When District Attorneys Attack – Overcriminalization in America

Originally published at National Review by Kevin D. Williamson | 5/31/15

(Mirko Vitali, Visivasnc/Dreamstime; Illustration: NRO)

The GOP should turn its attention to prosecutorial misconduct.

As the old Vulcan proverb has it, “Only Nixon can go to China.” And only Nixon’s political heirs can fix the persistent — and terrifying — problems that continue to plague this country’s law-enforcement agencies and prosecutors’ offices.

Exhibit A: Orange County, California.

The sunny Southern California county with a population surpassing that of nearly half the states has a Republican district attorney, Tony Rackauckas, and a big problem on its hands: Its entire prosecutorial apparatus — all 250 lawyers in the district attorney’s office — have been disqualified from participation in a high-profile capital-murder case following revelations that the office colluded with the Orange County sheriff’s department to systematically suppress potentially exculpatory evidence in at least three dozen cases, committing what legal scholars have characterized as perjury and obstruction of justice in the process.

One of the questions involves a secret database of jail records related to confessions obtained via informants. Sheriff’s officers denied the database even existed, and their deception was abetted by prosecutors, leading an exasperated judge to issue an order noting that they “have either intentionally lied or willfully withheld material evidence from this court during the course of their various testimonies. For this court’s current purposes, one is as bad as the other.” The judge unsubtly recommends prosecution.

The database tracking inmates’ movements around the jail and the reason for those movements is significant, because Orange County law enforcement and prosecutors were in the habit of placing targeted suspects in proximity to criminal informants, who were rewarded with reduced sentences, favors, or money — payments in some instances ran into the six figures — for helping put together cases against jailed suspects. This practice is illegal. It is one thing if a suspect in custody speaks about his crimes and an informant comes forward to report that confession; it is another thing to operate a program under which the interrogation of suspects is effectively delegated to incarcerated felons who are secretly on the county’s payroll. The lack of present legal counsel is only the beginning of what is wrong with that practice.

To operate such a program is ipso facto a violation of the law and of ethical standards for jailers and prosecutors both. To lie about it is a serious crime. It may turn out to be a lucky thing after all that these defective prosecutions will probably open up a great many jail cells: Orange County is going to have to put these sheriff’s officers and prosecutors somewhere.

The despair-inducing details of the case can be located in the pages of OC Weekly, but the climax so far is this:

Superior Court Judge Thomas M. Goethals made an unprecedented, historic move after announcing he’d lost confidence in Orange County homicide and gang prosecutors to obey simple legal rules of conduct. Goethals, a onetime prosecutor and campaign contributor to the DA, recused Rackauckas and his entire staff from People v. Scott Dekraai, the capital case stemming from the 2011 Seal Beach salon massacre.

What this means is that the prosecutors’ office is, in effect, an example of that other O.C.: organized crime.

Prosecutorial misconduct is a plague upon these United States.

A secret cache of electronic records containing information that is potentially embarrassing to political figures, and the criminal handling of that database, is of course an all-too-familiar story to those of us who have been following the saga of Hillary Rodham Clinton’s e-mails, which were originally in digital form, were converted into paper printouts, and are now in the process of being redigitized before they are handed over to investigators, a process that only the naïve would believe exists for any purpose other than tampering with the evidence. The Orange County authorities had been using their database, called TRED, for a quarter of a century. Prosecutors were aware of it, and the sheriff’s officers who testified before Judge Goethals had made thousands of entries in it. Yet they could not quite recall its existence when honor, duty, and the law obliged them to do so.

This is not a one-off. Prosecutorial misconduct is a plague upon these United States, from the vodka-pickled Democratic political jihadists in Austin to California, where judges complain of an “epidemic” of prosecutorial misconduct abetted by Democratic attorney general Kamala Harris, who is seeking to replace retiring Barbara Boxer in the Senate.

The Democrats have long been acculturated to the climate of corruption that attends government agencies that are largely free of ordinary accountability, where a carefully cultivated lack of transparency shields operatives from scrutiny and normal oversight. Republicans can rouse themselves to action, if only barely, when this involves the federal Internal Revenue Service or Environmental Protection Agency. But deference to police agencies and prosecutors is so habitual among the members of the law-and-order party that they instinctively look for excuses when presented with obvious examples of police misconduct, and twiddle their thumbs in the 99 percent of cases of prosecutorial misconduct that do not involve a Republican elected official.

Only the Republican party has the credibility and the political capital to take on the difficult task of reining in rogue police agencies and abusive prosecutors.

But only the Republican party has the credibility and the political capital to take on the difficult and sure-to-be-thankless task of reining in rogue police agencies and abusive prosecutors — and they may as well take a look at our scandalous prisons while they are at it. Some Republican leaders, notably Texas’s former governor Rick Perry, have been active and energetic partisans of reform, largely under the banner of the excellent Right on Crime campaign. But this is not really a job for presidents or even governors: This is a job for mayors, city councilmen, district attorneys, sheriffs, and police chiefs. In the bigger cities, Republicans are thin indeed in those ranks. But that is not the case in Orange County. In Orange County, Republicans have no excuse.

Democrats may have ruined Detroit, Baltimore, Cleveland, etc., and they are well on their way toward doing the same thing to Los Angeles, Philadelphia, New York, etc. If Republicans want to show that they can do better, then fixing the mess in Orange County, a community more populous than Chicago, would be an excellent place to start.

— Kevin D. Williamson is roving correspondent at National Review.