SANTA ANA, Calif. – With the Orange County District Attorney’s Office being accused of using jailhouse informants to gain convictions, America Tonight has obtained audio of once-secret conversations between law enforcement and a jailhouse informant that threatens to unravel dozens of criminal cases, including some murder convictions.
The tapes were recorded as part of a jailhouse informant operation, which involved at least six inmates and may have lasted 30 years.
The Orange County District Attorney’s systematic use of informants first came to light in 2013. At that time, public defender Scott Sanders was preparing for the penalty phase of a case involving his client Scott Dekraai, a convicted mass murderer. Sanders found out that an inmate at the same jailhouse, Fernando Perez, had been used to gather information on both Dekraai and another client. Suspecting it wasn’t a coincidence Sanders started an investigation.
In January 2014, Sanders delivered the results of his investigation in the form of a 500-page court motion. The motion detailed law enforcement’s use of informants to gather confessions from dozens of inmates and accused deputies of hiding evidence and then lying about it.
The U.S. government is prohibited from using informants to gather information on defendants who have retained counsel; doing so violates their right to remain silent and the right to an attorney. But in court filings, Sanders claims the jailhouse informants in Orange County were acting as government agents, taking direction from law enforcement.
“Apparently, what has occurred here is that they have done exactly what’s prohibited,” said Erwin Chemerinsky, dean of University of California, Irvine School of Law.
Secret audiotapes now public
Sanders, who declined comment for this story, uncovered several previously hidden recordings between informants and their police handlers.
In these taped conversations from 2009, informant Oscar Moriel had a discussion with Santa Ana Police detectives David Rondou and Charles Flynn about what he knew regarding two unsolved murders.
In the first clip, Moriel said he could “grab spots” of his memory and “make it seem like yesterday” if detectives could “meet [him] halfway”.
Facing a third strike and a possible life term, Moriel asked for “options” from the detectives and from the Orange County prosecutors handling his case.
Rondou explained the process and said Moriel’s memory “better be good” when he gave his statement to detectives.
In a subsequent conversation with the same detectives, Moriel said he’s not in this for the money, but that it could help him once released. The detectives said that’s “something that can be looked at.”
Jailhouse informants are notoriously unreliable, because they often make things up to get reductions in their own sentences, Chemerinksy said.
“This is why the use of jailhouse informants should be limited to what the Constitution allows,” he said. “It’s also why it’s so troubling the Orange County DA’s Office systematically devised a policy and implemented it to undermine the Constitution.”
In March, Orange County Superior Court Judge Thomas Goethals, citing misconduct related to the informant operation, removed the entire Orange County District Attorney’s Office from the Dekraai case. It was an unprecedented move and put the Dekraii case in limbo.
In what has been seen as a retaliatory move against Judge Goethals, prosecutors began to invoke so-called “170” motions – infrequently-used court actions in California that allow any lawyer to disqualify a judge from presiding over a case. Since Goethals first heard the misconduct allegations in January 2014, Orange County prosecutors have excluded Goethals from more than 100 cases. In comparison, Goethals was removed from just 18 cases between 2005 and 2013, according to court records.
The Orange County District Attorney’s Office declined comment for this story, but has said in the past the actions toward Goethals are not coordinated.
The use of jailhouse informants should be limited to what the Constitution allows.
Dean, University of California, Irvine Law School
Sanders stated in court filings that dozens, perhaps hundreds, of cases could be affected by the use, or misuse, of jailhouse informants.
Since the debate over informants went public, several defendants have already gone to court asking for new trials. One of them, Henry Rodriguez, was convicted of murder in the case of a friend’s girlfriend in 2000. According to Rodriguez’s attorney, the only evidence used to convict Rodriguez was the testimony of a jailhouse informant.
James Crawford, Rodriguez’s second attorney, suspected the informant was a government agent planted in Rodriguez’s cell and given direction by deputies. He requested records on the informant’s movements but was told by county attorneys that such records didn’t exist. Ten years later, those records, called TRED records, sit on his desk. They show the informant was a veteran, and had worked with law enforcement on several cases. Crawford says the use of this informant was illegal and violated his client’s right to remain silent.
“The prosecution concealed this exculpatory information from not just my case, Henry Rodriguez, but hundreds, if not thousands, of other defense attorneys and defendants,” he said.