A year and a half after an Orange County judge publicly accused two jailers of dishonesty — and a year after those jailers took the Fifth to avoid testifying in criminal court — the Sheriff's Department has not disciplined them, the agency says.
Instead, the Orange County Sheriff's Department has allowed deputies Seth Tunstall and Ben Garcia to remain on active duty in the county jail system. Both deputies enjoy six-figure salaries, boosted in recent months by a raise.
Tunstall, an 18-year veteran, works at the Theo Lacy jail in the city of Orange, and Garcia, a 14-year veteran, in the transportation division of the Intake Release Center in Santa Ana, according to Sheriff's Department records.
Orange County Superior Court Judge Thomas Goethals made his remarks about the deputies in March 2015, when he threw the district attorney's office off the prosecution of Scott Dekraai, who pleaded guilty to murdering eight people at a Seal Beach salon in 2011.
The judge said authorities had failed to turn over important evidence about the placement of jailhouse informants, one of whom had helped to gather incriminating statements from Dekraai.
Tunstall and Garcia belonged to a "special handling unit" that dealt with jailhouse snitches. But during lengthy testimony that Goethals held to investigate the misuse of jailhouse informants, both jailers failed to mention their deep familiarity with jailhouse computer logs that reflected the placement of informants.
The judge concluded that Tunstall and Garcia had "either intentionally lied or willfully withheld material evidence from this court."
In a recent interview, sheriff's spokesman Lt. Mark Stichter said the department cannot pursue possible administrative action against the deputies until the state attorney general's office completes its own investigation into the matter.
This explanation doesn't sit well with critics of Orange County Sheriff Sandra Hutchens.
"That argument is nonsense," said defense attorney Brian Gurwitz, a former prosecutor who has followed the jailhouse-informant scandal.
Gurwitz said Hutchens had the authority to put the jailers on leave but appears not to have done so because "she doesn't believe they've committed a crime."
Gurwitz pointed to Hutchens' remarks at a public forum in March. In response to criticism of her agency regarding the handling of jailhouse informants, Hutchens insisted that she has ramped up the training of jail deputies. "It's not a perfect system, but there has been no deliberate misconduct," she said.
Hutchens said the attorney general's office was investigating "a few of my deputies," and added: "Quite frankly, I think Judge Goethals went a little too far in his comments. And I believe an investigation will prove that to be true."
Gurwitz pointed out that in a case where a deputy was accused, say, of murder, the sheriff would properly place the deputy on leave even as a criminal investigation was pending.
"She was dismissive about Goethals' finding regarding the credibility of her officers, so it should surprise no one that she keeps these officers on duty and pretends the law forbids her from doing an administrative investigation," Gurwitz said.
One possible rationale for the sheriff's approach: The department can force its deputies to give statements as part of an internal investigation. But to do so amid the attorney general's criminal investigation into the jailers' conduct — in which the statements might be used against them — would violate their right against self-incrimination.
Gurwitz said that is a feeble rationale because criminal investigators commonly refuse to view compelled statements for fear of tainting their case.
After Goethals' remarks last year, Tunstall refused to testify in criminal cases against the Mexican Mafia, a jailhouse gang about which he was knowledgeable, for fear of incriminating himself.
And both Tunstall and Garcia invoked their Fifth Amendment right against self-incrimination to avoid testifying in a gang-shooting case against defendant Eric Ortiz, who had been convicted of murder based in part on jailhouse informant evidence. (A judge tossed out the conviction, and Ortiz is awaiting a retrial.)
Two other deputies who took the Fifth in the Ortiz case — William Grover and Bryan Larson — also have not been disciplined, the Sheriff's Department says.
Along with its investigation into the conduct of the Sheriff's Department, the attorney general's office also is appealing Goethals' decision to throw the district attorney's office off the Dekraai case.
Rudolph Loewenstein, Ortiz's defense attorney, derided the attorney general's investigation as "a joke."
“How do you defend the Sheriff’s Department and the D.A.’s office on the one hand, and investigate them on the other?” Loewenstein said. “Nobody in their right mind thinks the California attorney general’s office is going to use any teeth in the investigation, if they’re even doing one.
Harris' office said in a statement that its appeal of the D.A.'s removal from the Dekraai case has "no bearing" on the attorney general's investigation into the Sheriff's Department.
The jailers have not been charged with any crime. Their defenders say the issue is about training, rather than honesty.
"Let's wait until the smoke clears and the facts have been evaluated before jumping to conclusions," said Paul Meyer, Tunstall's attorney.
In 2015, the Sheriff's Department paid $112,595 to Tunstall and $127,660 to Garcia, both of whom received raises this year of about a dollar an hour, records show.
The so-called snitch scandal has crippled the cases against numerous criminal defendants. It has led to protracted delays in resolving the case of Dekraai, who pleaded guilty in 2014 to the eight Seal Beach murders. Prosecutors are fighting to put him on death row; his attorney, Assistant Public Defender Scott Sanders, has battled to save him from that fate.
Sanders has argued that Orange County jailers have violated defendants' rights with the use of jailhouse snitches for years.
Earlier this year, the D.A.'s office learned that the Sheriff's Department possessed more than 1,000 pages of previously undisclosed material reflecting the daily activities of Special Handling Unit jailers from 2008 to 2013. The district attorney's office — which has expressed frustration publicly with the Sheriff's Department's laggard release of evidence — turned the logs over to the court and acknowledged that they "may impeach the testimony of several" sheriff's deputies.
Prosecutors said the logs reveal that certain jailers "recruited and utilized numerous informers." That appears to contradict testimony in which jailers distanced themselves from efforts to cultivate snitches.
Sanders said Hutchens' failure to discipline jailers owed to her worry they might reveal that the sheriff's leadership was "fully aware of the jailhouse informant program and hoped to deceive defendants and the courts forever."
"Sheriff Hutchens has no incentive to go after deputies," Sanders said. "She realizes that if they think they're being thrown to the wolves, they just might finally tell the truth."