Scott Sanders was just doing his job, as the Santa Ana assistant public defender representing accused mass murderer Scott Dekraai before Judge Thomas Goethals. But what he found not only compelled the judge to throw the entire friggin’ DA’s office off the case, but may have opened up a can of worms no one could have imagined.

Via Dahlia Lithwick at Slate:

After literally years of alleged misconduct involving jailhouses informants, as well as prosecutors’ repeated failures to turn over exculpatory material, Judge Goethals determined in March that the office can simply no longer work on the case of mass murderer Scott Dekraai, who pleaded guilty last year to killing his ex-wife and seven others at a beauty salon in 2011.

This is the sort of epiphany that brings tears of joy to the eyes of conspiracy theorists everywhere, not to mention those who decry the buying and selling of testimony by jailhouse snitches.

One issue in the Dekraai case is whether deputies deliberately placed him near a prized informant to elicit illegal confessions. While preparing for the penalty phase of the trial, Santa Ana assistant public defender Scott Sanders, who is defending Dekraai, discovered that a jailhouse informant who had produced damning evidence about his client had done the same thing in another case Sanders was handling. After further investigation, Sanders claimed that a branch of the Orange County Sheriff’s Department called “special handling” would deliberately place jailhouse snitches in cells next to high-value inmates awaiting trials, with instructions to collect confessions, a practice that is unconstitutional.

They can’t lawfully do that. When the snitch becomes an agent of the prosecution, he can’t be used to circumvent the right to counsel and obtain evidence against a defendant. That the OC sheriff had a special unit to do just that is, well, totally wrong.

Together with his law clerks, Sanders spent a year unearthing and then reconstructing a tranche of 60,000 pages of records indicating that the country sheriff’s office routinely used and coordinated with those informants to get around the constitutional prohibition on eliciting incriminating statements from defendants who had lawyered up and should not have been interrogated. The sheriff’s department has admitted that mistakes were made.

Mistakes? Is that what they call it in the OC when they get caught doing the dirty?  And the next person who whines that public defenders never do any heavy lifting gets 60k pages dumped on their genitalia.  And things got worse from there.

The DA’s office claims there was nothing coordinated or systemic going on. But Judge Goethals disagreed, finding that the new revelations called into question the integrity of the entire Orange County District Attorney’s office.

In an explosive moment following a hearing last year, Sanders revealed that the Orange County Sheriffs Department has maintained a massive, secret, 25-year-old computerized record-keeping system called TRED. These TRED documents were full of potentially exculpatory data, but the agency officials had systematically refused to turn any of them over, or even acknowledge their very existence, to defense counsel.

Finally, a government office demonstrates a proficiency with computers, but its use was to conceal exculpatory data from defendants.  As Judge Goethals found:

“It is now apparent that the discovery situation in this case is far worse than the court previously realized. In fact, a wealth of potentially relevant discovery material—an entire computerized data base built and maintained by the Orange County Sheriff over the course of many years which is a repository for information related directly to the very issues that this court was examining as a result of the defendant’s motion—remained secret, despite numerous specific discovery orders issued by this court, until long after the initial evidentiary hearing in this case was concluded and rulings were made.”

And so he put them all in prison and, oh wait. He disqualified the Orange County District Attorney’s office from the case. While an appropriate thing to do, it barely scratches the surface of a remedy. Sanders is seeking to use this as a wedge to take the death penalty off the table, so that Dekraai dies in prison later rather than sooner.

But if this is true, that there was this TRED database of Brady material that has been systematically denied defendants, and which was deliberately concealed from the judiciary as well over a period of decades, Sanders’ discovery goes far beyond this one case, and implicates every case prosecuted, every person who served in either the Orange County district attorney’s and sheriff’s offices, and undermines any integrity that might otherwise have existed in the system.

Crimes committed? You bet. Contumaciousness? Beyond your wildest imagination. The implications run as far and deep as they could possibly go, which is what makes this hugely problematic.  What will the court do when the impropriety is so pervasive?

As one might expect, the official wheels of government, headed up by California’s intrepidly challenged Attorney General, Kamala Harris, grind grindily.

California Attorney General Kamala Harris’ office was supposed to have inherited the prosecution of the Dekraai case, but she has appealed Goethals’ ruling. She also announced that her office will launch an investigation into all allegations. That has elicited its own criticism, with legal experts suggesting that a truly independent investigation needs to be launched; one that recognizes that the close ties between the attorney general’s office and the DA’s office warrant a completely neutral commission.

No doubt someone will hop right on this. Any day now.  And in the meantime, there remains the problem of jailhouse snitches making life for prosecutors a little more mindful.

As Dean Erwin Chemerinsky explains, the Constitution limits the use of jailhouse informants to situations in which statements are made voluntarily to cellmates, not orchestrated and recorded by jailhouse officials, all of which makes the interaction too much like an interrogation. 

Glad that Lithwick turned to Chemerinsky for this bit of deep inside baseball stuff, because who better than a law school dean to speak to what wrongs happen inside a jail?

The constitutional protections built into our criminal justice system are not perfect. But the events of the past year in Orange County reveal that the alternative—a nihilistic sense that we can do whatever we must to nail the criminals—is far more dangerous. 

If what Sanders unearthed in Orange County falls under the heading of “not perfect,” and required invocation of nihilism to show that the good ol’ “ends justify the means” view is “far more dangerous,” then this would be a rather puny revelation. It’s not. This is devastating, a systemic demonstration of evils that we previously could only imagine.  And apparently, it’s for real in Orange County.