“Americans who knowingly use the awesome and coercive power of our government in a manner that is either unconstitutional or statutorily illegal, against their fellow citizens, are the most dangerous and very worst of us and should be dealt with accordingly.”, Mike Perry
Dishonest Prosecutors, Lots of Them
Prosecutors who bend or even break the rules to win a conviction almost never face any punishment. But even given lax controls, the blatant and systemic misconduct in the Orange County district attorney’s office in Southern California stands out. In a scheme that may go back as far as 30 years, prosecutors and the county sheriff’s department have elicited illegal jailhouse confessions, failed to turn over evidence that is favorable to defendants and lied repeatedly in court about what they did.
These unconstitutional abuses are all the more troubling because Orange County is not some corrupt backwater with one rogue prosecutor. With more than three million residents, the county itself is more populous than nearly half the states in the country. Its district attorney’s office employs 250 prosecutors. In March, a California judge, Thomas Goethals, removed all of them from the county’s highest-profile murder prosecution in years because misconduct had tainted the entire office’s handling of the case. He reassigned the case to the California attorney general, Kamala Harris, a ruling her office is appealing.
Judge Thomas Goethals Credit Pool photo by Mark Boster
The case involved a 2011 mass shooting in which eight people were killed by a man named Scott Dekraai. Mr. Dekraai pleaded guilty in 2014, and a jury will consider whether to sentence him to death or life in prison. In early 2014, Mr. Dekraai’s public defender filed a 505-page motion detailing illegal and unconstitutional acts by prosecutors and the sheriff’s department, arguing that this record should take the death penalty off the table. Among other things, the defense argued, deputies intentionally placed informants in cells next to defendants facing trial, including Mr. Dekraai, and hid that fact.
The informants, some of whom faced life sentences for their own crimes, were promised reduced sentences or cash payouts in exchange for drawing out confessions or other incriminating evidence from the defendants. This practice is prohibited once someone has been charged with a crime. Even when using an informant is allowed, defendants and judges must be told of the arrangement. That did not happen in Orange County. As Mr. Dekraai’s defense lawyer discovered, the sheriff’s department kept secret a computer file showing where jailhouse informants were placed that went back decades. The prosecutor’s office kept separate files of data on informants and their deals. Some of the informants have helped law enforcement repeatedly in exchange for favors, a fact that is highly relevant in weighing their credibility.
The debacle in Orange County may be notable for its sheer size and impact — already, some murder convictions have been thrown out while other prosecutions have fallen apart — but such misconduct is an all-too familiar scenario when prosecutors value winning above justice. Alex Kozinski, a federal appeals court judge in San Francisco, has written that the withholding of exculpatory evidence has reached “epidemic” levels, and that the only way to stop it is for judges to hold prosecutors accountable.
Judge Goethals has set an important example on that count. The district attorney’s office continues to deny any wrongdoing, and has recently sought to have the judge removed from dozens of cases. Meanwhile, District Attorney Tony Rackauckas says the office’s failings are no more than the result of overworked prosecutors making isolated mistakes. Given the scope of what has been uncovered, that explanation is implausible.
The Justice Department should conduct a thorough investigation. But there is no indication that’s going to happen. In fact, it appears that Erik Petersen, one of the prosecutors Judge Goethals found had withheld key information from the court and defense lawyers, was offered a job in the federal prosecutor’s office in Omaha. When questioned about this inexplicable decision, a Justice Department spokesman would say only that Mr. Petersen will not become an employee in the department.
A version of this editorial appears in print on September 30, 2015, on page A24 of the New York edition with the headline: Dishonest Prosecutors, Lots of Them.