Twenty-six weeks ago, Tony Rackauckas rolled the proverbial dice and attempted to take control of his public-relations nightmare over a headline-grabbing, jailhouse-informant scandal by hand-picking investigators to study what went wrong. Courthouse observers at the time saw the move as a public-relations stunt. After all, Orange County's district attorney and his senior staff had spent 18 months angrily attempting to sell the controversy as a fiction created by diabolical defense lawyers, misguided judges and lazy journalists.
Our 72-year-old top prosecutor isn't known for measurable TED Talk skills, but he temporarily abandoned the victim stance to play concerned public servant when he announced the creation of an Informant Policies & Practices Evaluation Committee (IPPEC) on July 6.
"I think it's important to have an objective and expert external committee, with different points of view, to thoroughly review and analyze the issues regarding the use of in-custody informants so we can improve our procedures and avoid any future mistakes," Rackauckas said to sidestep calls for a U.S. Department of Justice (DOJ) probe. Erwin Chemerinsky, dean of the UC Irvine School of Law, weeks earlier labeled the situation a constitutional "crisis" resulting in tainted convictions and deserving of federal intervention.
At the same time he touted the committee's creation, the DA couldn't resist adding a line that undermined its necessity by assuring the community his office is "tough but fair." Thomas Goethals and Richard King, two Superior Court judges who were close colleagues with Rackauckas in the Orange County district attorney's office (OCDA) decades ago, issued 2014 rulings counter to the assertion; they say they are offended by informant abuses and the agency's denials of complicity. Rackauckas hailed their view as rubbish and hoped the outside panel would provide him cover.
But the DA's IPPEC gamble failed. This week, we learned the group sounded what should be the final wake-up call that the scandal isn't imaginary. Committee members—legal-community heavyweights Patrick Dixon, Robert Gerard, Blithe Leece, Laurie Levenson and James Smith, all approved by Rackauckas—blasted the OCDA's grave mismanagement woes that carry sinister overtones.
Their 24-page report found "numerous deficiencies in both supervision and training" over the use of informants. Worse, they confirmed what the Weekly has been reporting for years: While the agency employs some of California's best prosecutors, it also harbors more than a few who've adopted a "win at all costs" mentality that tramples basic ethical standards. Far from rebuking these cheaters, the offenders have been rewarded with promotions, the committee declared.
"What also became clear during the evaluation was that, in many ways, the [OCDA] functions as a ship without a rudder," the report states in direct aim at Rackauckas, who is characterized as clueless about key scandal details two years into the mess that has won embarrassing attention from The New York Times, National Review, Huffington Post and Washington Post. "In short, the office suffers from what is best described as a failure of leadership. This failure appears to have contributed to the jailhouse-informant controversy. . . . There is a palpable hesitation to bring problematic information to the attention of the district attorney."
The committee observed, "One readily apparent reason for this hesitation is that senior management at the OCDA is subjected to termination without cause." If true, this partly explains the circle-the-wagons mentality the agency adopted after Assistant Public Defender Scott Sanders issued his bombshell revelations in January 2014. In a nutshell, Rackauckas said there was no scandal, and his underlings energetically regurgitated the spin. Some of these staffers portrayed themselves to the IPPEC as noble actors in a warped agency, but no one should underestimate the intensity of their animosity, including what was aimed at Sanders for his whistleblowing.
To its credit, the panel didn't try to sell its findings as exhaustive. They cautioned they had to rely on records the agency's bosses wanted to provide and couldn't force prosecutors to speak under oath. Their unflattering report, which is causing longtime Rackauckas loyalists to ponder his resignation, is an "evaluation rather than an investigation" because of the limits placed on their powers.
Nonetheless, the members agreed on 10 recommendations to the DA, including:
• Revising policies and procedures for the use of jailhouse informants;
• Creating a Confidential Informant Review Committee with defined protocols;
• Overhauling OCDA training regarding discovery obligations and the use of snitches;
• Coordinating honest informant protocols with local police agencies;
• Launching a Conviction Integrity Unit "to detect and remedy police and prosecutor mistakes earlier in the judicial process";
• Establishing a chief ethics officer position;
• Amending Susan Kang Schroeder's title from chief of staff back to a media-relations-based job description as a step to improve what agency staffers complain are "toxic" relations with the press; and
• Appointing an independent, three-year monitor to confirm the enactment of informant program reforms.
The committee rejected Rackauckas' mantra that all issues can be resolved simply by in-house training seminars. Without reaching a conclusion about potential criminal wrongdoing, they recommend that an outside entity with real authority to investigate should launch a probe. Such an inquiry is necessary "to demonstrate transparency and foster confidence in the Orange County criminal-justice system," the report declared.
If there is naivety among committee members, it's their call for either the OC Grand Jury or California Attorney General's office or the DOJ to take the leading role. Our grand juries, often overwhelmingly comprised of elderly citizens unable to muster the courage to confront abusive power players in the county, historically have served as an OCDA rubber stamp. Kamala Harris' AG office is similarly worthless. Her agency laughably announced last year that it could find nothing alarming in the scandal, except for dishonest jail deputies working for Sheriff Sandra Hutchens.
It's equally true DOJ officials in Southern California as a whole can't be trusted for the assignment. Too many of them snuggle with Rackauckas-tied political-party brokers to secure state judicial appointments. At this point, the only hope for honest digging into the snitch scandal is Washington, D.C.-based federal prosecutors.
Besides, the DA sent U.S. Attorney General Loretta Lynch a letter this month encouraging the DOJ's arrival on the scene. Just as he did at the outset of the IPPEC, Rackauckas, the bold gambler, claims he would "welcome" the probing. "I am offering [DOJ] unfettered access to any documents and/or personnel of the OCDA," he wrote without mentioning that Lynch, the nation's top law-enforcement official, doesn't need his permission.
Is there a chance the DA truly isn't worried about DOJ? No. He's a politician afraid of the local press corps. On Jan. 4, his staff gave reporters scattered all over the county's traffic-congested, 948 square miles a lame 53-minute email notice of the corresponding press conference. There, not surprisingly, a defiant Rackauckas continued to pretend there's no cause for concern.
The five-term DA insists he's not entertaining resignation notions. He says he wants to stay on the job until he's 79 years old—maybe longer. He was giddy in a Jan. 5 KFI-AM interview, contending his office is close to perfect. Right about now, Todd Spitzer—a 55-year-old county supervisor, former prosecutor and Republican state assemblyman, and Rackauckas' most vocal critic on ethical abuses—must feel empowered two years before the next election.
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(Clarification: An earlier edition of this column incorrectly stated OCDA held the report for days. Committee member Gerard advised me this afternoon that the agency and press near simultaneously received the report on Jan. 4.)