Jail informants under fire in Orange County

Mar 1, 2014, 4:50 PM

SANTA ANA, Calif. (AP) – Attorney Scott Sanders was defending two high-profile death penalty cases in California when he realized evidence in both cases was coming from the same jailhouse snitch. He wondered if it could be more than a coincidence.

After poring over thousands of pages of documents and listening to hundreds of hours of recordings, the assistant public defender in Orange County concluded that prosecutors had tried to cover up a jail informant program that violates inmates’ constitutional rights.

The allegations leveled in a 505-page motion have created a buzz among defense lawyers now pondering whether their clients were improperly approached by informants recruited by law enforcement. In another motion filed with the court, Sanders wrote that “hundreds to thousands of cases” should be reviewed to ensure defendants were not deprived of vital evidence.

“If true, the systematic intentional violation of constitutional rights is breathtaking,” said Kate Corrigan, former president of the criminal defense bar in Southern California’s Orange County.

The district attorney’s office hasn’t formally responded to the lengthy motion to strike the death penalty in the case of a man charged in the murders of eight people at a Seal Beach hair salon, but a judge has scheduled a hearing to get to the bottom of Sanders’ allegations.

“Obviously these are serious allegations,” Assistant District Attorney Dan Wagner said outside court after a recent hearing. “Our prosecution team is looking forward to showing it is unfounded.”

The controversy over the use and credibility of jailhouse informants is hardly new in courts across the country.

Inmate informants who have a strong motivation to please authorities in a bid to improve their lot are often accused of lying. While they can provide helpful testimony for the prosecution, there are strict rules about how they can be used to gather information.

Just as suspects can’t be questioned if they’ve requested a lawyer, informants can’t be used to interrogate them, said Lawrence Rosenthal, a law professor at Chapman University. Snitches can offer information to authorities, but they can’t actively question suspects who have lawyers or have requested legal representation.

“A prudent prosecutor, if they use these tactics, will be very careful to have the informant be entirely passive,” Rosenthal said, adding that authorities often bug suspects’ cells once they know they’re talking about the crime. “Sometimes these guys are more aggressive than they’re supposed to be. Then the whole thing can blow up in a welter of incriminations.”

Sanders’ clients both had lawyers when they were approached by the informant, named only as “Inmate F” in the documents, who faced a life sentence after a third strike conviction in 2009.

In the case of Scott Dekraai, 44, charged with the murders of his hair dresser ex-wife and seven others in 2011, Sanders has also asked for the district attorney’s office to be removed from the case.

Sanders has acknowledged that the evidence of Dekraai’s guilt is overwhelming since he surrendered just a few blocks from the rampage and gave police a complete confession.

If Dekraai is convicted and the case moves to a death penalty phase, prosecutors plan to play recordings of him bragging about the crime to his fellow inmate.

“The statements are the most revealing and candid statements made by the defendant,” Wagner, the prosecutor, told reporters after a recent court hearing. “I think there’s always a need to show the jury the man as he really is.”

But Sanders said the evidence was illegally obtained since the inmate eliciting his responses was a veteran informant who had been placed next to Dekraai’s cell under a program run by sheriff’s deputies and used by prosecutors.

Sanders said the same inmate was also improperly used to get evidence against Daniel Wozniak, 29, a stage actor charged with beheading and dismembering his neighbor and killing one of the victim’s friends.

“In essence, the jails have become a cesspool for violations of inmates’ right to counsel,” Sanders wrote.

Lt. Jeff Hallock, a spokesman for the Orange County Sheriff’s Department, declined to comment on the allegations.

Judge Thomas M. Goethals, a former prosecutor, ordered a hearing in the Dekraai case that is expected to take place in March.

Sanders also alleges that prosecutors failed to turn over relevant evidence about the use of informants in Dekraai’s case and others, including a series of charges filed in a crackdown on prison gangs known as Operation Black Flag.

The allegations come as the district attorney has recently encountered serious problems with evidence in court.

During the preliminary hearing of two women charged with fatally beating a woman outside a Santa Ana bar, an undercover police officer acknowledged she had posed as an inmate to get information from one of the suspects after she had requested a lawyer.

In a separate gang assault case, Goethals tentatively ruled that the prosecutor withheld evidence that raises questions about the credibility of a paid informant, said Rudy Loewenstein, the defense attorney on that case.

“There’s a certain level of trust that has to exist between the prosecution and defense,” Loewenstein said. “That trust has been broken.”

(Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)

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Jail informants under fire in Orange County