Criminal Justice

DOJ report explains why jailhouse informant program violated defendants' constitutional rights

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A jailhouse informant program in Orange County, California, violated the constitutional rights of criminal defendants because of jailers’ involvement, according to a long-awaited report by the U.S. Department of Justice.

The DOJ began the probe in December 2016. The report was released Oct. 13, according to a DOJ press release.

The report said there is “reasonable cause to believe” the sheriff’s department and district attorney’s office in Orange County, California, systematically violated defendants’ Sixth Amendment right to counsel and their 14th Amendment right to due process.

A Sixth Amendment violation happens when an informant is acting as an agent of the state and makes some effort to elicit information from a defendant about a crime being prosecuted, the report said.

“The Sixth Amendment is violated at the moment a government agent elicits inculpatory statements from a charged individual outside the presence of counsel,” according to the report.

A 14th Amendment violation happens when material evidence is exculpatory or calls witness credibility into question, and it is withheld from the defense by the government, willfully or inadvertently, the report said. Impeachment evidence may include that an informant lied in the past, and that an informant has received benefits for cooperation.

The Orange County program, which focused on defendants charged with homicide and gang crimes, operated from 2007 through 2016. Jailers placed informants next to targeted defendants after those defendants were charged with a crime and while they were represented by counsel, according to the report.

The informant program “often relied on seasoned informants whom jail personnel and prosecutors used across multiple cases and operations,” the report said. Multiple use of informants is evidence that they were acting on behalf of the state, according to the report.

Informants were rewarded with leniency in the form of reduced charges or sentencing requests and were provided benefits that made their jail time easier. Those benefits could include special food, visits, phone calls and preferred housing assignments. Providing rewards to informants “further illuminates” the close relationship with law enforcement, according to the report.

Prosecutors failed to seek out and disclose to the defense evidence that the defendants were questioned by informants in violation of their Sixth Amendment rights, the report said. Prosecutors also failed to disclose that the informants had a motive to lie or were unreliable people.

Prosecutors have a duty to affirmatively seek out evidence favorable to the defense under the 14th Amendment’s due process clause, the report said.

The district attorney and sheriff’s department have already implemented reforms, but more could be done, the report said. Both agencies must improve coordination and information sharing to ensure that sheriff’s deputies have appropriate guidance, and that prosecutors have a complete picture of investigations involving jailhouse informants.

The DOJ and the California attorney general’s office investigated after Orange County public defender Scott Sanders uncovered evidence about the program. The California attorney general’s investigation ended without criminal charges or penalties.

Sanders uncovered the information while representing confessed mass murderer Scott Dekraai. A judge eliminated the possibility of a death penalty in August 2017 because the prosecution failed to disclose misconduct in connection with the informant program.

Publications with coverage of the DOJ’s report include Law360, Reuters and the Orange County Tribune.

See also: “Are jailhouse lawyers beneficial or bad for the system?”

ABA Journal: “Secret Snitches: California case uncovers long-standing practice of planting jailhouse informants”

ABA Journal: “Jailhouse Warehouse: The nation’s jails are housing more mentally ill people than hospitals”

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