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As predicted, the use of an informant network by District Attorney Tony Rackauckas’ office in Orange County, California, is continuing to cause upset following revelations that prosecutors have been withholding Brady material related to the informants in numerous high-profile murder cases.

Law enforcement and prosecutors in Orange County have been planting informants in jail cells with defendants who are awaiting trial and then using the testimony of those informants against them, all the while withholding information relating to the criminal histories of those informants and their expectations of leniency in exchange for giving testimony. We first wrote about the scandal, which broke during the evidentiary hearing in Scott Evans Dekraai’s murder case earlier this year, here. Not only would the withholding of such information violate Brady, but it may also fail the state’s obligations under Giglio and Napue to turn over impeachment evidence and to correct false testimony (see Defining Misconduct).

DA Rackauckas had no legs left to stand on last week after it was discovered that the state had suppressed “voluminous records” of Brady material in the case of Isaac John Palacios, who was facing two gang-related murder charges. Judge Patrick Donahue dismissed one of the murder charges and signed off on a plea to the second charge that now has Palacios out on probation. The Voice of Orange County reports:

After deploying two of their long-time informants, prosecutors and law enforcement officers withheld voluminous records from Palacios’ defense attorney, Dekraai’s attorneys said in court records — including purported confessions to both murders.

“The misconduct by the Palacios prosecution team that was identified in the Dekraai hearing undoubtedly was some of the worst violations of a defendant’s constitutional rights that we have seen,” said Scott Sanders, Dekraai’s lead defense attorney.

As the Voice of Orange County points out, three years time served and a 5 year probationary period is an extraordinary outcome for a defendant who was initially facing the death penalty. The collapse of the two murder charges against him and the sanction of prosecutors in the Dekraai case drives home just how serious the allegations against Rackauckas’s office are. In Dekraai, the result of the sanction was that the judge excluded the state’s informant testimony from the penalty phase of the trial altogether.

And yet another case was dismissed for the same reason last week. Joseph Martin Govey had charges against him of attempted murder and solicitation of murder dropped after his attorney demanded that the prosecutor turn over evidence about the informant she intended to use. Govey’s attorney told the Voice of Orange County:

“It is part of a pattern in the District Attorney’s Office, whereby they are being unethical by not complying with the constitutionally mandated evidence discovery requirements,” said Garcia.

“What is very disturbing is that the whole district attorney management teams knows about this. They are behaving unethically. How corrupt can the office be?”

Garcia’s question is a fair one. So far, all that Rackauckas’s office has appeared to do to remedy these violations is judge shop to avoid further scrutiny. Garcia alleges that the DA’s office would rather drop charges in her client’s case than have further cases exposed through the discovery of informant-related information:

There are court records showing the four informants in the Govey case are involved in multiple other prosecutions, where the evidence also should be disclosed to defense attorneys, Garcia noted.

“If the other cases are given this information, it can open a can of worms, they don’t want to open,” said Garcia, referring to the possibility that the dispute over these disclosures could produce new evidentiary hearings like the one in Dekraai.

For a thorough account of the state’s obfuscations in Govey and refusal to produce discovery for more than 400 days, see this post by the OC Weekly. Author Scott Moxley summarizes the prosecution’s insufficient responses to the spate of discovery violations surfacing in Orange County as follows:

Under attack all year by Assistant Public Defender Scott Sanders, who’d revealed extensive government cheating in high-profile gang and murder cases, OCDA prosecutors have spent 2014 offering lame, ridiculous or downright dishonest explanations for not surrendering exculpatory evidence to their courtroom opponents. For example, veteran Deputy DA Erik Petersen insisted he didn’t understand what first-year law students know about discovery obligations. Homicide-unit director Dan Wagner claimed he hadn’t been interested enough to become thoroughly aware of collected evidence in his People v. Scott Dekraai, a pending death-penalty case involving Sanders. Still other prosecutors, too numerous to name, simply provided inaccurate statements that records didn’t exist or had been lost.

Rackauckas does not appear to have offered any public explanation for the withholding of documents in multiple cases, but if he keeps letting murder charges like the above drop, he won’t just have angry defense attorneys and judges to contend with. The victims’ families in the Palacios case were reportedly “stunned and upset” following the decision to plea the case out.

The Palacios, Dekraai, Govey and Vega cases mark four instances where Rackauckas’s prosecutors have failed to disclose evidence and paid for it. Since public defender Scott Sanders, who represents Dekraai, and Renee Garcia, who represents Govey, don’t intend to give up their investigations anytime soon, there’s likely much more to come out on the Orange County DA’s informant network. We’ll keep you posted.

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