Editorial: Where is Xavier Becerra on the Orange County jail snitch probe?

The reckless use of jailhouse informants by the Orange County district attorney’s office and the Orange County Sheriff’s Department ruined numerous criminal prosecutions and substantially undermined faith in the county’s criminal justice system. For four years, the state attorney general’s office has been investigating how that came to pass, and Californians are well within their rights to expect Atty. Gen. Xavier Becerra to produce a report on his findings and a set of recommendations for repairing the damage. We ought to have a final accounting of which prosecutors and deputies set up which snitches in which jail cells to obtain incriminating evidence against which already charged defendants, in effect duping them into testifying against themselves without their attorneys present.

Or perhaps the attorney general considers that too much to ask, given that his office’s probe — begun in 2015 under Kamala Harris before she left to take her seat in the U.S. Senate — was a criminal investigation and therefore limited in scope. In that case, Becerra at least ought to come forward with an account of his findings.

At this point, though, we’d consider it a step forward if he just said anything about the matter at all.

Instead, all we’ve gotten from Becerra’s office on the jail-snitch scandal is a deputy attorney general’s surprise statement in court earlier this month that the probe has been closed. Becerra hasn’t provided any details or responded to requests for comment.

So in the end, it’s not clear just what, if anything, the California attorney general did to get to the bottom of the fiasco.

Now Orange County Dist. Atty. Todd Spitzer is starting his own investigation, and good for him. He ought to be able to find out how his own office (under his predecessor, Tony Rackauckas) contributed to a pattern of misconduct that led to a number of otherwise valid criminal prosecutions being thrown out. Of course, there’s a built-in conflict in investigating one’s own office, and it could cut in either direction: Critics might wonder whether Spitzer was being less than thorough in an effort to protect his troops, but there’s an equal concern that he could be overzealous, given the fact that the scandal occurred under Rackauckas, Spitzer’s longtime adversary whom he defeated late last year.

But with the radio silence from Becerra’s office on an issue of fundamental importance to the criminal justice system in Orange County, what else can he do?

The breadth of the jailhouse-informant program was revealed amid the partially botched prosecution of Scott Dekraai, the confessed killer of six women and two men in a 2011 mass shooting at a Seal Beach hair salon where his former wife worked.

Dekraai ultimately pleaded guilty. But in the penalty phase, defense attorney Scott Sanders charged that sheriff’s deputies had housed his client with an informant in an attempt to improperly obtain statements that would support a death penalty. Subsequent testimony revealed a long-running program by prosecutors and sheriff’s deputies to improperly elicit statements from jailed defendants.

Use of undercover jailhouse informants is a bad practice but it is legal — except when the defendant has already been charged, and the snitch actively tries to elicit the statements.

Orange County sheriff’s deputies gave snitches incentives to elicit incriminating statements. Prosecutors are alleged to have used the information without disclosing to defense lawyers how they got it — a violation of the 6th Amendment of the Constitution.

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Because of prosecutorial misconduct, Orange County Superior Court Judge Thomas Goethals took the death penalty off the table for Dekraai. Dozens of other cases have been affected as well.

No prosecutors or deputies have been disciplined for misconduct, at least as far as we know. It appears none will be prosecuted — at least not by Becerra.

There remains a federal investigation. Spitzer said he had turned over evidence in the snitch scandal to the U.S. Department of Justice.

Meanwhile, what has Becerra been doing? He leads an office that should be at the forefront of issues of utmost importance to Californians: justice system integrity, law enforcement accountability, prosecutorial misconduct. When local agencies fail or fall short in prosecutions or investigations, the state attorney general should stand ready to hold them to task. This time, it’s the attorney general who appears, so far, to have fallen short.

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