A committee of legal experts, referred to as the Informant Policies & Practices Evaluation Committee (IPPEC), hand-picked by Orange County District Attorney Tony Rackauckas on Monday issued a report declaring his office a “rudderless ship” and calling for a deeper investigation into the use of jailhouse informants, according to the O.C. Register.
Rackauckas’ hand-picked panel backfired on him as they are calling for the Orange County Grand Jury, the state Attorney General or the U.S. Department of Justice to further investigate the allegations that prosecutors and police misused a covert network of jailhouse informants and withheld evidence from defense attorneys.
The five-member panel included Jim Smith, a retired Orange County Superior Court judge; Patrick Dixon, a retired Los Angeles County assistant district attorney; Robert Gerard, former Orange County Bar Association president and Blithe Leece, an attorney who specializes in legal ethics and professional responsibility. Laurie Levenson, a Loyola Law School professor and ethics expert, also served, as an adviser.
Here are the recommendations that the IPPEC panel made to the OCDA:
- No. 1: Revise OCDA policies and procedures regarding the use of jailhouse informants.
- No. 2: Establish a Confidential Informant Review Committee (CIRC) with defined protocols and
include an “outside” or independent member on the CIRC.
- No. 3: Overhaul the OCDA training program, with extensive additional training regarding
discovery obligations and the use of jailhouse informants.
- No. 4: Coordinate with the OCSD and all law enforcement agencies in Orange County regarding
jailhouse informant protocols and procedures, including OCDA’s Jailhouse Informant Policy, and
engage in detailed training on the Orange County Informant Index (OCII).
- No. 5: Restructure and combine into one unit the OCDA Gang Unit and Target Unit.
- No. 6: Establish an OCDA Conviction Integrity Unit.
- No. 7: Establish an OCDA Chief Ethics Officer position.
- No. 8: Reinstate the Chief Assistant District Attorney position.
- No. 9: Eliminate “Chief of Staff” position and create a position of “Assistant District Attorney for
- No. 10: Appoint an independent “monitor” for a three-year period to oversee OCDA compliance
with the IPPEC’s recommendation.
And here is the IPPEC’s summary of their investigation:
While the ethical prosecution of criminal charges is of paramount importance to the public, it is of particular and more immediate importance to well-defined groups, including: criminal defendants; crime victims; criminal defense attorneys; prosecutors; judges; juries; families of victims; and the families of the accused. The confidence of these various constituencies in the prosecution of criminal cases in Orange County that involve the use of jailhouse informants has eroded. However, implementation of the recommendations in this Report can serve to restore confidence in the Orange County criminal justice system.
During the IPPEC’s evaluation process, dozens of prosecutors and criminal defense attorneys willingly participated in IPPEC interviews. The IPPEC appreciates the time that these lawyers spent with the IPPEC. Many of the criminal defense attorneys interviewed by the IPPEC pointed out the high ethical standards exhibited by many of their opposing counsel from the OCDA’s Office.
However, during the evaluation it became clear that over the years, some prosecutors at the OCDA’s Office adopted what the IPPEC will refer to as a win at all costs mentality. This mentality is a problem. Stronger leadership, oversight, supervision, and training can remedy this problem. Key to addressing the problem is changing the culture of the office by not rewarding prosecutors with the “must win” mentality with promotions. Prosecutors’ performance reviews should focus less on winning trials, and reflect greater emphasis on legal knowledge, analysis of issues, and finding justice.
What also became clear during the evaluation was that, in many ways, the OCDA’s Office functions as a ship without a rudder. While the high level of trust that the District Attorney has given to IPPEC Evaluation Committee Report his senior deputies and supervisors is in many ways admirable and a credit to the experience of those senior deputies and supervisors, there does not appear to be any consistent or clear cultural message emanating from the top down to the bottom of the organization. In short, the office suffers from what is best described as a failure of leadership.
This failure appears to have contributed to the jailhouse informant controversy. The management in the office was unaware of the caseloads, use of jailhouse informants, and discovery challenges of Deputy District Attorneys in the Target, Gang, and Homicide Units. The lack of oversight of these serious cases led to repeated legal errors that should have been identified and rectified by management long before the problems reached the current scale. Additionally, the lack of oversight by management at all levels has resulted in implementation of inconsistent procedures and practices. This is an issue that must be acknowledged, shouldered, and remedied by the entire leadership team at the OCDA’s Office, including the District Attorney, Senior Assistant District Attorneys, and the Assistant District Attorneys. In fact, the IPPEC evaluation revealed that the District Attorney himself was unaware of many of the problematic issues that led to the jailhouse informant controversy.
The IPPEC evaluation also revealed that, within the OCDA’s Office, there is a palpable hesitation to bring problematic information to the attention of the District Attorney. One readily apparent reason for this hesitation is that senior management at the OCDA is subject to termination without cause.
When a Deputy District Attorney 4 accepts a promotion to Assistant District Attorney or Senior Assistant District Attorney they become “at will” employees, and serve at the pleasure of the District Attorney. By accepting these promotions, prosecutors give up all civil service protection. If terminated, these senior prosecutors cannot revert back to their previous civil service protected position of Deputy District Attorney. Rather, they must leave the OCDA. Such a policy does not promote the free exchange of ideas on issues facing the OCDA. While the IPPEC recognizes that the District Attorney should have the ability to select his executive staff, we recommend that if these prosecutors are removed from their “at will” positions they should be returned to their previous civil service jobs, not terminated. This lack of job security inhibits the free exchange of ideas among managers. Hopefully a change in the civil service rules will result in more independent (and vocal) thinking by senior management level attorneys.
The IPPEC also learned that over the years a certain ambivalence has developed about making suggestions or expressing concerns because, often times, despite acknowledgement of the concern or an expression of thanks for the suggestion, “nothing ever happens or changes.” This ambivalence underscored the need for more robust communication and leadership at the OCDA.
Clearly it is time for OCDA Tony Rackauckas and his Chief of Staff, Susan Kang Schroeder, to resign.