POLITICS
09/09/2016 06:43 pm ET Updated Dec 19, 2016

Orange County DAs Knew About Jailhouse Snitch Program Well Before They Admitted, Says Public Defender

County prosecutors have only recently acknowledged that a jailhouse informant program does indeed exist.
Gail Fisher via Getty Images

LOS ANGELES ― The scandal of a tainted jailhouse informant program that allegedly violated the rights of multiple defendants has been rocking Orange County for almost three years. In recent weeks, the Orange County Sheriff’s Department has denied such a program even exists ― even after the Orange County District Attorney’s Office admitted it following three years of denials. 

But a brief filed this week in a high-profile mass murder case has added yet another twist to the saga. According a transcript submitted by Assistant Public Defender Scott Sanders, members of the OCDA themselves allegedly knew about the jailhouse informant program years before their recent acknowledgement. Additionally, Sanders argues that they realized a key witness from the OCSD had lied during hearings when he denied that deputies “developed” jailhouse informants.

Sanders lays out a sequence of sworn testimony from law enforcement regarding the snitch network that casts significant doubt on the official stories of both agencies.

In 2015, OCSD Deputy Seth Tunstall ― who worked in a branch of the department called Special Handling, which specifically deals with inmates and jail informants ― was questioned during hearings involving the case of Scott Dekraai, a man who shot and killed eight people in 2011 in the deadliest mass murder in Orange County history.

Sanders confronted Tunstall with a 2013 statement the deputy made in a search warrant for a different case, which seemed to clearly admit that the OCDA operated a jailhouse informant program. Tunstall wrote that “during my employment with the Sheriff’s Department, I have cultivated, interviewed and supervised numerous confidential informants” ― language nearly identical to that used by OCDA in their recent statements acknowledging the jailhouse informant program.

Tunstall also clearly stated the responsibilities of his unit in the search warrant. “The Special Handling/Gang Detail is responsible for: Gathering intelligence on gang shot-callers representatives, gang rivalries in and out of custody, narcotic trafficking within the jail system, [and] developing confidential informants.”

Tunstall, though, would go on to disavow his earlier admissions that he’d cultivated and developed confidential informants in the jail, claiming instead that he had used the “wrong” words. At the time of the testimony, OCDA appeared to accept Tunstall’s explanation that he’d misspoken. Several members of the OCDA office were present to hear Tunstall’s account about informants, including Assistant District Attorney Dan Wagner, Senior Deputy District Attorney Scott Simmons and Senior Deputy District Attorney Howard Gundy. 

The veracity of Tunstall’s disavowal is called into question by later testimony of OCSD Special Handling Deputy Jonathan Larson, Sanders says. When asked if one of his jobs was to develop, identify and manage informants in jail, Larson said, “I would say yes.”

Larson also admitted that Special Handling deputies use specific modules to place informants and high value targets together in jail ― a fact that OCDA’s office says was only just revealed by the discovery of a secret cache of notes, but arrived almost a year and a half after Larson’s testimony acknowledging the practice.

Tunstall was later called out by Superior Court Judge Thomas Goethals, who said last year that the deputy “either intentionally lied or willfully withheld information.” In part due to the testimony given by Tunstall and other Special Handling deputies and also because of other allegations of misconduct, Goethals eventually ejected the entire DA’s office from the Dekraai case. And although he’s been strongly reprimanded, Tunstall has not been charged with perjury.

Thirteen months after that ruling, in April 2016, a trove of secret notes kept by sheriff’s deputies about inmates and jail informants shined new light on the informant program. The notes, whose existence was only revealed recently, were recorded from September 2008 to January 2013. 

Two months later, after years of denials, the OCDA’s office finally acknowledged that an informant program does indeed exist ― although they claimed to have just discovered it for themselves recently. They also acknowledged that sheriff’s deputies had actively “cultivated,” “recruited and utilized” informants and rewarded them in exchange for information. 

But Sanders, pointing to Tunstall’s earlier search warrant affidavit, derides in his brief the idea that it took until 2016 for a “shocked” OCDA “to discover a vibrant jailhouse informant program, and that deputies running it actually documented their daily contact with informants ― accomplishing all of this right under the noses of unsuspecting prosecutors.”

Sanders also cites newly discovered testimony by Tunstall from a trial involving the brutal 2006 jailhouse murder of inmate John Derek Chamberlain.

During the 2011 Chamberlain trial, Tunstall was specifically asked by an OCDA prosecutor if he developed informants in the jail facility where he worked.

“Yes,” Tunstall told Assistant DA Ebrahim Baytieh.

Why this bit of testimony was not later shared with Sanders, especially when Tunstall was called to the stand in the Dekraai case and disavowed his earlier statements, is unclear. Potentially compounding the problem for the OCDA is that Baytieh has been at the forefront of the office’s response to the scandal, speaking regularly at public forums to deliver his agency’s comments on the allegations. Baytieh himself, responding to accusations that prosecutors in his office are illegally using jail informants and intentionally hiding evidence, has called those claims “baloney.”

When asked about Sanders’ allegations, OCDA didn’t respond to the accusations made against Tunstall, but reiterated to The Huffington Post in a statement that they had no knowledge of the special handling deputies’ log about informants until OCSD turned over the documents to them. The office also did not comment on its alleged knowledge of illegal use of jailhouse informants. 

“We want to make it clear that we have always known about the legal use of informants, it’s a universal practice in law enforcement for many valid reasons,” the OCDA office said.

Despite the testimony, and even after the secret log’s discovery, the Orange County Sheriff’s Department has continued to deny that any informant program exists in the county. They say deputies don’t acquire information through the recruitment of informants, but rather that the information simply arises during informal conversations with inmates.

Still, with all this evidence from members of law enforcement, witnessed by prosecutors, the idea that an informant program doesn’t exist in the county jail, or that its existence might come as a recent surprise to prosecutors, is preposterous, Sanders argues.

Sanders has been saying since 2013 that a tainted snitch network in county jails has existed in secret for decades. In a series of blockbuster motions, the defense attorney unearthed damning evidence pointing to the program’s existence, alleging that county prosecutors and police have violated multiple defendants’ rights by illegally obtaining and sometimes withholding evidence gleaned from jail informants. His discoveries have led to multiple murder cases in the county unraveling, even resulting in some accused murderers having their sentences vacated

Law enforcement authorities use informants to help bolster a case — a tactic that’s perfectly legal, even when the snitch receives something in exchange. But Sanders alleges that in some Orange County cases, informants held recorded and unrecorded conversations with inmates who were already represented by lawyers, which violates an inmate’s right to counsel. Prosecutors then allegedly took damning evidence gathered by the informants and presented it in court, while withholding evidence that could have been beneficial to the defense — which is a violation of a defendant’s right to due process. 

It remains unclear exactly how many cases in the county may have been affected by tainted informant evidence, but Sanders has argued that every case involving a jailhouse informant in Orange County over the last 30 years deserves to be re-examined.

Orange County District Attorney Tony Rackauckas has maintained that no one in his office intentionally behaved inappropriately in relation to the jailhouse informant program. 

This story has been updated to include comment from OCDA.

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