'Failure of leadership' at the Orange County D.A.'s office led to informant issues, report says

Jan. 4, 2016 11:35 PM PT

A “failure of leadership” at the Orange County district attorney’s office led to repeated problems with the handling of jailhouse informants and helped erode confidence in criminal cases that rely on their testimony, according to a report made public Monday.

The findings, presented by legal experts on a special committee established by Dist. Atty. Tony Rackauckas, described the office as functioning “as a ship without a rudder” and faulted some of its prosecutors for adopting a “win-at-all-costs mentality.”

The committee called on the office to improve oversight of cases and promote prosecutors who place justice ahead of legal victories.

Within the office, there is a “palpable hesitation” to bring negative information to Rackauckas, who was unaware of “many of the problematic issues that led to the jailhouse informant controversy,” the report said. The report also highlighted problems in the Orange County Sheriff’s Department, where the committee concluded that deputies in some jail units lacked training on state and federal laws about using inmate informants.

The panel’s findings come amid an ever-widening scandal in which prosecutors and law enforcement officers have been accused of misusing inmate informants and failing to disclose key evidence to defendants.

Last year, a judge disqualified the district attorney’s office from the case of a man who fatally shot eight people at a Seal Beach salon in 2011.

The committee noted that it did not have the power to subpoena records or to compel witnesses to testify under oath. Rackauckas, the committee said, should seek an inquiry “to demonstrate transparency and foster confidence in the Orange County criminal justice system.”

During a news conference Monday in Santa Ana, Rackauckas oscillated between contrite and dismissive as he responded to the report, promising to accept many of the committee’s findings while also seeming to downplay the scope of the informant scandal.

Flanked by most of his senior staff, Rackauckas said the agency had already instituted some reforms and planned to adopt others proposed by the committee, including the creation of a chief ethics officer position and the appointment of an outside monitor to ensure his office complies with the report’s 10 recommendations.

He said he had created a panel to oversee the use of jailhouse informants and would add an independent member, as suggested in the report. He added that his office would also set up a dedicated team to review the integrity of convictions and remedy mistakes by prosecutors.

But the district attorney also noted that jailhouse informants are involved in a tiny fraction of the number of felony cases prosecuted by his office each year. In the more than 8,600 felony cases filed in 2015, jailhouse informants were used in only three cases, the office said.

Rackauckas said that no one in his office had been disciplined as a result of the informant controversy and that he did not believe any of the prosecutors who failed to disclose information to defendants acted intentionally.

“You don’t punish someone for making a mistake,” he said.

In response to the committee’s call for an independent investigation, Rackauckas released a letter he sent to U.S. Atty. Gen. Loretta Lynch requesting an outside review.

Rackauckas denied that there was a “criminal conspiracy” within his office concerning informants but said he simply wanted to silence critics.

“There’s really no reason for me to ask for an investigation except to satisfy the naysayers out there that there is nothing to investigate,” he said.

The committee was created in July amid mounting criticism about the use of inmate informants. The issue was first exposed in the prosecution of Scott Dekraai, who admitted carrying out the mass shooting in Seal Beach.

The legal wrangling involved how Dekraai came to occupy a jail cell next to a prolific jailhouse informant, who said Dekraai made incriminating statements to him.

Prosecutors and jailers said it was a coincidence, but Dekraai’s attorney insisted it was part of a widespread operation to elicit incriminating remarks from defendants who were represented by lawyers, a violation of their rights.

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Superior Court Judge Thomas Goethals removed the district attorney’s office from the case, saying the agency failed to disclose evidence about the informant.

Rackauckas said it “stings” to see the informant scandal described in Monday’s report as a “failure of leadership” but dismissed the idea that he had mismanaged the office. He said he had no plans to resign.

He also rejected the suggestion that prosecutors adopted a “win at all costs” mentality, saying that staff promotions were based on a wide range of merits beyond trial victories.

“The duty of the district attorney’s office is to do justice,” he said.

Rudy Loewenstein, a defense attorney who has attacked the jail informant program in court, said it was significant that the committee called for a full-fledged investigation into how Rackauckas’ office has handled jail informants.

“It’s pretty startling to see that the district attorney’s own hand-picked committee is making such a recommendation and has such sharp criticism,” Loewenstein said. “I can’t believe he’s happy with that report. Calling it a rudderless ship? It did everything but call for his resignation.”

Loewenstein, who worked as a deputy district attorney for more than four years before beginning nearly three decades in private practice, said the report highlighted an overly aggressive attitude that the legal community encounters in some prosecutors.

“Be open and honest and you don’t have anything to worry about,” Loewenstein said. “You can’t let winning get in the way of doing the right thing.”

The committee included retired Orange County Superior Court Judge James Smith, former top L.A prosecutor Patrick Dixon, former Orange County Bar Assn. President Robert Gerard and legal ethics expert Blithe Leece. Loyola law professor Laurie Levenson advised the committee on various ethics issues. Committee members declined to individually comment but issued a statement saying the report speaks for itself.

Among the committee’s recommendations was that Rackauckas eliminate his chief of staff position, currently held by Susan Kang Schroeder, and appoint an assistant district attorney to lead the media relations unit.

The committee said members of the district attorney’s office were concerned by “the toxic and combative relationship” between the office and the media. That hostile relationship, coupled with a lack of transparency, led to the jailhouse informant issue becoming “greatly overblown,” office members told the panel.

Rackauckas dismissed the recommendation outright, and Schroeder defended her handling of the media during the controversy.

“I think it’s easy to blame me for bad press, but the media was going to write those stories regardless,” she said in an interview. “I’ve been a proponent for releasing more information, not less.”

For more news, follow @matthjourno and @JamesQueallyLAT

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