When public officials tasked with holding criminals accountable cheat to win a conviction, it can lead to reduced sentences — even freedom — for other convicted criminals, sometimes dozens of them. It can also give people who were wrongfully convicted a shot at redemption.
A new tally released earlier this month lists criminal cases against 57 Orange County defendants that were tainted as a result of official misconduct uncovered in the trial against the county's deadliest mass shooter, Scott Dekraai, who gunned down eight people at a Seal Beach salon in 2011.
In these cases, which include 35 homicide cases, charges against a defendant were dropped or lessened, or the defendant was granted a new trial. For five defendants, all charges were dismissed.
"Either an innocent person was charged or a guilty person went free, neither of which we like as a society," said Maurice Possley, senior researcher at the National Registry of Exonerations.
The tally was done by Scott Sanders, the O.C. assistant public defender who, nearly a decade ago, was largely responsible for exposing the county’s notorious "snitch scandal." The number of cases tainted by the scandal is much higher than previous, publicly released estimates. And Sanders said there could be many more.
"I'm not saying it's complete by any nature," Sanders said of the list. "It's not."
On top of the cases already impacted by the snitch scandal's long reach, Sanders outlined dozens more cases in a recent court filing that could be revisited because of new evidence of potential misconduct. That misconduct, Sanders alleges, was carried out by O.C. law enforcement officers and a former top prosecutor who is now a superior court judge.
"Whether those cases get justice is very much in question at this moment," Sanders told LAist.
The O.C. District Attorney's Office has yet to file a formal response to Sanders' allegations, which the public defender says justify dropping murder charges against one of his clients. An initial court hearing on the matter is scheduled for Friday in San Diego.
Here's how misconduct uncovered in one case can affect so many other, seemingly unrelated cases.
O.C.'s snitch scandal, a recap
The official misconduct uncovered in the Dekraai murder case, which has been confirmed by courts, internal investigations and the Department of Justice, was twofold: misusing jailhouse informants, commonly known as snitches, and hiding information about it from defendants.
The misconduct happened under the previous O.C. district attorney, Tony Rackauckas, who lost his re-election bid to current district attorney Todd Spitzer in 2018. Spitzer has implemented reforms and pledged not to tolerate cheating among prosecutors and law enforcement.
Rackauckas, who is now in private practice, did not immediately return a voicemail left on his cell phone asking for comment.
Harvard law professor Alexandra Natapoff said jailhouse informants are a common feature of the U.S. criminal justice system. But the way the system works, and its abuses, are often kept quiet.
"Every once in a while there's an enormous debacle … that shines a light not just on an individual jailhouse snitch, but the marketplace within that particular jail," she said.
That's what happened in the Dekraai case.
"Orange County, I think, can fairly be said to now be the poster child for the institution-wide jailhouse snitch scandal model," Natapoff said.
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Allegations of wrongdoing by OCDA prosecutors and deputies from the Orange County Sheriff's Department (OCSD) led to a federal civil rights investigation, which began in 2016. That six-year investigation ultimately concluded last year that the OCDA and OCSD "engaged in a pattern or practice of conduct … that systematically violated criminal defendants’ right to counsel."
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"The failure to protect these basic constitutional guarantees not only deprives individual defendants of their rights, it undermines the public’s confidence in the fundamental fairness of criminal justice systems across the county,” U.S. Assistant Attorney General Kristen Clarke wrote last year when releasing the results of the probe.
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The Department of Justice acknowledged that the OCDA and OCSA had "taken important steps" to remedy their longstanding misuse of informants. But it also said "these steps remain insufficient to fully reveal or redress the violations that resulted from the informant program, or to prevent similar violations from recurring."
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The DOJ said it was "critical" for Orange County to form an independent commission to review past prosecutions involving jailhouse informants in order to root out constitutional violations.
It's not illegal for authorities to use confidential informants — in or out of custody — to collect information. But once someone has been charged with a crime, the Sixth Amendment and subsequent court decisions guarantee them the right to have an attorney present during questioning by a law enforcement representative, including an informant secretly working for law enforcement. This is sometimes called the "Massiah" rule after a Supreme Court case.
Prosecutors must also turn over evidence from, and about, jailhouse informants used in a defendant's criminal case because it could help the defendant question the informant's credibility. Failing to do so violates the 14th Amendment and related court decisions, which require prosecutors to share with defendants any evidence they have that could help them prove their innocence. This is sometimes known as the "Brady" rule after another Supreme Court case.
The origins of the snitch scandal
In 2014, Sanders was defending Dekraai and another man, Daniel Wozniak, who was later convicted of double murder, when he began to uncover evidence of a secret informant program in O.C. jails.
The mass murder case against Dekraai should've been a slam dunk — he confessed to the crime soon after the shooting. But deputies decided to put him in a jail cell with a confidential informant, motivated by the possibility that Dekraai might try to plead insanity, according to a 2020 audit of the misconduct commissioned by Spitzer.
