An American Civil Liberties Union attorney spearheading a civil lawsuit focused on the confidential informant program in Orange County criticized District Attorney Todd Spitzer Friday for sending a letter to appellate court justices before they overturned a lower court’s dismissal of the corruption claim.
In a letter dated Aug. 19, the ACLU was informed that two days earlier, justices with the Fourth District, Division Three, received copies of an internal probe by Spitzer’s office regarding the prosecution of Scott Dekraai, the worst mass killer in the county’s history, which resulted in the so-called snitch scandal.
The ACLU was told the justices did not open or read the report. Since it was considered “ex parte communication,” the justices informed the other attorneys involved in the civil litigation, which seeks to end the use of confidential informants and other reforms.
The ACLU objected because the letter was sent before the justices handed down a ruling in an appeal of a dismissal of the ACLU’s lawsuit.
“The appellate justices themselves called it improper ex parte communication,” said ACLU attorney Somil Trivedi.
Attorneys involved in litigation are prohibited from corresponding with a judge in the case outside of the judicial process.
Spitzer, in a letter dated Sept. 1 to the attorneys in the ACLU suit, defended what he had done and said he was aware of the rules regarding ex parte communications..
“On Aug. 10, my office distributed courtesy copies of an investigative report following up on the findings of the Dekraai opinion… which was decided on Nov. 22, 2016,” Spitzer wrote. “Copies of this courtesy report were sent to a number of governmental agencies and courts as a courtesy including every member of the 4th District Court of Appeal, Division Three. The sending of the courtesy copy of the report was not related to the case of (the ACLU’s lawsuit) and was not intended in any way to be an ex parte communication. I apologize for any confusion.”
Trivedi said Spitzer was “trying to have it both ways… This was in the public record, so no big deal. So if it was no big deal, why send it to a bunch of appellate justices when there was a case about that subject matter going on? I don’t think he should be able to weasel out of an ex parte process… by saying it was a public record and I sent it to everybody.”
Trivedi said he was more concerned that Spitzer did not acknowledge what he sent was ex parte communication.
“He didn’t learn his lesson at all. That’s the most concerning part,” Trivedi said. “You have a top law enforcement official in Orange County basically ignoring a judicial conclusion, just like he ignored the judicial conclusion in Dekraai that there was an illegal informant program.”
Trivedi noted that attorneys for the county continue to argue that there was no illegal informant program.
“He keeps asserting there’s nothing to see here,” Trivedi said.
Spitzer ran on a reform agenda, criticizing his predecessor Tony Rackauckas, whose office was booted from prosecuting the Dekraai case because of issues raised with confidential informants.
“He played the politics perfectly, frankly, and tapped into the voters’ anger over that program, defeated the incumbent and then stepped right into that incumbent’s shoes,” Trivedi said.
The attorneys suing the county dropped any requests for further evidence of ex parte communications after Spitzer said there were none.
A panel of Fourth District Court of Appeal justices on Aug. 12 overturned Superior Court Judge Glenda Sanders’ dismissal last year of the lawsuit on the grounds that the plaintiffs lacked legal standing to bring the legal action. She also raised concerns about separation of powers issues.
But the panel of justices found that the plaintiffs, which include Bethany Webb, whose sister was killed and her mother wounded in Dekraai’s Salon Meritage murder rampage, have the legal standing to sue local law enforcement over the program.
The lawsuit alleges that sheriff’s deputies recruit snitches among inmates and move them around to elicit confessions or incriminating statements whether they have an attorney or not. It is illegal for an agent of the government to question a defendant represented by legal counsel, but it is OK for an informant to “overhear” incriminating statements and pass them on to investigators as long as they are not given perks for doing so.
In the internal report, Spitzer laid much of the blame for the botched Dekraai prosecution on two prosecutors who have since retired.
The ACLU lawsuit has been sent back to the lower court for a trial.
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