'...follow the law or you’re no better than the crook.'
January 13, 2016 7:52 AM   Subscribe

Inside the Snitch Tank. After his arrest for the worst mass shooting in Orange County, CA history, Scott Dekraai poured out his feelings to a jailhouse informant. But instead of nailing down a death-penalty conviction against a confessed killer who was arrested with murder weapons in his car, the bugging of Dekraai’s cell touched off a legal storm over prosecutorial misconduct and the misuse of jailhouse informants which has delayed justice and drawn national attention. The Orange County Register has set up an extensive website to accompany their ongoing investigation and report.
posted by zarq (17 comments total) 16 users marked this as a favorite
 
Jesus christ. Framing a guilty man is still a miscarriage of justice -- and that's not even getting into the fact that the police frequently "know" who the guilty party is, only to find out years later that no, they don't.

How many times are we going to have to go through this shit before police and prosecutors in this country are taken to task?
posted by tocts at 8:42 AM on January 13, 2016 [2 favorites]


How many times are we going to have to go through this shit before police and prosecutors in this country are taken to task?

As long as the penalties are slaps on the wrist? This will keep happening. Because the rewards for a successful high profile prosecution are going to keep incentivizing this behavior.

You want to fix this? Make it so prosecutors caught pulling this shit face automatic disbarrment. Perhaps if their livelihood is at stake, they'll start reconsidering this bullshit.
posted by NoxAeternum at 9:02 AM on January 13, 2016 [11 favorites]


Rackauckas was there, along with various judges and lawyers, Herman remembered. “When someone said, ‘Kill all the gang members,’” the attorney recalled, “various not-to-be-named judges stood up and applauded.”

Orange County, ladies and gentlemen. Stay classy, OC.
posted by Talez at 9:03 AM on January 13, 2016 [1 favorite]


This is an amazing and necessary piece of journalism. Part of me feels very uneasy about the framing, though. I wish we didn't have to have a monster that absolutely must be punished to feel something about this case. The criminal justice system at this point isn't about unmitigated monsters that prosecutors fail to put in prison. It's about a whole lot of people, many of whom are just not very nice, whom prosecutors succeed in jailing regardless of their guilt or innocence.

Because: most of the prosecutors in the United States are pretty much exactly the same as the OC authorities. They aren't as blatant about it, maybe, but they're the same corrupt system. The difference? They actually manage to jail everyone the public doesn't like - so we never complain about it. And as soon as OC authorities manage to put the unpopular people in jail, by hook or by crook, no one will care how they do it.

This will never get any better until the public actually seeks justice for the innocent over punishment of the wicked. We've really gotten to a point in this country where we can only choose one of the two, and we have to choose the former rather than the latter. Six years ago, Samuel Alito was worried that the release of 46,000 California criminals ("the equivalent of three Army divisions") because of overcrowding would lead to "a grim roster of victims." But even though they've started releasing prisoners, that hasn't happened at all. And even if it did happen, it would be better than keeping even a thousand innocent people in jail. We need to accept that the crime rate will go up – we need to embrace that – and let the crime rate go up, accepting that sacrifice as necessary in the name of justice.
posted by koeselitz at 9:19 AM on January 13, 2016 [4 favorites]


Also, let me just say that Brady doesn't go far enough. We need full file disclosure laws - the prosecution needs to be required to surrender their full case file to the defense, period.
posted by NoxAeternum at 9:47 AM on January 13, 2016 [4 favorites]


We need to accept that the crime rate will go up – we need to embrace that – and let the crime rate go up, accepting that sacrifice as necessary in the name of justice.

The entire system needs to be rebuilt. Jailing innocents is only part of the problem. There are plenty of people in the system who did commit the crimes they were jailed for, and a greater effort needs to be prevent their violent abuse and torture, as well as and recidivism, which is sky-high. So, we need sentencing standards that match crimes committed. Humane treatment of (and living conditions for) inmates, not abuse. More effort put into giving inmates a chance to re-integrate when they are released, including job training and placement. Etc,.
posted by zarq at 10:17 AM on January 13, 2016 [4 favorites]


I used to work at the OC Register. It's a crappy-ass hometown paper with a) people that weren't good enough for the LA Times, b) libertarians with BMWs, and c) people that somehow landed cushy positions and never left through sheer force of inertia. But ... every now and again, they hit one out of the park. They're the stopped clock that's right twice a day.
posted by Cool Papa Bell at 11:01 AM on January 13, 2016 [1 favorite]


Also, let me just say that Brady doesn't go far enough. We need full file disclosure laws - the prosecution needs to be required to surrender their full case file to the defense, period.