Then, prosecutors hid evidence from Dekraai's defense team about the informant and his work on behalf of law enforcement.
Dekraai pleaded guilty in 2014, but his sentencing was delayed for three years while the court investigated police and prosecutor misconduct in the case. Eventually, courts removed the entire Orange County District Attorney's Office (OCDA) from Dekraai's case and ruled that he couldn't be sentenced to death because of the misconduct.
After that ruling, Paul Wilson, whose wife Christy was among those killed by Dekraai, told LAist: “They’ve taken the largest mass murder in Orange County history and they have completely and utterly screwed that case up.”
News of misconduct spreads
As people in custody and their lawyers found out about the debacle, which was extensively covered by local and national media, some discovered their own cases involved the same methods and actors as the ones behind the misconduct in Dekraai’s case.
"If you're sitting in state prison, you're going to probably know about it, you're going to hear about it," Sanders said about early news of the snitch scandal. "People would write in. People would say, 'Hey, I want to have my case addressed.' All sorts of things like that."
Some realized that police officers or sheriff's deputies who testified in their cases were associated with misconduct in the Dekraai case, giving them grounds to question those officers' testimony.
Others came to suspect there might be evidence about informants used in their case that hadn't been turned over to their defense team.
Ramon Alvarez was among those who successfully challenged his conviction. He had been found guilty in 2012 of shooting a man in the head and then storing the body in a Santa Ana yard in a kiddie pool full of ice.
His murder conviction was dismissed last year after he presented evidence that a known jailhouse informant had lied in his case in exchange for an $11,000 check from the Santa Ana Police Department. An assistant district attorney had told the jury in Alvarez's trial that the informant had not been offered anything for his testimony.
A report last year from the Justice Department confirmed that failing to disclose the police department’s payment violated Alvarez's constitutional rights. Federal investigators also pointed to the prosecutor's motive. "The prosecutor conceded during our interview that he could not have successfully prosecuted Alvarez without [the informant]’s testimony," the DOJ investigators wrote, adding that "the only reason for the jury to believe [the informant], who 'had a rap sheet a mile long,' was that he was getting nothing for his testimony."
Snitch Scandal 2.0?
In some of the cases revisited because of alleged misconduct, O.C. sheriff's deputies refused to testify about their use of informants in order to protect themselves from self-incrimination. In other words, they pleaded the Fifth Amendment.
That's what led a judge to throw out a murder conviction against Paul Smith in 2021. Smith was convicted in 2010 for allegedly stabbing his childhood friend Robert Haugen to death in 1988 and setting his body on fire in Haugen's Sunset Beach apartment.
But a judge ordered a new trial after deputies refused to testify. Spitzer, O.C.’s district attorney, said at the time that top prosecutor Ebrahim Baytieh, who's now an O.C. Superior Court judge, failed to turn over evidence of the informant use to the defense.
Spitzer fired Baytieh in February 2022, but the former prosecutor went on to win election to the O.C. Superior Court a few months later, with endorsements from dozens of current and former judges and law enforcement leaders.
In a lengthy court document filed last month in Smith's case, Sanders now alleges that Baytieh was at the center of an "enormous web of deception" designed to cover up misconduct that helped prosecutors win cases while cheating defendants out of their right to a fair trial.
[Read our story: OC Snitch Case: Former Top Prosecutor, Now Judge, Accused Of Criminal Cover-Up By Public Defender]
"As detailed for the first time in this motion, Baytieh energetically worked to prevent both the informant program from being uncovered and evidence about specific informants being disclosed because he knew that these disclosures would make it more difficult to win particular cases," Sanders wrote.
Sanders also alleges that Baytieh — who had been lauded for his ethics at the district attorney's office and put in charge of determining which evidence prosecutors needed to disclose — was in fact among the worst offenders in the jailhouse snitch scandal.
A spokesperson for Orange County Superior Court has said the court and judicial officers are prohibited by ethical rules from discussing active cases. The district attorney's office did not immediately respond to a request for comment on the allegations.
In the motion, Sanders cites an additional 98 cases — 45 of them involving murder charges — where he said defense attorneys should have been handed evidence that could help their clients' cases.
Sanders argues that the misconduct is so egregious that the murder charges against Smith should be dropped.
How common is this kind of misconduct?
Possley, from the National Registry of Exonerations, said we don't really know how common it is for law enforcement officials and prosecutors to withhold evidence because it's a "hidden crime."
"What we know is that sometimes this stuff comes to light decades later," he said.
The National Registry of Exonerations found in a 2020 report that official misconduct, usually by police officers or prosecutors, contributed to false convictions in 54% of cases where the defendant was later cleared of charges. Black exonerees were more likely than white exonerees to have faced misconduct in their cases, especially when charged with murder or drug crimes.
