IPPEC Report

Date: January 4, 2016

OCDA MAKES REFORMS BASED ON INFORMANT POLICIES AND PRACTICES EVALUATION COMMITTEE REPORT

*Video of the roundtable will be available on the Orange County DA YouTube channel

SANTA ANA, Calif. – The Orange County District Attorney’s Office (OCDA) announces its changes on policies and procedures to reflect the Informant Policies and Practices Evaluation Committee (IPPEC)’s report released today regarding the use of jailhouse informants by the OCDA. IPPEC is comprised of legal experts from outside the OCDA, including retired Orange County Superior Court Judge Jim Smith, retired Los Angeles County Assistant District Attorney Patrick Dixon, former Orange County Bar Association President Robert Gerard, and Blithe Leece, an attorney who specializes in ethics law and professional responsibility. Legal scholar and ethics expert, Professor Laurie Levenson of Loyola Law School, served on IPPEC as an advisor.

IPPEC was created in July 2015 after the OCDA conducted an in-house investigation into legal questions raised concerning the use of in-custody informants and their effects on the rights of defendants who have been charged with crimes. The investigation resulted in policy and personnel changes to ensure that no material or technical violations of a defendant’s rights occur in the future. The changes include: new leadership and personnel; additional staff in the Gang Unit; new internal committee headed by District Attorney Tony Rackauckas to review and approve or disapprove the use of an in-custody informant in a criminal case; an updated informant policy manual to establish new guidelines for the use of informants, and training of law enforcement both internal and external.

Legal Authority for Use of In-Custody Informants

For as long as there have been police officers, informants have been used to help combat crime. Without informants, many of the more serious and violent crimes would remain unsolved and criminals threatening the public safety would not be brought to justice. The Supreme Court has acknowledged, “The informer is a vital part of society’s defensive arsenal.”  McCray v. Illinois(1967) 386 U.S. 300, 307. Likewise, Judge Learned Hand wrote, “Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely on them or upon accomplices because the criminals will almost certainly proceed covertly.” United States v. Dennis 183 F.2d 201, 224 (2d Cir. 1950).

Often, the criminal justice system requires balancing of competing interests, including in the area of informants. Recognizing that the use of informants is a legitimate law enforcement practice, California law provides protection to those who provide information to law enforcement.  Evidence Code section 1041 codifies a long-standing legal privilege protecting the identity of informers. As held by the California Supreme Court, by means of section 1041, “The informer is thus assured of some protection against reprisals.” People v. McShann (1958) 50 Cal.2d 802, 806. On the other hand, criminal defendants have their own constitutional rights. These rights include due process of law and the right to a fair trial.  Sometimes, an accused’s right to a fair trial will require that an informant’s identity be disclosed.

Prosecutors and police officers have a duty to ensure that all criminal defendants’ rights are protected. Public trust in the criminal justice system can erode if law enforcement’s use of informants does not conform to legal standards. Therefore, it is imperative that police and prosecutors in Orange County use informants only in a lawful manner. 

IPPEC Evaluation and Recommendations

In the report published today, IPPEC found that a controversy on the use of jailhouse informants unfolded during the case People v. Scott Dekraai, when discrepancies in discovery produced by the OCDA involving the use of a jailhouse informant came to light. The committee was assembled to look into this and the issues the OCDA faced in regards to the use of informants.

In early December 2015, an internal OCDA survey found that jailhouse informants were used for grand jury, preliminary hearings, or trial purposes in three of the 8,625 felony cases filed in 2015. If all filed cases are included in which law enforcement used a jailhouse informant, the number is between 35 and 40.

The recommendations include:

1. That policy and procedure be revised regarding the use of jailhouse informants. The OCDA had previously recognized that this was a necessity and had implemented revised policy and procedures for 18 months. OCDA staff and law enforcement partners have published this policy titled, “OCDA Informant Manual,” and it is available at www.orangecountyda.org, under the Reports drop-down menu.
2. To establish a Confidential Informant Review Committee (CIRC) with defined protocols and include an “outside” or independent member on the CIRC. The OCDA agrees with this recommendation and will begin the search to contract an external expert to fill this position.
3. Overhaul the OCDA training program with an emphasis on discovery obligations and use of jailhouse informants. The OCDA has already implemented an extensive training program which covers most of the suggested training, with the exception of “OCDA Management/Leadership Training,” which the OCDA will seek to add as a mandatory training in 2016. The list of training and the full 2016 training schedule is available in a report titled, “2015 Training Performance Report & Plan,” on our website, under Reports.
4. Coordinate with the Orange County Sheriff’s Department and all Orange County law enforcement agencies regarding jailhouse informant protocols and procedures including OCDA’s jailhouse informant policy, and engage in detailed training on the OC Informant Index. This coordination is already underway with assistant district attorneys holding trainings available to law enforcement and presented at local universities and the OCDA plans to continue to provide training on this subject.
5. Restructure and combine the Gang and TARGET Units into one. The OCDA will incorporate this recommendation and will merge both units into Gang and Target Unit with two teams led by two separate assistant district attorneys. The OCDA is also taking steps to make sure that deputy district attorneys embedded in a police department are above undue pressures to file a case from law enforcement by involving veteran and experienced deputy district attorneys to oversee the filings, and addressing the issues in training.
6. Establish an OCDA Conviction Integrity Unit. The OCDA has been proactive in ensuring the integrity of convictions, but will now call it a Conviction Integrity Team to specifically detect, address, and remedy prosecutor mistakes and improper investigations. Once the Team is set up, the OCDA publicize contact information for anyone who would like to contact the Office on this matter.
7. Establish an OCDA Chief Ethics Officer position. The OCDA agrees with this recommendation and plans to implement it.
8. Reinstate Chief Assistant District Attorney position. The first priority will be to implement the changes listed above and then the OCDA will re-evaluate whether such a recommendation is advisable.
9. Eliminate the Chief of Staff position and create a position of Assistant District Attorney for Media Relations. The OCDA feels the Chief of Staff provided as much information to the public as was allowable at the time and following the ethical rules of conduct, due process rights, and legal standards. The change in title would not be helpful as the Chief of Staff also has other duties beyond media relations.
10. Appoint a monitor to oversee OCDA compliance with IPPEC recommendations. The OCDA will be hiring an external professional to oversee the OCDA’s assimilation of the Committee’s recommendations.

In response to the additional recommendation that the OCDA request a formal investigation from an entity with subpoena power, the District Attorney Tony Rackauckas agreed and today wrote a letter to U.S. Attorney General Loretta Lynch to review policies and practices regarding the use of jailhouse informants. That letter titled, “Letter to the U.S. Attorney General,” is also on the OCDA website, under Letters from the Reports tab.