Andrew C. Whitman, ACLR Featured Online Contributor

Someone has to be in charge of criminal investigations and prosecutions in Orange County.”
-Judge Goethals

In Orange County (OC) this past March, we saw a rare challenge to the inviolability of the American prosecutor. OC Superior Court Judge Thomas Goethals dismissed the entire Orange County District Attorney’s (OCDA) Office from a high-profile mass murder case for its role in supporting and hiding the unconstitutional use of jailhouse snitches.2 The practice, which stretches back at least a decade,3 has resulted in dozens of convictions based on unconstitutional evidence. It is clear that the OCDA’s Office played a crucial role in promoting this practice. It is unclear, however, whether these prosecutors will face substantial penalties, disbarment, or jail time for their violations. Various prosecutorial bodies—including the state AG’s office and the Justice Department—may decide to prosecute. Relying on prosecutors to prosecute their compatriots, however, is a risky practice. Regardless of the possible existence of future prosecution, the judge in the matter should at least move now to hold the prosecutors in contempt of court.

This is a case of large scale, unaccountable, and unconstitutional collusion between police and prosecutors. In 2011, Scott Dekraai shot his estranged wife and seven others.4 After he was taken into custody—and despite the fact that evidence against Mr. Dekraai was already overwhelming—jail officers arranged for Mr. Dekraai to be placed next to a notorious jailhouse snitch (“Inmate F”).5 Officers then secretly promised Inmate F benefits if he could elicit a confession. This planned solicitation of an inmate was an unconstitutional interrogation under Massiah v. United States.6

Deputy Public Defender Scott Sanders, in a 505-page brief, persuaded the judge that the placement of Mr. Dekraai was no accident and that local prosecutors must have known what the police were doing. The court found that the placement was part of a standard operating procedure at the prison to elicit confessions from defendants who should have been able to exercise their Sixth Amendment right to an attorney.7 For years, the prison had been operating a secret computer database tracking movements and placement of prisoners and known informants (called TRED). Prisons officials never disclosed the existence of these records in discovery, even when directly asked about them.8 When subsequently asked why those records were never handed over, one of the officials stated, “that’s the way we were trained.”9

Initially, the judge found that the DA’s Office was merely negligent in failing to uncover the illegal TRED program, despite the existence of a highly suspicious note in Inmate F’s file indicating that officials were in communication with him as a confidential informant. The judge allowed them to stay on the case without sanction. In the supplemental opinion authored after the TRED program was discovered, however, the judge reversed his earlier restraint, recusing the entire department from the case. He commented, “certain aspects of the district attorney’s performance in this case might be described as a comedy of errors but for the fact that it has been so sadly deficient.”10 To the judge, the prosecutors’ inaction in the face of consistent constitutional violations by the police illuminated a stark conflict of interest. This conflict, the judge held, would prevent the defendant from achieving justice.

The majority of prosecutors are decent, hardworking individuals who want to protect the community from violence and disarray. This must not blind us to the fact that some prosecutors use illegal tactics. These illegal actions—often performed in their zeal to do a good job—must be countered with an effective response by the justice system to protect the institutional and constitutional limits to the prosecutorial discretion. The OC prosecutors have undoubtedly been struck a major blow by being taken off this important case. That blow, however, is merely a public relations disaster. The question going forward is what will be the further actions taken against the office. While the prosecutors can be brought to court under a Section 198311 violation of the defendant’s civil rights or prosecuted for perjury and obstruction of justice, experience and reality demonstrate that these measures are extremely unlikely.12

The best action would be for Judge Goethals to hold the prosecutors in question in contempt and possibly send them to jail. Judges have the power to hold individuals in contempt of court when they have created a serious and imminent threat to the administration of justice.13 This does not allow judges to sanction lawyers for relevant, zealous advocacy.14 If a prosecutor is acting within the bounds of its legal obligations—even if it’s not “morally” correct—they are shielded from being held in contempt. The question, then, becomes whether prosecutors are under any duty not to use evidence they know was unconstitutionally retrieved.

While this question might seem to be an obvious “yes”, prosecutors have not been held to a duty to determine whether a certain piece of evidence was obtained unconstitutionally. Under the current paradigm of Fourth Amendment suppression, the judiciary has been considered—wrongly, this article posits—as the ultimate authority in combating the use of unconstitutionally gathered evidence.15 Under this view the prosecutor’s only obligation is the refrain from using evidence that a judge would bar under the exclusionary rule. Recent scholarship, however, criticizes this view and calls for a more active prosecutorial role.

In a 2014 article, NYU Law Professor Russell Gold makes a compelling case for why prosecutors have a constitutional duty to protect a defendant’s constitutional rights even when a court is not able to. Prior to the current era, the remedy for violations of these rights was a strong exclusionary rule—evidence deriving from any violation of a defendant’s Fourth Amendment rights had to be excluded from trial.16 The Supreme Court, however, in recent years, has narrowed this rule substantially.17 The Court now states that if a state official acted in good faith, but merely negligently relied upon unconstitutional evidence, the evidence may be introduced at trial.18 Gold’s article points out, however, that the nature of the Fourth Amendment protections hasn’t changed—only the judiciary’s ability to provide a legal remedy for violations of those rights.19 Therefore, the duty to protect the full breadth of a defendant’s constitutional rights must fall on the executive branch’s representative in the justice system: prosecutors. For grossly ignoring their duty to ensure the constitutional validity of their legal system, these prosecutors can and should be placed in contempt.

The need for such a ruling is clear. Confidence in prosecutors is at an all-time low in this country in the wake of Ferguson, Eric Garner, and thousands of other, less publicized cases. Evidence shows that people tend to obey legal systems they think are legitimate, not that they fear.20 Many believe that these cases prove that prosecutors cannot effectively oversee themselves or the police. Indeed, the perception that prosecutors are above the law has been a consistent complaint in the recent protests around the country.21 Ensuring the prosecution of DA’s who have clearly committed a constitutional violation would go a long way to shore up public support for the system and give breathing room to prosecutors who go to work every day committed to upholding the Constitution. Prosecutors must be in charge of criminal prosecutions in Orange County. Judge Goethals needs to ensure that they respect their full constitutional responsibilities.