Orange County sheriff: There’s no jailhouse informant program, but some deputies have misbehaved – ABA Journal

Criminal Justice

Posted Jul 06, 2017 05:01 pm CDT

By Lorelei Laird

The elected sheriff of Orange County, California, testified under oath Wednesday that although some of her deputies have violated defendants constitutional rights, there is no organized jailhouse informant program. The Orange County Register, Los Angeles Times and Voice of OC have stories.

The testimony was the first time a court heard from Sheriff Sandra Hutchens on charges that her deputies have for years used jailhouse informants to get incriminating statements from defendants. When the defendant has a lawyer, use of a confidential informant violates the defendants right to counsel under a 1960s U.S. Supreme Court decision called Massiah v. United States.

Defense attorney Scott Sanders, who represents a high-profile murder defendant, has alleged in detailed court filings that deputies have been using informants for years, perhaps decades. He also alleges that Orange County prosecutors have frequently failed to turn over evidence showing the use of informants, which would violate the defendants rights under Brady v. Maryland.

Hutchens said Wednesday that the informant allegations have been embarrassing, but that only a few deputies broke the rules by planting informants next to targeted defendants. She pointed to a few deputies who are under criminal investigation, some of whom have invoked their Fifth Amendment rights when called to testify. (No prosecutors have been professionally disciplined or criminally charged in the matter, although one resigned and moved out of state after his testimony was contradicted by a sitting judge.)

A grand jury report issued in June echoes Hutchenss position on the subject, saying the wrongdoing was limited to a few rogue deputies. That report contradicts a decision of a California appeals courtwhich called the problems systemicand testimony of one former deputy and one current deputy, both of whom said their supervisors knew about the informant program, the OC Weekly reported.

Judge Thomas Goethals called the hearing to look into the existence and whereabouts of jailhouse informant records. As the Los Angeles Times noted, the Sheriffs Department has repeatedly said it had turned over everything, and then found more records. The most recent set of documents was turned over this yeareven though Goethals had ordered all evidence turned over in 2013.

We could have done a better job of responding to discovery requests, Hutchens said.

At the hearing, Sanders, an Orange County public defender, cited multiple internal memos showing that cultivating informants was part of jailers duties, and that sergeants and lieutenants commended these deputies for their work. Hutchens said she hadnt seen any of those documents and that deputies may have used the word informant broadly. She apologized for her departments inability to find the requested documents.

The testimony came in the case of Scott Dekraai, who murdered eight people and wounded a ninth in 2011 when he shot up the beauty salon where his ex-wife worked. Dekraai confessed the same day and has pleaded guilty to the crime, but the Sheriffs Department used an informant anyway, allegedly out of concern that he might plead insanity. The ABA Journal reported on the case in 2016.

Allegations related to the use of informants caused Goethals to take the entire Orange County District Attorneys office off the caseit is now being prosecuted by California Attorney Generals officeand has stymied the case at the penalty phase. Goethals has said he may rule out the death penalty if he finds evidence of substantial wrongdoing.

Hutchens announced last week that she will not seek re-election in 2018, a decision she said was not related to the informant matter.