Overcoming scandal: For new Orange County DA and Sheriff, the task is big, the critics are antsy

District Attorney Todd Spitzer compares his new job, leading and repairing Orange County’s troubled justice system, to shaking up an Etch A Sketch.

The plan, he says, is to wind up with a clean slate. When he gets that, he says he’ll re-draw the DA’s office to de-emphasize what critics describe as the “win-at-all-costs” mentality of the old regime.

New Orange County Sheriff Don Barnes sees his challenge differently. He believes — and repeated in his campaign messages — that any problems within his department were caused by a few rogue operators. The bulk of the 2,800-member agency, he has said, already forms a strong foundation that will be even better as a result of recent adversity.

Regardless, the arrival of both men — sworn in last week during well attended, separate ceremonies — signals the potential for a ew era in Orange County law enforcement.

Both the sheriff’s department and the district attorney’s office remain under federal and state investigation following years of allegations and judicial findings of cheating by prosecutors and police, who misused jailhouse informants in ways that led to reduced sentences for the county’s worst mass murderer and several others.

Now, local and national critics want to see if the new leadership will result in a new definition of justice in Orange County.

No grace period

In the same week that Spitzer and Barnes were sworn in, legal scholars and civil rights activists voiced concern that not enough is happening to punish the prosecutorial cheaters and identify defendants whose cases were unfairly affected.

“People across the country are watching. And they’re concerned because after two years of running (for the DA’s office) on the informant scandal, Spitzer doesn’t appear to have a plan,” said Laura Fernandez, senior Liman fellow in residence at Yale Law School and an expert on prosecutorial misconduct.

“How is he going to make sure this doesn’t happen again? How is he going to meaningfully address – and redress – past injustices? And how does he intend to hold wrongdoers accountable?” Fernandez said.

“The time has come to move from generalities and platitudes about not cheating to concrete mechanisms for reform and accountability.”

Patrick Dixon, legal counsel to Spitzer, said the new administration takes such concerns seriously, but he added: “We just got here.”

“Give us some time to get to work. It takes a big ship a while to turn around,” Dixon said. “We’re going to do it.”

Spitzer has talked, in interviews and campaign speeches, about some major changes. He might dismantle the DNA operation assembled by his predecessor, Tony Rackauckas. He also wants to end the department’s emphasis on conviction rates.

Both steps are viewed by some as forward-minded, but critics also want Spitzer to look back. They hope the county soon will identify cases that benefited from the misuse of informants and the withholding of evidence, and give those defendants new chances for justice.

Assistant Public Defender Scott Sanders, who uncovered the snitch scandal in 2014 and used it as a tool to help admitted mass killer Scott Dekraai avoid the death sentence, wants heads to roll.

Sanders is frustrated that the state attorney general’s office has taken no action since launching an investigation in 2016 into allegations that three local deputies — who helped connect jailhouse informants with key defendants — lied while testifying in the informant scandal.

Several deputies who worked with informants, and who were accused by the judge in the Dekraai case of misleading that court about the existence of informant records in the local jails, no longer testify in court. That’s true even when their testimony might help the prosecution; deputies said their testimony might incriminate them.

Sanders ticked off three things he’d like to see happen in this new era: First, charge those deputies who he (and others) believes lied; second, fire or at least remove from management positions any local prosecutors who concealed evidence or lied during the scandal; and third, turn over evidence of misconduct by deputies as well as the DA’s informant file.

In one of his first moves as district attorney, Spitzer reassigned Assistant DA Dan Wagner — who was in charge of the mishandled Dekraai case — from head of the agency’s elite homicide unit, to head of the office at the Fullerton courthouse, according to an internal memo. Generally, top cases are handled by prosecutors from the Santa Ana headquarters.

Different vision

Sanders has little confidence the sheriff’s department will police itself without pressure from the district attorney’s office.

Barnes has said in an interview that he demands his deputies to follow the rules. And he can’t start a promised internal investigation of the snitch scandal until after the state concludes its probe.

But he also has said he’ll stand up for deputies.

“You will have my support when you perform within the scope of your duties and in accordance with your training,” Barnes told deputies and department supervisors during his swearing-in ceremony on Monday.

“When critics second guess your actions, your sheriff will be the first to come to your defense.”

Last week, two sheriff supervisors once involved in the handling of informants in the jail were promoted to assistant sheriff. One of those who got a promotion, now Assistant Sheriff Jon Briggs, previously led the Special Handling Unit deputies who worked most closely with informants. Briggs also was accused in a court motion of lying under oath about the department’s use of informants.

