Grand Jury Criticizes D.A. on Informants

TIMES LEGAL AFFAIRS WRITER

The Los Angeles County district attorney's office for many years tolerated suspected perjury by jailhouse informants as a way to win murder cases, the county grand jury has concluded in a report to be made public today.

The grand jury said that, by doing so, the district attorney's office "failed to fulfill the ethical responsibilities required of a public prosecutor."

The grand jury also criticized the Sheriff's Department, which runs the county jails, for improperly placing defendants awaiting trial in cellblocks with longtime informants, when it should have known the resulting "confessions" would be phony.

However, the grand jury concluded its yearlong investigation into the misuse of jailhouse informant testimony without answering the question of whether law enforcement officials actively solicited informants to lie, as some informants told the grand jury.

On this issue, the grand jury threw up its hands, declaring it did not know whether to believe the informants.

"Whether or not the informants' testimony (before the grand jury) is believed, the conclusion must necessarily be disturbing," the panel said in a 153-page report obtained by The Times. "Either egregious perjurers have been used as prosecution witnesses or law enforcement officials committed shocking malfeasance."

The grand jury returned no indictments. It did not call for a bar on the use of testimony by jailhouse informants. Nor did it take a position on whether they should be given rewards, which in the past have ranged from extra food to freedom. However, the report did criticize the release of violent criminals in return for their testimony.

"In the interest of proper law enforcement and prosecutions, the prosecutor must have the discretion to determine what consideration is appropriate for assistance," the report said. "Prosecutors rightfully point to serious cases in which informants' testimony was of major significance in successful prosecutions."

The only such case the grand jury cited was the "notorious Manson family case," declaring that the "first breakthrough in (the) case was credited to (a) jailhouse informant."

The grand jury, however, urged full disclosure of informants' rewards to judges and jurors who have to evaluate their credibility.

It said it found that full disclosures were not made in an unspecified number of the 150 to 250 cases in Los Angeles County from 1979 to 1988 in which jailhouse informants testified.

Informants were often given rewards after the trials at which they testified concluded. That meant jurors did not learn of the rewards during the trials and, therefore, were not given a full picture of the informants' motives to lie, the report said.

The grand jury described its inquiry as "the most comprehensive . . . into this topic that has ever been conducted."

The report covered much of the same ground as a series of investigative articles on the jailhouse informant system that appeared in The Times starting in late 1988 and continuing until early this year.

This common ground included assertions by informants that they used a variety of ploys to gather confidential information about a crime so they could persuasively claim that a cellmate confessed, chiefly in murder cases; admissions by jailers and detectives that the Sheriff's Department sometimes placed known informants next to defendants; and disclosures that the district attorney's office repeatedly relied on informants whom top administrators and some other prosecutors knew to be unreliable.

Although the grand jury did not bring criminal charges of its own against anyone, it said that it was referring "several matters that suggest provable criminal cases to the district attorney for consideration."

The grand jury did not say what type of cases these were, but the context in which they were mentioned suggested that they involve possible perjury by informants, rather than possible criminal misconduct by law enforcement officials.

There was no suggestion that the grand jury sought to determine whether wrongful convictions had resulted from perjured testimony.

"The purpose of this grand jury investigation has not been to make judgments in particular cases," the report said. "Rather, the focus has been to conduct an overall inquiry as to how and why the system went wrong, and to recommend policies and procedures that will prevent or curtail the emergence of such practices in the future."

The grand jury made two formal "findings." They were that:

"The Los Angeles County district attorney's office failed to fulfill the ethical responsibilities required of a public prosecutor by its deliberate and informed declination (refusal) to take the action necessary to curtail the misuse of jailhouse informant testimony."

"The Los Angeles County Sheriff's Department failed to establish adequate procedures to control improper placement of inmates, with the foreseeable result that false claims of confessions or admissions would be made."

The grand jury also criticized the office of the California attorney general for inaction on numerous occasions since 1979 when confronted with evidence of "apparent abuses concerning jailhouse informants," including claims of perjury.

It also criticized "certain judges" who "exhibited an unusual willingness to rely on the reputation of a member of the district attorney's office, rather than on factual evidence before the court" in acceding to prosecutors' requests for "apparently improper temporary releases from incarceration."

The report covered the period 1979 to 1988, when John K. Van de Kamp, Robert H. Philibosian and Ira Reiner served as the district attorney; Peter J. Pitchess and Sherman Block served as sheriff, and George Deukmejian and Van de Kamp served as attorney general.

However, no individuals--neither elected officials nor lesser functionaries--were criticized by name in the report, which was prepared by the grand jury's special counsel, Douglas Dalton, a longtime Los Angeles criminal defense lawyer.

