October 19, 2022 By Paul Wallin

Don’t Let the Police or Prosecutors Violate Your Rights

The Orange County District Attorney’s Office (OCDA) and the Orange County Sheriff’s Department (OCSD) were the subject of an extensive investigation by the United States Department of Justice. Last Thursday, the Department of Justice (DOJ) released a report on the findings of its investigation of a custodial informant program in Orange County, finding that the program systematically violated criminal defendants’ Sixth Amendment right to counsel and Fourteenth Amendment right to due process of law. 

Investigative Findings 

The investigation, which began in 2016, consisted of extensive reviews of case files, numerous site visits, and dozens of witness interviews. It revealed that from 2007 to 2016, the Sheriff’s Department housed jailhouse informants near high-profile inmates in order to elicit incriminating statements from them, violating due process. The deputies concealed the systems that were designed to manage and reward the jailhouse informants. Furthermore, prosecutors were willfully ignorant and failed to disclose exculpatory information about the custodial informants to counsel for the defendants in some cases. 

Constitutional Violations 

Specifically, the DOJ discovered that the OCDA and OCSD violated the Sixth and Fourteenth Amendments. The Sixth Amendment guarantees that defendants shall have the assistance of counsel. A violation of this amendment occurs when a government agent elicits incriminating statements from a charged individual outside the presence of counsel. Similarly, the Fourteenth Amendment is also meant to ensure fairness in criminal proceedings. Stemming from the case of Brady v. Maryland, one of the requirements under the Fourteenth Amendment is that prosecutors must disclose evidence that is favorable to the accused, even if the defendant has not requested it. This means that prosecutors must disclose evidence that may point to the accused’s  innocence if it is provided by custodial informants. 

The DOJ report identified five ways in which the OCDA and OCSD engaged in investigative strategies that violated the Sixth and Fourteenth Amendments: 

First, the OCSD repeatedly placed informants next to investigative targets. After moving informants close to their targets, they ensured that the informants would have plenty of opportunities to elicit incriminating statements by using tactics such as solitary confinement. 

Second, the OCSD concentrated its custodial informant program within certain jail modules. The informants often used threats to coerce confessions and faced no consequences. 

Third, the OCSD and OCDA often deployed multiple informants against individual defendants. Using multiple informants increased the likelihood of obtaining an incriminating statement, and it became much easier for prosecutors to build their cases. 

Fourth, the OCSD and OCDA used experienced informants who worked on multiple cases. Whether informants consistently worked on cases for the OCSD or freelanced for outside agencies, extensive evidence from the investigation revealed that the continued success of the informant program depended on the use of repeat informants. 

Finally, the OCSD and OCDA provided benefits to informants in exchange for their assistance. While in custody, informants received preferential treatment such as telephone privileges, special food, custody arrangements, and more lenient sentencing. 

All of these practices contributed to the failure to protect the basic constitutional rights of criminal defendants. 

Remedial Measures 

While the report notes that some reforms have been implemented already, it also sets out additional remedial measures that the DOJ believes to be necessary. For example, the OCSD had no policies on custodial informants until 2014. Now, deputies must get permission from the district attorney’s office before using a jailhouse informant. In addition, the OCDA has undertaken an internal investigation on the informant scandal and taken some steps to redress past wrongful convictions. 

Nevertheless, both the OCDA and OCSD must do more to address the violations that have been committed. The DOJ, in their report, outlined 23 other remedial recommendations, including developing consistent and comprehensive custodial informant policies, implementing formal training, reviewing past prosecutions involving custodial informants, and regularly auditing custodial informants. For so long, the custodial informant program in Orange County was allowed to operate widely with detrimental effects on defendants. Going forward, it is hopeful that new reforms will prevent more constitutional violations from occurring in the future. 

Contact Wallin & Klarich Today 

If you or your loved ones may have been the victim of unlawful police or prosecutor actions, you should contact Wallin & Klarich as soon as possible to see how we can help. With 40+ years of experience, Wallin & Klarich will be there to help you when you call. Our attorneys have helped thousands of clients clear their names and restore their reputations, and we have the skills and resources to help you as well. 

With offices in Orange County, Riverside, San Bernardino, Victorville, Torrance, West Covina, Los Angeles, and San Diego you will find a convenient Wallin and Klarich office near you.  Discover how our team can assist you. Contact us today, toll-free at (877) 4-NO-JAIL or (877) 466-5245 for a free consultation with a skilled defense attorney.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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