The report found that hiding evidence that could have helped a defendant prove their innocence was the most common type of misconduct, having been involved in 44% of the cases they examined.
The researchers didn't specifically look at how often the use of jailhouse informants was tied to the misconduct. But a review of the registry's database turns up 164 out of 3,385 cases in which official misconduct and jailhouse informants played a role in a person's exoneration.
The registry, which has been collecting data since 1989, defines exoneration as being completely cleared of charges based on new evidence of innocence.
Not all snitch scandals have such a far reach
Orange County is certainly not the first place to get caught up in scandals over jailhouse informants. The problem goes way back and wide — across the country and right next door in Los Angeles.
L.A.'s own jailhouse informant scandal, which came to light in the late 1980s, blew up when a prolific informant named Leslie White showed authorities how he could fake a murder confession from a defendant in jail by impersonating officials to get information about a case. He would then finagle placement in the same room as the target so he could make a confession look plausible.
"Perjury has been committed," White wrote from jail in a 1988 Los Angeles Times op-ed. "That is a fact, not a possibility."
At the time, the Los Angeles District Attorney's Office said it planned to review every case in the preceding decade in which a jailhouse snitch testified to getting a confession.
A few years later, a grand jury investigating the scandal reported there were between 150 and 250 criminal cases in which jailhouse informants had testified over the previous decade. But it's unclear how many of those cases were reopened because of the damning revelations about informants in L.A. jails.
The National Registry of Exonerations includes nine people in L.A. County whose ultimate finding of innocence was at least partially due to official misconduct and the use of a jailhouse informant.
But unlike Sanders' list of cases affected by misconduct in the O.C. snitch scandal, LAist could find no record of the total number of cases impacted by L.A.'s snitch scandal, including cases in which sentences were reduced or a new trial was ordered.
Why the apparent difference? Possley said a big reason is Sanders. In L.A., there was no similarly determined defense attorney working to identify and revisit cases that may have been tainted.
"Sanders has had to swim upstream the whole goddamn time," Possley said.
He said there has historically been resistance among criminal justice officials to make the kinds of misconduct connections that Sanders has among disparate cases. "Because they know that there's a problem and that starting to tug on that string might unravel a pretty big piece of fabric," he said.
Sanders himself credits the O.C. public defender's office for giving him and other colleagues the time and resources to investigate the extent, and effects, of misconduct.
"Our office has encouraged and allowed me and others to do this work now for nearly a decade," Sanders said. "We're going into the second decade here. … And even with that, it's going to be difficult for all of the cases to get addressed in the way they should."
Natapoff, the Harvard scholar who's an expert in snitching, said the O.C. scandal is "both a cautionary tale of what happens when we leave the informant market unregulated and also a sign to us that without public defender offices and attorneys willing to spend the resources to uncover these kinds of scandals, we are likely never to learn about them."
A new conversation about criminal justice
Natapoff says informants are just one aspect of a system that has turned criminal justice into a marketplace.
"The people who run the jails understand that this market is robust, that information can be obtained — fabricated or not, as it were — and prosecutors understand that there is a machinery for producing information in the jails, which comes with its own baggage," she said.
Incarcerated people — and most anyone who's spent time in custody — also understand "that if they can produce information about a cellmate or someone else in the jail, that a reward will be forthcoming," Natapoff added.
One of the reasons the public doesn't hear more about the misuse of jailhouse informants, she said, is because the vast majority of criminal cases — about nine in 10 — end in plea deals, not trials.
"In effect, the informant market is the sort of under-the-table, black market version of our general plea bargaining system, which says we negotiate all cases, we negotiate all guilt," Natapoff said. "We almost never litigate the facts anymore."
In a system that runs on deals, she said, “law enforcement is incentivized, even systemically encouraged, to engage in all kinds of deal-making with suspects and defendants who might be useful to them."
But as informant scandals have emerged over the years, an increasing number of jurisdictions have enacted reforms, which Natapoff chronicles on her website.
Plus, she said, the conversation around criminal justice has changed over the years.
"Twenty years ago, we did not have the so-called bipartisan consensus that mass incarceration is a terrible idea. Twenty years ago, we were not having a conversation about Black Lives Matter or debtors' prison or all the conversations that we now have about the unfairnesses and the dysfunctions of our criminal system," Natapoff said.
Innocence projects have increasingly sprung up to help people who were wrongly convicted challenge their fate. On the institutional side, many district attorneys' offices, including Orange County, have opened "conviction integrity units" to investigate claims of innocence.
But because of the decentralized nature of criminal justice in the U.S., reforms tend to be piecemeal, Natapoff said, and uncovering misconduct is often up to outsiders.
"The criminal system itself does not divulge these facts," Natapoff said, referring to the big informant scandals of recent decades. "It was advocates, it was the innocence movement, it was journalism starting to chip away at the culture of secrecy."