Dalton succeeded retired California Supreme Court Justice Otto Kaus as special counsel. Kaus started the $500,000 investigation but was dropped by the grand jury late last year.

All told, 120 witnesses testified before the grand jury. They included prosecutors, police and sheriff's detectives, jailers and defense attorneys. Hundreds of others provided information informally, the report said.

The grand jury investigation began at the request of two defense lawyer groups, California Attorneys for Criminal Justice and the Los Angeles Criminal Courts Bar Assn.

The defense lawyer requests were an outgrowth of a scandal that broke in October, 1988, when a longtime informant, Leslie Vernon White, demonstrated for sheriff's officials that he could fabricate a convincing confession from a murder suspect he had never met. During the demonstration, White used a jail telephone and posed as a law enforcement officer to get inside information on the case. White later told The Times that he committed perjury 12 times.

The cases of possible criminal wrongdoing that the grand jury referred to the district attorney's office were mentioned only in a footnote to the report, in a section devoted to suspected perjury by informants.

The grand jury noted that the district attorney's office has never prosecuted an informant for perjury and stated, "In the face of the extraordinary number of such apparent instances of perjury and false information . . . surely some cases would have warranted successful prosecution. Such prosecution could have provided a substantial deterrent (to further perjury)."

The grand jury said it took testimony from six informants--five of whom admitted perjuringthemselves or providing false informantion to law enforcement. Specially hired grand jury investigators interviewed 19 other informants.

The grand jury noted that courts have "sometimes lacked adequate factual information to fully realize the potential for untrustworthiness which is inherent in (jailhouse informant) testimony because of the strong inducements to lie or shape testimony in favor of the prosecution."

As an example of court credulity, the report cited a 1984 California Supreme Court decision that declared that prosecutors are not legally required to corroborate the word of a jailhouse informant because informants have no "direct, compelling motive" to lie.

Among informants, the grand jury found, there is a "widespread belief that law enforcement officials solicit fabricated testimony," sometimes directly and sometimes through a variety of more subtle means, such as leaving an informant in a room with investigative reports concerning another inmate so he can gather inside information about the other inmate's case.

While there is no evidence in the report that the grand jury questioned law enforcement officers about specific allegations of this sort, the grand jury did attempt to investigate informants' accounts of being placed next to targeted defendants by sheriff's deputies in charge of inmate housing.

"The Sheriff's Department denies such a practice has ever existed," the report said. "However, the grand jury received evidence which indicated the placing of inmates for the gathering of information has occurred."

The grand jury also reported on an attempt within the Sheriff's Department to suppress the jailhouse informant scandal.

It said that in early 1988, a sheriff's deputy told his superiors about claims from three informants that they were getting information from law enforcement sources that they could use to fake confessions.

However, no action was taken until months later when other deputies learned that informant White was writing an article for California Magazine in which he planned to expose some informants' practices.

A sheriff's sergeant invited White to demonstrate his ability to fake a confession, which he did. The Times then disclosed the demonstration.

In the district attorneys' office, the grand jury found, senior management had repeatedly refused to establish a central index on informants to keep track of their offers to testify and their reliability, despite requests to do so from subordinates beginning in 1986.

"Neither a defendant's rights to know about information affecting the credibility of an informant, nor a prosecutor's obligation to disclose such information to a defendant was ever mentioned during the (district attorney management) discussion of the pros and cons of (maintaining) an informant index," the grand jury said.

Instead, senior management was concerned that, if it established an index, it might have to disclose it to the defense.

In addition, one management official testified that an informant index was regarded as a bad idea because it might lead to discovery by defense attorneys of what he believed was a "fairly common practice" of the Sheriff's Department in planting informants next to suspects when "the amount of available evidence that we can present in court is a little on the thin side and a statement would certainly be helpful."

Instead of establishing an index, the grand jury reported, top district attorney officials decided to hold a Saturday seminar for prosecutors on how to deal with informants.

"The seminar did not appear to address ethical issues relating to . . . the defendant's entitlement to know the number of times the informant testified as a prosecution witness and the benefits he received," the grand jury said. ". . . Rather, the seminar appeared to focus on the use of jailhouse informants as it relates to winning cases."

To illustrate the district attorney's use of informants known to be unreliable, the grand jury told the story of White, who in 1979 flunked a polygraph test as a would-be informant for the Long Beach police and told the district attorney's office that some of its prosecutors were setting up suspects and paying off witnesses.

White then filed two lawsuits alleging that his complaints weren't being taken seriously. The attorney general's office tried to investigate but got nowhere when White changed his story just before he was to have taken a polygraph. The Department of Corrections weighed in with its assessment that White was "a real flake."

But, the grand jury said, White's "career as an informant was just beginning to blossom."

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