Sanders said the promotions speak volumes about how Barnes views the importance of the snitch scandal.

Somil Trivedi, a Washington D.C.-based attorney for the national office of the American Civil Liberties Union, agrees with Sanders that Orange County’s new leaders need to implement significant changes in their respective shops. And he agrees with other critics that the process should include proactively redressing inmates who were convicted in trials touched by illegal informant practices.

Trivedi is one of the ACLU lawyers working on its lawsuit against Orange County regarding informant practices. He has called on the sheriff to create a detailed database that will name jail informants, detail how and when they’re used, and list what they’re promised for their cooperation. He also wants the database to list all the cases in which each informant has participated, and he wants the sheriff and district attorney to commit to disclosing those records to defense lawyers in applicable cases – something that local prosecutors have failed to do in the past, resulting in constitutional violations.

Sheriff’s officials noted this week that the department already overhauled its record-keeping on informants, creating a system in April that documents most, if not all, of what Trivedi has requested. A sheriff’s spokeswoman said the department also has provided the district attorney all of the special logs it kept on its past use of informants, meaning prosecutors now can, if they wish, identify whether more defendants might have cause to return to court.

“Since we were made aware of the issue, we have not only done what was required to correct it, but have implemented policy, training and employee expectations that have resulted in what I believe to be an industry best practice to handle information within a custody setting,” Barnes said in a prepared statement to the Orange County Register. “We have also been fully cooperative with all investigations into the matter.”

But sheriff’s officials say they do not have to relinquish the full informant database to prosecutors or defense attorneys. Instead, sheriff’s deputies are required only to tell the district attorney’s office what its informant files say — a practice Trivedi said could deny defendants information in ways that are unfair or even illegal.

“The information we’re requesting gets to the question of whether the informant is credible, and the defense has a constitutional right to know that,” Trivedi said.

Next steps

Trivedi said the ACLU has been pleased, so far, with Spitzer’s willingness to engage on the topic of informant practices and disclosures.

Following the election, Spitzer initiated discussions with ACLU lawyers, meeting with the group to discuss issues of concern and even to initiate preliminary settlement talks. Trivedi said his organization had no such meetings with the previous district attorney.

“(Spitzer) said, ‘I want to put this behind us.’ We very much appreciated his openness and believe he’s operating in good faith,” Trivedi said.

“But the devil is going to be in the details, and how much he’s willing to commit to making changes. If folks fall out of line, he needs to be serious about voluntary discipline.”

But Trivedi indicated the possibility of a settlement in the ACLU’s case against the county is slim unless the sheriff also is willing to come to the table, something that might prove difficult.

Barnes has expressed distrust of the ACLU, saying the organization files lawsuits to get money that, in turn, helps it fund its operations. He also said the ACLU’s investigations of jails is intended to spur litigation.

“I don’t know how inviting them in and collaborating with the ACLU is going to prevent us from writing checks, but I see that as a pathway to start writing big checks when you’ve aligned yourself with the ACLU,” Barnes said in an October campaign speech.

“That’s the sole purpose of the American Civil Liberties Union… to sue law enforcement, deep pockets. And that’s how they make their money. So it’s a little naive to say, ‘I’ve talked with the ACLU. We’re going to prevent things from happening.’ That’s not how the ACLU (operates).”

Barnes’ former boss, Sheriff Sandra Hutchens, also was critical of the ACLU.

In June 2017, the ACLU of Southern California released a 104-page report about conditions in Orange County jails documented complaints from inmates of excessive force by deputies and of unhealthy living conditions. Then Sheriff Hutchens shot back by saying the ACLU’s findings were “inaccurate or purposely distorted.” She also claimed the report was based on dubious accounts from only a fraction of the jail’s inmate population.

Daisy Ramirez, the ACLU’s Jails Project coordinator for Orange County, said Barnes’ campaign rhetoric leads her to believe his response to jail problems will be similar to Hutchens’.

“The problems persist,” Ramirez said. “But on the campaign trail, he said the issues didn’t exist, or things were being fabricated.”

With the nation watching, Spitzer and Barnes have a chance to recast the reputation of Orange County’s justice system.

Said Miriam Krinsky, a former federal prosecutor and executive director of the national Fair And Just Prosecution reform group, “There’s a real opportunity to press the reset button.”