The 30-month-old Orange County jailhouse snitch scandal added a new chapter this week when the American Civil Liberties Union (ACLU) threatened to file a lawsuit against embattled District Attorney Tony Rackauckas, who is refusing to surrender a massive cache of agency records tied to the controversy.
In March, the ACLU filed a public records act request seeking 29 categories of DA records that largely focus on informant policies as well as prosecutorial misconduct.
Several weeks later, Rackauckas aides Denise Hernandez and Ebrahim Baytieh posed confused by parts of the request and in most other cases asserted legal exemptions, including that, in their view, the public interest favors government secrecy over disclosure. They added that even an attempt to fully comply with the request would be overly burdensome.
ACLU staff attorney Brendan Hamme sent Rackauckas a June 30 letter declaring his opposition to the agency’s “worrisome” and “deeply troubling” response.
“You assert throughout your letter that the disclosure of many basic documents, such as your offices’ policies, practices, memoranda, and training materials on Brady and Massiah, which would evidence either your offices’ compliance with or violations of the Constitution and other laws, would not be in the public interest,” wrote Hamme. “Given the near 30-year history of both Brady and Massiah violations by your office, we disagree strongly and are confident a court would also . . . We strongly urge you to reconsider the position staked out in your March 28, 2016, letter and begin the work of repairing you office’s tattered image and the public’s faith in your ability to fairly administer justice.”
The scandal, uncovered by Assistant Public Defender Scott Sanders, involves a series of bombshell revelations that Orange County law enforcement used informants to question pre-trial inmates about their cases, moves that violated the constitutional right against self-incrimination; and hid records and committed perjury to cover up the scams.
Sheriff Sandra Hutchens and Rackauckas first said the controversy was a fiction while acting miffed, but later claimed they’d enacted a series of reforms. Though killers have gone free because of the violations, not a single OCSD or DA employee has been punished. The DA and sheriff’s refusal to truthfully acknowledge the mess and hold government cheaters accountable has prompted nationwide call for a U.S. Department of Justice investigation.
The ACLU’s public records act request aims to obtain records of how Rackauckas tracks prosecutorial misconduct in his office and related reprimands, but the DA, who has been blasted for poor management skills, insists there has been not a single incident of prosecutorial misconduct and, therefore, there aren’t any records.
Hernandez and Baytieh told the ACLU that they “object to this request” because it’s “vague” and noted the disclosure law does not require the agency “to create a record that does not exist.”
After suggesting “productive conversations” about how to resolve the impasse by July 14, Hamme mentioned the possibility of future litigation to “sort out” whether OCDA is improperly hiding records.
“Now is the time for your office to demonstrate that it has reformed itself, has concrete plans to remedy its past misconduct and bring justice to those who were denied it, and to usher in a new era of accountability and transparency for your office,” Hamme wrote to the DA.