Does this mean the workproduct and attorney-client information? If so, does the defense have to as well?
posted by Ironmouth at 11:40 AM on January 13, 2016


What does that even mean for a criminal trial? How do you define 'the people' in such a way that excludes exactly one person, the defendant?
posted by pwnguin at 11:52 AM on January 13, 2016


Serious question, who exactly would be the client of the prosecution for the purposes of attorney-client privilege? Aren't prosecutors agents of the state?
posted by cosmic.osmo at 12:13 PM on January 13, 2016 [2 favorites]


Ran across this during the post in the blue about Kozinski's recent publication: the full video is worth watching, but here is the bit where the judges start to push back on the state's counsel. My favorite bit: "I agree, your honor, that does not good!"
posted by pwnguin at 1:04 PM on January 13, 2016 [1 favorite]


I love that video, but nothing happened from it (that I can find) other than the appeal being dropped.
posted by rhizome at 1:42 PM on January 13, 2016


Vienna is still in place, Spira disappeared, Vinegrad is in private practice. Cold soup.
posted by rhizome at 1:48 PM on January 13, 2016


The wiggle room that prosecutors have reminds me of the wiggle room that cops have — according to current laws and procedures in most of the US, for them to have any chance of being criminally culpable you’ve got to prove that they acted with malicious intent. That’s far too high of a standard. All they have to do is not act like comic book villains and they’re able to pass off misconduct as a mere oversight rather than a purposeful decision.

Having read this, I’m now hoping that we can figure out new ways to give Brady disclosure some real teeth. My first thought was to adopt a strict “turn over everything every time or you can face criminal charges” standard, but if the standard is that strict, someone will inevitably fail to follow it due to actual carelessness (as normal humans are prone to suffer from). I don’t want a standard that strict both because (a) it will end up punishing people for not being perfect at their jobs, and (b) it’ll give some law-and-order Republican schmuck a way to strawman the argument that says that even guilty people should have fair trials.

The challenge, then — as with police misconduct — is how to distinguish actual mistakes from evil masquerading as a mistake. As a judge, either way you’d need to right the original wrong, but you’d want to incarcerate genuinely evil cops/prosecutors for some amount of time if only to prevent them from actively ruining other people’s lives for a while.

I think a few people in the Orange County D.A.’s office need to go to jail, as do a few deputies in the Orange County jail system. But I don’t have any idea on how to phrase the laws we’d need to write to prevent this from happening again. Luckily, there are people who are smarter than I am and also have legal training. I hope some of them read this article.
posted by savetheclocktower at 2:53 PM on January 13, 2016 [4 favorites]


The challenge, then — as with police misconduct — is how to distinguish actual mistakes from evil masquerading as a mistake. As a judge, either way you’d need to right the original wrong, but you’d want to incarcerate genuinely evil cops/prosecutors for some amount of time if only to prevent them from actively ruining other people’s lives for a while.

It seems like the way to do that is to have thorough investigations to determine if the harsh penalties are warranted or not or if there's a pattern of incompetence that should result in severe professional sanctions. The problem is that both prosecutors and police are the ones who typically conduct investigations, so there's a conflict of interest.

I think it would be a good idea to have an independent body of ombudsman tasked specifically with conducting those kinds of investigations and empowered to prosecute the wrongdoers. They should have blanket access to all police and prosecution records, and also assist defense attorneys in determining if they've been given everything they should have gotten.
posted by cosmic.osmo at 4:42 PM on January 13, 2016


according to current laws and procedures in most of the US, for them to have any chance of being criminally culpable you’ve got to prove that they acted with malicious intent.

Are you referring to local police activities customarily being assessed under the "reasonableness test," which comes from a Federal case? There's been a little blip on that radar of late.
posted by rhizome at 4:48 PM on January 13, 2016


The underlying problem I've seen is actually that prosecutors don't know what their ethical obligations are. Or at least, they state on the record as officers of the court that it's their office's position that things are not required to be disclosed at the time and in the manner that the statutes and case law and court orders clearly say they are. I suppose it's possible that they are lying, and that they really do know, but given what I've seen about how poor their training is and the mindset that is cultivated about needing to keep information from the defense because the defense is shady and will take advantage and so a little nondisclosure is the best way to win cases, I find it more plausible that their supervisors (probably also ignorantly) are training them that they're not required to make disclosures. (There's a great quote in one of the cases, I can't remember which one, where someone in the prosecutor's office says that he doesn't turn over any information to the defense until he absolutely has to because then manipulative defense attorneys will use it to try to get their clients acquitted. That's the mindset.)

And judges don't ever hold the prosecutors to any sort of account for failing to learn the law that applies to them or the ethical obligations of their chosen profession. At best, the line prosecutor in court that day gets a little talking to. And when the same prosecutor pops up in front of the same judge a couple months later making the same clearly wrong argument, the judge doesn't tell the prosecutor that he should have learned the law the last time this issue came up. Nope, at best, the "punishment" is that the trial gets continued so that the defense has extra time to deal with any new information that has come up. And that means that the defendant sits in jail (or under threat of prosecution) for longer, and the victims and witnesses are in limbo for longer, and the defense has to work twice as hard, all because the prosecutors can't be bothered to read or remember or follow a few dozen cases a year handed down by the appellate courts that tell them what the rules are.

Or they're lying, and they know exactly what the rules are, and choose not to follow them, and then lie to the court about why. I'm really not sure I know anymore. But I'm a defense attorney in some part because I'm optimistic about human nature, so I choose to believe that more of the prosecutors I meet are lazy morons than are lying criminals.
posted by decathecting at 12:18 PM on January 15, 2016


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