Archive for October 20th, 2015


no stinking badges

Prosecutors who bend and break the rules to win a conviction almost never face any punishment. But even given lax controls nationwide, the blatant and systemic misconduct in the Orange County CA district attorney’s office stands out. In a scheme that may go back as far as 30 years, prosecutors and the county sheriff’s department have elicited illegal jailhouse confessions, failed to turn over evidence that is favorable to defendants, and lied repeatedly in court about what they did.

These unconstitutional abuses are all the more troubling because Orange County is not some corrupt backwater with one rogue prosecutor. With more than three million residents, the county itself is more populous than nearly half the states in the country. Its district attorney’s office employs 250 prosecutors.

30wed2web-master315In March, county Superior Court Judge Thomas Goethals took the extraordinary step of ejecting the entire county DA’s office—all 250 prosecutors—from a high-profile mass murder case after allegations of widespread misconduct surfaced. Goethals cited misleading or false testimony from sheriff’s deputies about jailhouse informants and the failure of prosecutors to turn over evidence. He said prosecutors couldn’t ensure a fair trial in the penalty phase of the trial of a confessed mass murderer.

The case involved a 2011 mass shooting in which eight people were killed by a man named Scott Dekraai. Dekraai pleaded guilty in 2014, and a jury will consider whether to sentence him to death or life in prison. In early 2014, Dekraai’s public defender, Fred Ospino, filed a 505-page motion detailing illegal and unconstitutional acts by prosecutors and the sheriff’s department, arguing that this record should take the death penalty off the table. Among other things, the defense argued, deputies intentionally placed informants in cells next to defendants facing trial, including Dekraai, and hid that fact.

The informants, some of whom faced life sentences for their own crimes, were promised reduced sentences or cash payouts in exchange for drawing out confessions or other incriminating evidence from the defendants. This practice is prohibited once someone has been charged with a crime. Even when using an informant is allowed, defendants and judges must be told of the arrangement. That did not happen in Orange County. As Dekraai’s defense lawyer discovered, the sheriff’s department kept secret a computer file showing where jailhouse informants were placed that went back decades. The prosecutor’s office kept separate files of data on informants and their deals. Some of the informants have helped law enforcement repeatedly in exchange for favors, a fact that is highly relevant in weighing their credibility.

The debacle in Orange County is notable for its sheer size and impact—already, some murder convictions have been thrown out while other prosecutions have fallen apart—but such misconduct is an all-too-familiar scenario when prosecutors value winning above justice. Alex Kozinski, a federal appeals court judge in San Francisco, has written that the withholding of exculpatory evidence has reached “epidemic” levels, and that the only way to stop it is for judges to hold prosecutors accountable.

nle5q8-b88359422zOrange County District Attorney Tony Rackauckas has admitted in past interviews that his prosecutors made some mistakes in handing over evidence and using informants, but claimed that none had done so intentionally. Oh sure.

Rackauckas joined the DA’s office in 1972 as a deputy district attorney. Over the next 15 years, he conducted over 40 homicide jury trials and over 100 felony jury trials including rape, robbery, arson, assault, burglary, fraud, narcotics, and child molestation. Rackauckas is known as “a tough, no-nonsense DA” and was elected DA in 1998. He has since been re-elected four times: in 2002, 2006, 2010, and 2014.

So he’s had ample time to set the tone for his administration, which clearly values winning over justice.

nue5g5-b88507671zIn September Rackauckas got one of his underlings to fall on his sword for the systemic abuses. Deputy District Attorney Erik Petersen, once a rising star in gang enforcement and Mexican Mafia prosecutions, resigned effective September 18. Petersen was the deputy district attorney who prosecuted three of the four criminal cases that fell apart because of the misuse of jailhouse informants and the withholding of evidence. He starts a new job this month as an assistant US attorney in Nebraska. Will the Rackauckas ethic spread with him?

Two weeks ago, Governor Jerry Brown signed a new law, prompted by the Orange County scandal, that cracks down on prosecutors who willfully withhold evidence from defense attorneys and courts.

The law also requires judges to report offending prosecutors to the state bar, which licenses attorneys. The bill was not widely supported by Orange County legislators, though DA Rackauckas has said he supported it. The legislation was sponsored by Assemblywoman Shirley Weber, D-San Diego, a professor at San Diego State University whose late husband was a judge.

She said the legislation is important because it forces judges to hold prosecutors accountable. “I’ve always had as a priority this whole issue of social justice,” Weber said. “When it doesn’t work, it has the tendency to do a lot of harm.”

Rackauckas makes a lot of the fact that his maternal grandparents immigrated from Sonora, Mexico and that he spoke Spanish for the first three years of his life. I think this is does a disservice to Hispanic people everywhere. I am reminded that Rackauckas seems to have the same cavalier attitude to the law as the bandito “Gold Hat” in the film, The Treasure of Sierra Madre.

The character played by Humphrey Bogart asks: “If you are the police, where are your badges?”

Gold Hat responds sneeringly: “Badges? We ain’t got no badges! We don’t need no badges! I don’t have to show you any stinking badges!”



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