The Orange County Sheriff’s Department and District Attorney’s Office has come under fire recently due to allegations of an illegal jailhouse informant program.

Assistant Public Defender Scott L. Sanders, in his defense of Scott Dekraai, has repeatedly alleged that the sheriff’s department has conducted a decades-long program to elicit confessions from defendants. Superior Court Judge Thomas Goethals expressed his frustration with the Sheriff’s Department and prosecutors, going so far as to say he would dismiss the death penalty if he concludes that Dekraai, who has been awaiting a death penalty trial after pleading guilty to the murder of eight people at a Seal Beach hair salon in 2011, will not receive a fair trial.¹

Last Wednesday, Orange County Sheriff Sandra Hutchens testified in an evidentiary hearing that, while a “few” deputies may have improperly used informants, she did not believe there had been a deliberate attempt by the department to withhold this information from defendants and their counsel. Assistant Orange County Sheriff Adam Powell testified the next day that these deputies were doing what their supervisors instructed or, at the very least, expected them to do. Powell told Judge Goethals: “During that period of time, we had a failed system. We had no policy and worse protocols.”²

Sanders’ allegations against the Orange County Sheriff’s Department and District Attorney’s Office in various cases, including Dekraai’s, has sparked a continuing controversy in Orange County and led Judge Goethals to replace the District Attorney with the California Attorney General’s Office as Dekraai’s prosecutor in November last year.

The use of jailhouse informants poses serious constitutional rights violations, in violation of the Supreme Court’s Brady v. Maryland and Massiah v. United States rulings. Brady codified the rights of defendants to learn about all exculpatory information, including whether informants were expecting any benefits for helping³. The Court in Massiah ruled that surreptitious interrogations of defendants who are, or expect to be, represented, violated their 6th Amendment right to counsel⁴. The withholding of information surrounding the use of informants is not the only troubling aspect; it is Orange County Sheriff’s department’s use of the informants on represented defendants that could potentially be violating the constitutional rights of defendants in jailhouses all over Orange County.

We will continue to monitor and provide updates as they become available.

¹Meghann M. Cuniff, OC Sheriff Testifies in Death Case, DAILY JOURNAL, July 6, 2017, at 1.
²Don Debenedictis, Assistant Sheriff in Orange County Says the System Failed, COURTHOUSE NEWS SERVICE, July 7, 2017, https://www.courthousenews.com/asst-sheriff-orange-county-says-system-failed/
³Brady v. Maryland, 373 U.S. 83 (1963).
⁴Massiah v. United States, 377 U.S. 201 (1963).