The use of jailhouse informants to help prosecutors convict criminals is in the spotlight in Southern California after the U.S. Justice Department announced Thursday that it would open an investigation into the Orange County District Attorney's Office and sheriff's department to determine whether the agencies violated defendants' constitutional right to a lawyer and a fair trial, as well as whether due process rights were violated by failing to disclose evidence.
So, when can prosecutors use jailhouse informants? And what are the rules that govern them?
Chapman University law professor and former federal prosecutor Larry Rosenthal says there are two major factors to consider when using a jailhouse informant.
"The first is once an individual has been charged with a crime...the prosecution can’t deal with them except through a lawyer," he says. "An informant can be used to gather evidence that could be used in the pending case only if that informant is entirely passive. That means very careful precautions have to be taken in order to ensure that the informant isn’t actually trying to gather evidence. Second, any information relative to the credibility of that informant has to be disclosed to the defense."
Rosenthal says on the rare occasions that he used jailhouse informants in his career, it was carefully supervised and informants not only had to acknowledge in writing that they understood the rules, but also had their conversations recorded to ensure there was no active information-gathering going on. He adds that it's unlikely that the Orange County DA will be charged with a crime. In order for that to happen, he says, there would have to be proof that the DA went about trying to deny people their right to a fair trial, and that the evidence here suggests incompetence, not criminal negligence.
"When the OC DA gets pressed [on this issue], they have a very interesting answer. They say, ‘We’re not corrupt. We’re not trying to frame people. We’re just incompetent’," he says. "That’s the real problem here...If we have a district attorney in Orange County who can’t figure out what kinds of reforms are required, that’s the most serious problem."
Irvine-based criminal defense attorney William Weinberg sees it differently. He doesn't rule out the possibility the DA will face criminal prosecution. He adds that this case is important because it shows a systemic effort by the Orange County DA and sheriff's department to move informants around the jail, and adds that they even had computer software set up to monitor the informants.
"I think that situation has revealed that it’s almost impossible to get a really fair and honest informant to reveal information about criminal activity because it has to be passively-received information, and that’s very hard. It’s tempting for the jail to do what Orange County Sheriff’s Department did which is develop this completely secret system of cultivating and deploying informants in the jail system."
Weinberg says that given how difficult it is to get an honest informant who is only gathering information passively, you'd think defense attorneys like him would lick their chops at the prospect of a prosecutor introducing evidence obtained by a jail informant. But it's often not that simple.
"Most confidential informant cases are at street level. They’re people who have been charged with or suspected of crimes who ended up giving information to help themselves," he says. "The problem with licking your chops is you might be looking down at an empty plate because you don’t have all the information necessary to ask the questions you’d like to ask."
In the most notable fallout from the informant scandal so far, O.C. District Attorney Tony Rackauckas' office was thrown off the murderer case against Scott Dekraai, who carried out the 2011 Seal Beach salon shooting that left eight people dead. An appeals court judge recently upheld that decision and turned the case over to the state attorney general. Evidence and testimony revealed that the D.A.'s office had wired Dekraai's cell and directed a jail informant to obtain information from him, knowing that he he was being represented by a lawyer, a clear violation of his civil rights.
Both the Orange County District Attorney's Office and the Orange County Sheriff's Department have denied intentional wrongdoing and say they welcome the Justice Department's investigation.
Larry Rosenthal, professor in the Fowler School of Law at Chapman University and a former federal prosecutor
William Weinberg, criminal defense attorney based in Irvine