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July 1, 2019

Formerly Secret Operation by District Attorney and Sheriff Stomps on Constitutional Rights

SANTA ANA — The American Civil Liberties Union, the ACLU Foundation of Southern California, and the law firm of Munger, Tolles & Olson LLP today filed an appeal to a court ruling on its lawsuit against Orange County's District Attorney and Sheriff, whose departments conducted a secret jailhouse informant operation in violation of the U.S. Constitution and California law.

For more than 30 years, the departments have recruited and placed informants in jail cells with defendants, paying and rewarding informants with sentence reductions for extracting incriminating information from the defendants without their lawyers being present. Payments of six figures were doled out to informants who sometimes used threats of violence — including murder threats — to coerce questionable confessions and other information.

The original lawsuit against the informant program, filed in April 2018, was dismissed earlier this year when a court ruled that taxpayers — whose funds are used to pay the illegal expenditures of the program — lacked standing to bring the suit. But they are unjustly wronged when their money is used to fuel a program that stomps on constitutional rights.

The appeal also strongly challenges the court's assertion that allowing taxpayers to sue prosecutors and sheriffs would infringe on law enforcement "discretion." But when it comes to obeying the law, prosecutors and sheriffs do not get a pass.

"Government officials do not have the discretion to violate the law, least of all the prosecutors and law enforcement charged with enforcing it," said ACLU SoCal Staff Attorney Brendan Hamme. "Nobody is above the law."

In the meantime, the unlawful jailhouse informant program has been allowed to operate with impunity. And even though it came to light in recent years in a number of court trials — including that of mass murderer Scott Dekraai — the district attorney’s office continues to deny its existence. Even in the face of a public defender’s court motion that pointed to at least 147 cases since 2016 in which the district attorney did not disclose relevant evidence of sheriff’s deputies’ illegal involvement in the informant program.

"So many things that go wrong in the criminal law system trace back to unscrupulous prosecutors," said Somil Trivedi, senior staff attorney at the ACLU's Criminal Law Reform Project. "These powerful actors are supposed to pursue justice, not just convictions. But when they lazily rely on compensated informants instead of finding the true facts, we have every reason to doubt that justice has been served."

The district attorney and sheriff went to great lengths to keep the toxic program secret, even if that meant trampling on innocent people. The appeal, filed in Orange County Superior Court, details several cases, including that of Luis Vega who was 14 when he was arrested in 2009 for attempted murder. Two jail informants produced information without coercion that showed Vega was innocent. But this information was not relayed to Vega or his attorney because it could have exposed the entire illegal program. Vega remained in prison for nearly two years.

"Luis' case is a perfect illustration of the absurdity of the district attorney and sheriff's claim that there is no public interest in requiring them to comply with their legal duties," said Jacob Kreilkamp of Munger, Tolles & Olson. "The Constitution and California law require prosecutors to turn over favorable evidence to the defense to avoid exactly these sorts of miscarriages of justice."

The appeal was filed on behalf of four clients:

  • Bethany Webb: An Orange County resident and taxpayer whose sister was murdered by Dekraai. Court proceedings in the case suffered multi-year delays because of revelations related to the informant program.
  • Theresa Smith: An Orange County resident and taxpayer who founded the Law Enforcement Accountability Network after Anaheim police killed her son in a shooting she believes was unjustified.
  • Tina Jackson: An Orange County resident and taxpayer who founded Angels for Justice that connects prisoners and their families with a wide variety of services.
  • People for the Ethical Operation of Prosecutors and Law Enforcement (P.E.O.P.L.E.): An organization working to reform the Orange County criminal justice system.

The ACLU Campaign for Smart Justice — an unprecedented effort to reduce the U.S. jail and prison population by 50 percent and to combat racial disparities in the criminal justice system — has launched a multi-year initiative to make sure that prosecutors who break the law are held accountable for fueling mass incarceration and racial disparities in the criminal justice system.

See a video about the Orange County lawsuit at:

Read the appeal filing here: