Fresh off a glowing feature on CBS’s 48 Hours, Deputy District Attorney Eric Scarbrough paced inside C45, often Orange County’s most fascinating courthouse stage, and spoke terse sentences. Scarbrough’s soft facial features belie veteran tenacity, but on the morning of Feb. 11, he knew he was losing a key murder-case argument. He wanted two records, the latest bombshells in the region’s ongoing jailhouse-informant scandal, permanently hidden from the public, a demand Superior Court Judge Thomas M. Goethals reluctantly considered. During five exchanges with Goethals, the exasperated prosecutor labeled the records attorney work product requiring official secrecy and, because reporters were in attendance, sought to have the courtroom emptied before he continued speaking. “There is difficulty in discussing these documents,” he complained.
Tony Rackauckas’ Orange County district attorney’s office (OCDA) has spent more than a year describing a plethora of unethical prosecution-team acts discovered in the scandal as accidents curable by in-house training seminars. Never mind that these accidents miraculously benefited the government in dozens of felony cases, or that the OCDA was historically recused from a death-penalty case last year; Rackauckas and his media flack Susan Kang Schroeder claim there is no proof of any purposeful wrongdoing. In their fantasy, the controversy that has earned national attention is a sham. The OCDA’s villain in the mess is Scott Sanders, the assistant public defender who singlehandedly uncovered the cheating through a monumental investigative undertaking. Rackauckas’ surrogates are hitting the rubber chicken circuit in a retaliatory public-relations effort. Their message? Don’t worry, Joe and Julie Citizen: Our inadvertent, minor hiccups were corrected long ago because we’re honest public servants.
But Scarbrough’s recent scene with Goethals destroys the OCDA’s asserted dedication to reforms. In fact, the battle over the long-concealed documents illustrates yet again why the U.S. Department of Justice must launch an independent investigation into our county’s law enforcement. Those records, which pertain to People v. Henry Rodriguez, aren’t bureaucratic dribble, as the deputy DA suggested. He wanted that homicide case evidence kept sealed because of its explosiveness. They prove OCDA officials knowingly hid exculpatory records and lied in court.
The fight over these documents also expands the scope of the scandal. It turns out it just wasn’t Sandra Hutchens’ Orange County Sheriff’s Department (OCSD) that pretended its whims for secrecy outranked decades’ worth of judicial orders seeking inmate classification records known as TREDs. We now know the OCDA operated the same scam with its informant index. As a consequence, thousands of pieces of information possessed by two government agencies and contradicting police versions of reality were kept from defense lawyers, judges and juries.
Reporting of these ugly revelations is the scenario Scarbrough hoped to prevent by kicking out the press corps for the protective-order discussion. Goethals, a stickler about keeping his courtroom open so citizens have confidence in judicial decisions, repeatedly declined the notion, but the deputy DA refused to concede. “We want those records sealed,” he insisted. Scarbrough then added a laughable argument, claiming his motive for seeking the evacuation was merely to “create a clear record.” The judge still resisted. Scarbrough persisted, and after moments of silent contemplation, Goethals caved.
Whatever additional arguments the deputy DA uttered aren’t known during the half an hour reporters spent locked out of the 11th-floor Santa Ana courtroom. Upon our re-entry, Goethals—himself a former homicide prosecutor—indicated he was unsealing the records. Here’s where Orange County residents, legal scholars and the folks with the Department of Justice in Washington, D.C., need to pay attention.
The newly released informant index records are the smoking gun of how OCDA prosecutorial misconduct convicted Rodriguez a decade ago. You may not care about this defendant or that he may be innocent of first-degree murder. But how would you feel if law enforcement cheated to put you or a loved one in prison?
A brief summary of the murder case is necessary. In July 1998, Richard Tovar killed his pregnant, 20-year-old girlfriend, Jeanette Espeleta, because he didn’t want to pay child support. Rodriguez, Tovar’s friend, was at Anaheim Stadium during the crime, but he also got charged after Fullerton police detectives illegally lured him into admitting he’d overheard Tovar make death threats prior to the killing and that he’d helped to dispose of the body. In 2003, a California Court of Appeal overturned the 2000 conviction and, leaving OCDA in a quandary, tossed out the alleged confession.
For a second trial in 2006, prosecutor Cameron Talley magically produced a new witness, methamphetamine addict Michael Garrity, whom he claimed could essentially duplicate the banned confession. But Talley needed to overcome the hurdle presented by Massiah v. United States, the U.S. Supreme Court case that blocks police and their agents, such as snitches, from questioning defendants who have been charged and have legal counsel. The OCDA insisted Garrity had not been an operational snitch, but rather squealed to authorities out of the goodness of his heart.
“We don’t have somebody who was ever, as far as the records indicate, used as a [government] plant in any of these cases,” Talley told Judge Frank F. Fasel, in a winning argument to put the snitch on the witness stand. “[Garrity] volunteers information to go forward to police in exchange for nothing. . . . At least that’s the [OCDA] position based on the facts that are before this court.”
The state appellate court ratified the new conviction by accepting law enforcement’s version as truthful. But in “The TRED Deception” on April 1, 2015, I reported what those appellate justices hadn’t known: OCSD hid TRED records proving Garrity had been a jailhouse rat for at least four law enforcement agencies and had received benefits. Also troubling, two Fullerton Police Department officers violated Massiah by giving him a list of questions to ask Rodriguez. Responsive answers weren’t introduced at trial, but one of those cops, Anthony Sosnowski, later got hired by Rackauckas.
The due-process disaster got worse, with Goethals overruling Scarbrough’s secrecy demand for the related informant index records, records that should’ve been turned over to Rodriguez defense lawyer James Crawford more than a decade ago. What prosecutors never wanted the public to know is contained in two sentences. Despite Talley’s assurance otherwise, the OCDA’s informant index states, “CI [Garrity] did receive consideration [for snitching] on cases here in our county.”
But it’s the second sentence that should trigger deafening sirens. The Feb. 10, 2005, entry leaves no doubt OCDA officials conspired against Rodriguez’s fair trial rights. It states that deputy DAs had been “instructed” to “refrain” from giving defense lawyers records of Garrity’s snitch rewards.
The tactic robbed Crawford of the ability to effectively cross-examine the government’s star witness, who bolstered his credibility by testifying he received nothing in exchange for informant work.
Fate smiled inside C45 precisely a decade and one day after that devastating index entry. That’s when Goethals unsealed the records, calling the evidence “material” and “relevant” to Rodriguez’s request for a new trial, which OCDA is vigorously opposing. Will this latest proof of prosecutorial misconduct sway the judge that justice has been trampled? Said Goethals, “I haven’t made up my mind yet.”
R. Scott Moxley’s award-winning investigative journalism has touched nerves for two decades. An angry congressman threatened to break Moxley’s knee caps. A dirty sheriff promised his critical reporting was irrelevant and then landed in prison. The U.S. House of Representatives debated his work. Federal prosecutors credited his stories for the arrest of a doctor who sold fake medicine to dying patients. Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; and hailed by two New York Times Magazine writers for his “herculean job” exposing Southern California law enforcement corruption.