OC DA launches own probe, criticizes attorney general’s office

With radio silence from two state attorney generals regarding an investigation into prosecutors' alleged illegal use of informants in Orange County, District Attorney Todd A. Spitzer is launching his own investigation, a decision some public defenders believe may come back to haunt him.

In an interview Wednesday, Spitzer, who spoke about the informant controversy extensively when he campaigned against former district attorney Anthony J. Rackauckas Jr. in 2018, said his investigation was prompted by news the office of Attorney General Xavier Becerra ended the state's investigation.

He also said it is because of the lack of communication from the attorney general's office since it first announced it was launching a criminal probe into the use of jailhouse informants by Orange County prosecutors. He said the attorney general's office, under both Becerra and his predecessor, Kamala Harris, who initiated the inquiry in 2015, never contacted anyone in his office, according to interviews he had with senior staff who worked under Rackauckas.

"This is all about the public's trust in its prosecutorial agencies, and the AG is the top prosecuting agency," Spitzer said. "They need to issue a statement about whether the investigation is open or closed. They can't disappear and have us all guessing. I need to know as a new DA whether there's any actions I can take."

Spitzer, who became district attorney in January, learned the attorney general's inquiry into perjury allegations against three sheriff's deputies had concluded when a deputy attorney general acknowledged it in superior court on April 19.

Senator Kamala Harris

Spitzer said he never received any notice from Becerra regarding the inquiry coming to an end, and in a letter made public Tuesday, he urged the attorney general to clarify the status of the investigation. Not having heard from the attorney general's office, Spitzer, as a new DA, has made staffing decisions public defenders have questioned, suggesting those prosecutors were too close to the informant scandal.

"In light of the significant passage of time and the lack of any communication since the 2015 announcement, it is my responsibility as the recently elected district attorney of Orange County to move forward with my own investigation and hold OCDA employees accountable if necessary," Spitzer wrote in his letter to the attorney general dated Tuesday.

The attorney general's office did not respond to a request for comment and would not confirm receipt of the letter.

In terms of accountability, Spitzer said he has already shown a willingness to terminate employees found guilty of misconduct once they've exhausted their due process. As evidence, he points to his handling of Sandra L. Nassar, a former deputy district attorney who was suspended by the State Bar for withholding evidence in the prosecution of a child molester. People v. Carmen Iacullo and Lori Pincus, 11NF1839 (O.C. Super. Ct., filed June 2011).

Nassar was not involved in the use of informants, a practice Spitzer said has been used mostly by members of the office's homicide and gang prosecution departments. But her termination, he said, shows he's not afraid to clean house.

"I've already showed in my first 100 days that I'm not afraid to terminate anyone who is found guilty of misconduct," Spitzer said. "No employee has been put on administrative leave [because of the informant investigation] at this point in time because there's been no evidence presented to me either internally or [by an] outside agency to show culpability."

But Scott L. Sanders, the assistant public defender who unearthed what he alleged was the illegal use of jailhouse informants while defending confessed mass murderer Scott Dekraai, said there's a real possibility an internal inquiry will prove Spitzer not only allowed many prosecutors connected to cases where informants were used to remain, he promoted some.

Attorney General Xavier Becerra

Sanders is seeking additional information about Elizabeth M. Costello and Alison C. Gyves, whom he alleges withheld informant-related evidence in two different murder cases. People v. Salas, 05CF3635 (O.C. Super. Ct., filed Nov. 17, 2002) and People v. Govey, 17-00103 (C.D. Cal., filed Aug. 16, 2017). Both have been promoted to assistant district attorneys with Gyves leading the homicide unit.

But the most egregious error, in Sanders' eyes, was in Spitzer's handling of one of the prosecutors in the Dekraai case, Assistant District Attorney Daniel V. Wagner. Under Rackauckas, Wagner supervised the homicide division. But he was most recently working in a civil service position, making him more difficult to terminate than when he was an at-will deputy.

Spitzer has moved Wagner to an operations position for the office's North Branch, a decision that left Sanders questioning Spitzer's campaign promises.

"It's been incredible watching a candidate run on the informant scandal and then promote these people," Sanders said. "It's difficult at this moment to view this as an authentic investigation, but I hope he proves us wrong."

Spitzer said Sanders' understanding of his treatment of Wagner is flawed and noted Wagner's new position moves him back into the category of an at-will employee. He also said Wagner has no more connections to the gang or homicide units, and he's been removed from the death penalty panel.

"I don't make my decisions based on what Mr. Sanders alleges," Spitzer said. "I will be making my own, independent analysis."

Spitzer has employed Patrick R. Dixon, a longtime prosecutor from Los Angeles, as special counsel to help him oversee the investigation. Spitzer said Dixon will report solely to him and will sit in on interviews between deputies and federal prosecutors to "monitor their actions."

In a press release, Spitzer called the investigation "Phase Two" of his efforts to steer the office out of the scandal. Phase One included ongoing work with federal prosecutors, changes to internal policy -- for example, Spitzer must personally sign off on each request to use an informant -- and the appointment of an ethics officer and a conviction review unit.

Harris did not respond to requests for comment on whether or not she contacted the district attorney's office about the investigation she launched.