ethics law and professional responsibility. Legal scholar and ethics expert Professor Laurie Levenson of Loyola Law School will serve as an advisor.

A Los Angeles Times investigation in 1988 revealed how a jailhouse informant in the L.A. County jail would fabricate confessions about other inmates. It led to a grand jury investigation and report that offered suggestions on how the L.A. District Attorney’s office should change the way it used informants. 

Natapoff said the L.A. District Attorney’s office created an internal supervisory committee that reviews whether a prosecutor can use a jailhouse informant. The office maintains a registry of informants who have been used, benefits they've received and the information informants have given.  

The reforms and checks put in place after the grand jury investigation limited how often L.A. prosecutors used jailhouse informants in criminal cases, she said.  

Rackauckas said the same thing could happen in Orange County. 

"I would expect there to be a substantial cut back on the use of informants," he said.