With the impending 2016 arrival of a CBS 60 Minutes crew digging into one of the nation's most troubling criminal-justice-system scandals, Orange County District Attorney Tony Rackauckas faced four uncomfortable options: one cowardly, one honest but painful, and two deceitful. Rackauckas could refuse interviews and pray the network's producers lost interest. The four-term, 74-year-old DA could also take the honorable course by coming clean and resigning office.
But those of us who've studied Rackauckas' dismissive scandal performances aren't shocked he focused his media strategy on the two prevarication options. Huddled with his advisers in his 10th-floor, downtown Santa Ana office, the DA pondered the choice of partially lying by blaming the mess on Sheriff Sandra Hutchens or uttering a laughable fiction that absolved Hutchens and himself from any wrongdoing. He chose the latter, telling the 60 Minutes crew eight lies in 14 aired remarks.
When Assistant Public Defender Scott Sanders four years ago began exposing how prosecution teams secretly tilted criminal cases in their favor by employing unconstitutional scams involving jailhouse snitches, Rackauckas' office labeled the accusations "scurrilous." Superior Court Judge Thomas M. Goethals rejected the DA's request to ignore the issue in People v. Scott Dekraai and ordered special evidentiary hearings in 2014 and 2015. Both the district attorney's office (OCDA) and Hutchens' Orange County Sheriff's Department (OCSD) insisted there was no jailhouse-informant program, so records of nonexistent snitches couldn't be produced. Revelation after revelation to the contrary prompted Goethals to call testifying deputies perjurers, wonder about the sheriff's moral compass and, in a history-making move, to recuse the entire DA's office from Dekraai, a death-penalty case.
For the first 176 weeks of the scandal, Rackauckas and Hutchens acted in lockstep, portraying themselves as victims of a meritless smear campaign. But the unholy marriage cracked in mid-2016. That's when Dan Wagner, the head of the DA's homicide unit and the often-wily, Bible-study-faced prosecutor in Dekraai, claimed shock to discover OCSD records, a Special Handling Log, that confirmed the informant program's existence as well as that deputies engaged for years in the "non-production" of Sanders' subpoenaed agency records.
According to the U.S. Supreme Court, the federal constitution bans law-enforcement officials and their agents—such as snitches—from soliciting incriminating statements from pretrial, charged defendants who have legal representation. To sidestep this prohibition, prosecution teams here pretended for decades that snitches collected information without aid or such enticement as promises of jail perks and punishment breaks. They also asserted snitch placements next to government targets had been accidental.
Wagner conceded the obvious in a June 9, 2016, statement that deputies "were working" Fernando Perez, a Mexican Mafia boss secretly employed as a paid snitch, in the months before and after his contact with Dekraai; that OCSD hadn't been forthcoming about records detailing snitch movements in the jail; and that the agency unethically hid documents Perez produced, evidence that would have revealed the illegal informant program.
Rackauckas' homicide-unit boss assured the public he'd written an "action plan to remedy" the legal issues because his objective was "to ensure any constitutional rights of defendants" are protected. "In the very near future," Wagner stated, OCDA would conduct inquiries into the content of the Special Handling Log and why it had been hidden for so long.
According to court records, however, the prosecutor, who worked behind-the-scenes to help deputies bury evidence, stalled that internal investigation for more than five months, allowing Daniel Wozniak, another Sanders client targeted by a paid jailhouse informant, to be sentenced to death without knowing deputies destroyed five consecutive months' worth of records that may have exposed additional cheating.
Bear with me on an important last point before we return to 60 Minutes. Those supposed "newly uncovered" OCSD logs detailed how jail deputies fabricated illnesses for snitches so their presence next to government targets in the medical ward wouldn't raise suspicions. For example, entries note how deputies were successfully "working" the ruse with one snitch "on the premise" he'd been "punted back" to a particular area by jail nurses for "asthma."
At the time of his CBS interview, Rackauckas already possessed those logs. He knew Wagner had on his behalf months earlier acknowledged the informant program and evidence hiding. He knew of his own repeated use of snitches, including Mark Cleveland (profiled in the 60 Minutes segment), to fool judges, juries and defense attorneys. He knew he couldn't bring himself to square his story with reality because, in truth, abandoning the sheriff, his partner in crime, means further exposing his own complicity.
Why was Perez, the prolific snitch who once bragged in a journal about "loving" his "job" working for prosecutors, put next to Dekraai in a jail system with a population of 6,500 inmates?
"Perez was not deliberately placed next to Dekraai in the Orange County Jail," the DA told 60 Minutes reporter Sharyn Alfonsi. "Dekraai was put [in that location] on a nurse's order, and Perez had already been there."
Alfonsi responded, "It was just a coincidence?"
Without hesitation, Rackauckas stated, "It was just a coincidence."
Sanders, also featured on the show, said, "They deny, deny, deny."
When Alfonsi followed up, asking about Cleveland and the vigorous, historic use of snitches to win questionable convictions while hiding more than 15,000 pages of evidence in Dekraai alone, the DA provided a truth-bending answer. "Fantasy," he said. "It's fantasy. . . . The office did not withhold evidence. . . . It's getting around that there's some kind of a conspiracy or there's some kind of . . . willingness to violate people's rights or to not give people a fair trial; that's a false narrative."
Sanders' argument that neither OCSD nor OCDA can be trusted to seek justice over winning cases continues to strengthen. Goethals, a former homicide prosecutor, believes it's necessary to start a third round of special evidentiary hearings this week. He says residents have a right to know how the leaders of the county's two most powerful agencies are acting, especially Hutchens, who has defied his court orders for more than three and a half years. Jail for some badged individuals is possible at the conclusion of the proceedings.
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Yet, the DA remains firmly in grip of a swirling tea cup at Fantasyland.
"The public defender made a lot of allegations, of all kinds of criminal conduct, of terrible things," Rackauckas told 60 Minutes. "And believe me—and if those things were true—we should be in jail, frankly; if those things were true, that would be very bad."
If justices at the California Court of Appeal see this case again, they should ponder the DA's disgraceful gamesmanship. The 60 Minutes broadcast didn't mention this monumental fact, but last December the appellate court backed Goethals' recusal order as legally justified over Rackauckas' lame arguments otherwise. Evidence proved prosecutors participated "in a covert" OCSD confidential-informant program that "violated the constitutional rights" of defendants and "withheld that information" from defense attorneys," the justices ruled. "The conflict here is 'real,' 'grave' and goes well beyond simply 'distasteful or improper' prosecutorial actions."
(This news column appears in the print edition as "60 Minutes to Detonation: DA Tony Rackauckas tells explosive snitch-scandal lies on national TV broadcast.")