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Sometimes allegations in a lawsuit read like banal pulp fiction. Often they ring with the tenor of a dime novel—too contrived to be true. P.E.O.P.L.E. v. Rackauckas, a forty-page civil lawsuit filed in the Orange County (California) superior court on April 4, 2018, distinguishes itself from legal humdrum. Brought by the ACLU Foundation of Southern California on behalf of the plaintiffs, the lawsuit is not about money. It seeks an injunction to overhaul the Orange County criminal justice system that it alleges “is in disrepair and disrepute.” The complaint reads like a true crime story where the good guys are bad guys who employ other bad guys who conspire together to operate in a dark world where jailed detainees’ constitutional safeguards are abrogated in the name of justice.

Full disclosure: in 2003, my codefendant and I were prosecuted by the Orange County (California) District Attorney’s Office (OCDA), and that prosecution resulted in our convictions. As a result, I spent two months, postconviction, in the Orange County Jail (OCJ) before serving my prison term. I did not experience any of the conduct alleged against the prosecutors, as stated in the above complaint.

The Play

The lawsuit contains elements of a play. To keep the principal players and the allegations against them straight, I will use an outline of the structure of a two-act play to illustrate the case against the Orange County district attorney and the Orange County sheriff.

The Cast

  • Protagonist 1: Anthony J. Rackauckas, in his official capacity as Orange County district attorney, and his deputies.
  • Protagonist 2: Sandra Hutchens, in her official capacity as Orange County sheriff, and her deputies.
  • Complainants: P.E.O.P.L.E., an association of residents of Orange County, California, and criminal defendant detainees in the OCJ.

The History

The website of the ACLU of Southern California gives this background:

For more than thirty years, the Orange County district attorney’s office and sheriff’s department 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 present. Some informants use threats of violence, including murder, to coerce confessions and other information.

The complaint adds additional background:

For well over thirty years, the OCSD [Orange County Sheriff’s Department]—currently led by Defendant/Respondent Sandra Hutchens—has operated and continues to operate a secret jailhouse informant program with the full knowledge and participation of the OCDA—currently led by Defendant/Respondent Tony Rackauckas. Large numbers of “professional” informants, working at the behest of both agencies, have interrogated criminal defendants in violation of those defendants’ right to an attorney.

The Scene

All alleged conduct takes place in the central men’s OCJ facility in Santa Ana, California. The men’s and women’s jails “opened in November of 1968 and are traditional linear style (cell block and dormitory) facilities which house both sentenced and pre-trial maximum-security inmates. The Central Men’s Jail houses 1433 inmates.”

The Set

Here is a detailed description of the OCJ adapted from my memoir, Derailed: How Being a Lawyer Taught Me to Survive in Prison: There are no windows to the outside, giving a feeling of being lost. There are no clocks on the walls, and watches are contraband. Time passes on the set without shadows. The sun is gone. Weather is gone. The architecture is confusing—open vestibules, closed corridors, mazes designed to slow the movement of inmates. One gets the sense of being in a squalid hole in the ground.

Act 1, Scene 1

Point of attack[1] —voiceover: The mission statement of the OCJ (sardonic male voice):

The Orange County Sheriff’s Department’s Custody and Courts Command is dedicated to providing safe and secure facilities for those entrusted to our care. It is ingrained in our departmental character to uphold the law and is professionally delivered with the utmost integrity. We remain ever diligent to the citizens of the County of Orange with the confidence our staff remain professional in the performance of their duties and vigilant in their efforts to safeguard the community.

The Hope

The Prayer for Relief in the complaint, starting on page 36, suggests that the plot turns may result in fourteen specific, foreshadowed outcomes. Here are a few:

A.  A declaration [by the judge] that Defendants’ . . . policies, practices, or customs detailed [in the complaint] above violate the right to counsel as guaranteed by the U.S. Constitution and California Constitution by using informants to elicit incriminating information from criminal defendants after their right to counsel has attached.

B.  A declaration [by the judge] that Defendants’ . . . policies, practices, or customs detailed [in the complaint] above violate the Due Process Clause of the 5th and 14th Amendments to the U.S. Constitution and the California Constitution by using informants to coerce statements from defendants.

The requests carry on through page 39 and include

G.  A permanent injunction enjoining Defendants . . . from using informants to elicit incriminating information from criminal defendants after their right to counsel has attached.

H.  A permanent injunction enjoining Defendants/Respondents from coercing information from individuals in their custody by implicit or explicit threats of violence, including through the use of informants.

The Story Line

The story line is contained in the allegations of the complaint.

Conversations are heard between unidentified detainees, the context of which educates the audience about the concept of greenlighting that the OCSD and OCDA are employing within the walls of the jail:

 In one common ploy, called “greenlighting,” the informant [an OCJ detainee facing criminal charges himself] explains to the target [a detainee with pending criminal charges] that the informant is a member of a well-known gang, and that the gang has “greenlit” the target, meaning the target is to [be] attacked, and possibly killed, on sight. The informant further explains that the target has been “greenlit” because of the target’s involvement in the crime for which he is suspected. The informant then warns that the “greenlight” will be rescinded if, and only if, the target confesses to his role in the crime.

The next paragraph reveals the OCSD and OCDA as complicit actors in the informant’s subversive attempts to extract self-incrimination evidence against the detainee.

OCSD and OCDA are and have at all relevant times been aware that informants routinely used such threats to elicit information, but have done nothing to stop this practice. By turning a blind eye to the threats made by their informants, and by continuing to use these informants to gather information, OCSD and OCDA facilitate, encourage, and benefit from the continued violation of inmates’ constitutional rights.

Act 1, Scene 2

The story line continues with more allegations from the complaint.

In conversations between OCSD and OCDA agents, the audience learns the details of the alleged unlawful informant program in place at the OCJ for more than thirty years. The Marshall Project published a jailhouse snitch quiz on April 23, 2018, on the high-stakes market in information behind bars. Here are some findings from correct answers to quiz questions:

  • Jailers or prosecutors have given inmates the following as rewards for informing: $335,000 (paid to a pair of Mexican Mafia members as a reward for snitching on dozens of cases), years off a potential sentence, private rooms for sex with visiting guests, and “almost limitless Taco Bell runs.”
  • The Supreme Court has put some limits on the behavior of jailhouse informants. They are not allowed to follow instructions from the police about whom to target or question.
  • One hundred fifty people have been wrongfully convicted, at least in part, based on the testimony of a jailhouse informant.

We’ve reached the curtain line[2] of Act 1. Act 2 will follow in my next post.

Greenlighting: Jailhouse Snitches, The Play—Act 2

Act 2 will highlight actual cases (scenes) where the use of paid informants impacted the disposition of cases resolved or tried before judges and juries in the Orange County superior court. One of those scenes will detail the case of a 14-year old boy arrested for attempted murder.

In Act 2, the point of attack will be about state and federal laws surrounding paid jailhouse informants; this will also be the dénouement (climax). In the 14-year old boy’s case—as is true in all paid snitch cases—the OCDA and OCSD were required to relay exonerating information learned from jailhouse snitches to the boy’s attorney. However, they did not because of the risk of exposing the entire illegal informant program. The boy was an innocent child, yet he remained locked up for nearly two years.

I welcome your comments and observations.

Image courtesy of 123rf

[1] The point of attack is what the audience first hears or sees at the beginning of a play.

[2] The last line of the scene.

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