Orange County could become one of the first local governments to provide civilian oversight of its District Attorney, a move mainly influenced by local prosecutors’ improper use of jailhouse informants in criminal cases.
Orange County supervisors voted 3 to 2 Tuesday to expand the purview of its current oversight body, the Office of Independent Review. The organization currently oversees the Orange County Sheriff’s Department, but will watchdog other law enforcement, including the District Attorney’s and Public Defender’s offices, probation and social services agencies.
The move--which asks legal staff to work out the details--comes after an Orange County Superior Court judge this year found that that O.C. Sheriff’s deputies and prosecutors unconstitutionally used jailhouse informants to obtain information against defendants who already had lawyers.
“We don’t know the extent of the scandal in the District Attorney’s office. We don’t know how many convictions are tainted because of it ” said, Erwin Chemerinsky, dean of UC-Irvine’s Law School.
Unlike the county public defender, which is appointed -- the District Attorney and Sheriff are elected officials. Rackauckas and Sheriff Sandra Hutchens’ terms end in 2018.
Chemerinsky continues to call for the U.S. Department of Justice to investigate potential wrongdoing in the OC District Attorney’s in regards to jailhouse informants. The U.S. Attorney's Office said it continues to keep an eye on law enforcement in the county. Chemerinsky’s also called on the Attorney General Kamala Harris to investigate Orange County’s jailhouse informant scandal but that hasn’t happened.
He said an inspector general model--like that adopted for the L.A. County Sheriff's Department-- would be one way to provide prosecutorial oversight of the district attorney in Orange County. The U.S. Attorney’s Office also has an inspector general within the department.
Ideally, an oversight body would have the ability to investigate and subpoena, said Chemerinsky.
“Often the way in which wrongdoing is learned is through whistleblowers,” he said. “And you need somebody for the whistleblower to go to and you need protection for the whistleblower.”
District Attorney Tony Rackauckas and Public Defender Frank Ospino, however have sent letters to the Orange County Board of Supervisors opposing oversight calling it redundant and overreaching.
“A county oversight committee cannot legally exercise any supervisory control over the manner in which the District Attorney executes its prosecutorial function,” wrote Rackauckas.
The district attorney, like the sheriff, is an elected position, and traditionally have to answer only to the voters, short of being prosecuted criminally. At the moment, there's no civilian oversight for prosecutors in the county--or for prosecutors in most, if not all counties in the country.
But Orange County Supervisor Andrew Do said oversight didn’t meant “day-to-day” supervision. The board is fiscally responsible for the department, and therefore has the power to intervene when money's concerned.
“What we’re talking about is when there are allegations of abuse that may expose the county to a liability,” Do said. “Guess what, we have the ability through risk management to get into your cases, now.”
When prosecutors or any attorney violates professional conduct, they can be reported to the California State Bar for investigation and discipline. However, a state audit released this summer showed the Bar, suffering from a thousands of backlogged complaints in 2010 and 2011 against lawyers, settled those cases with lenient discipline.
“Bar discipline is fairly rare,” said Chemerinsky. “It’s particularly unusual when it comes to prosecutors.”
No specifics about how oversight of the DA's office or other law enforcment agencies in Orange County have been hammered out, yet. County supervisors would need to vote again on those changes and address potential 'meet and confer' union obligations.