During his opening statements in the People v. Ramos and Cicinelli trial, Orange County District Attorney Tony Rackauckas wields a police baton, demonstrating how he believes Fullerton police officer Manuel Ramos threatened Kelly Thomas. ////ADDITIONAL INFO: kelly.thomas.120213 - Day: Monday - Date: 12/2/13 - Time: 10:17:38 AM - Original file name DSC_0409.NEF PHOTO BY, BRUCE CHAMBERS, ORANGE COUNTY REGISTER - SANTA ANA - A history-making trial starts Monday for two ex-Fullerton police officers accused in the beating death of a mentally ill, homeless man. At stake will be the freedom of former officers Manuel Ramos, 39, and Jay Cicinelli, 42, who are charged with fatally beating Kelly Thomas, 37, a schizophrenic transient, during an encounter captured by a surveillance camera at the Fullerton Transportation Center on July 5, 2011. Thomas died five later when he was removed from life support, Ramos, 39, is charged with second-degree murder and involuntary manslaughter – the first time in Orange County history that a uniformed police officer has been charged with murder for an on-duty incident. Cicinelli, 41, is charged with involuntary manslaughter and assault and battery under color of authority. The trial before Superior Court Judge William Froeberg could take about six weeks.The prosecution is led by Tony Rackauckas, Orange County's district attorney since 1999, the first time in more than a dozen years that he's personally handled a trial in the courtroom. John Barnett, perhaps the county's best-known defense attorney, is representing Ramos. Michael Schwartz, who specializes in defending police officers, is representing Cicinelli.

During his opening statements in the People v. Ramos and Cicinelli, District Attorney Tony Rackauckas wielded a police baton to demonstrate how he believed Fullerton Officer Manuel Ramos threatened Kelly Thomas in 2011. (Bruce Chambers / File)

By David Ferrell and Tony Saavedra
December 27, 2015 – Updated 12:33 p.m.

Tough, street-smart Tony Rackauckas, who left gang-marred East Los Angeles to jump from the sky as a U.S. Army paratrooper, has spent the better part of his legal career in one battle or another.

He prosecuted murderers. He fought to oust liberal California Supreme Court Justice Rose Bird. During his long run as Orange County district attorney, Rackauckas has endured as one of local government’s most powerful and enigmatic figures, surviving public accusations of cronyism and poor management. A grand jury criticized him for an ill-advised friendship with the target of an organized crime probe.

Now, at 72, embroiled in his latest controversy – over the improper use of jailhouse informants – Rackauckas is under fire from far outside his normal sphere. Top legal experts from throughout the country penned a Nov. 17 letter to U.S. Attorney General Loretta Lynch, declaring Orange County’s justice system to be in a state of crisis and asking for a federal investigation.

Former California Attorney General John Van de Kamp, one of more than 30 well-known officials and scholars who signed the missive, said he holds Rackauckas accountable for problems with jailhouse informants that date back years.

Those problems, involving the constitutional rights of people awaiting trial, resulted in March in one of the most stunning legal decisions ever rendered here: A judge has barred the entire District Attorney’s Office from handling the death penalty prosecution of Seal Beach shooter Scott Dekraai, the confessed gunman in the county’s worst massacre.

Similar jailhouse informant problems have since surfaced in other cases, causing at least five murder and attempted murder convictions to unravel. Other resolved cases now face new legal challenges.

“Ultimately, as the D.A., you’re accountable for everything that goes on,” Van de Kamp said of Rackauckas, whose office represents the people in every criminal case filed in Orange County. The district attorney oversees evidence – including informant testimony – gathered by police agencies such as the Orange County Sheriff’s Department, which also operates the jail system.

“For too many years now a lot of games have been played,” Van de Kamp said in an interview. “People may have been unfairly prosecuted and at the same time you are seeing very serious cases being plea-bargained out to avoid further disclosures by the D.A.’s Office.

“We need to have a thorough investigation of a whole bunch of cases, and no court is going to do that,” he said. “Somebody has got to come in and take a thorough look and see what damage has been done.”

The former state attorney general also voiced concern about how Rackauckas’ office and Orange County sheriff’s deputies have responded to the controversy. Despite new training programs and other reforms, no evidence exists that they have fully rectified the problems, he said.

“They’ve been very defensive,” Van de Kamp said. “People have taken the Fifth Amendment. Wait a minute! Your job is to do justice and make sure people aren’t wrongly convicted.”

Facing an onslaught of criticism, Rackauckas has hunkered down, picking and choosing the rare moments when he will speak about the issues. He agreed to an interview for this story, then abruptly canceled it – even while his chief of staff, Susan Kang Schroeder, complained about the failures of the media to adequately present his point of view.

Schroeder said Rackauckas is awaiting a report, due any day, from a hand-picked committee charged with reviewing operations of his office.

Oversight issues

Rackauckas’ power is such that many in the county’s legal community – long a collegial, close-knit circle – are reluctant or even fearful about talking about him. Longtime allies are silent. The informant controversy, inflamed by disclosures about clandestine jailhouse operatives and mysterious informant records, has drawn the attention of national media such as “60 Minutes” and The New York Times.

Those now requesting a U.S. Department of Justice inquiry hail from points all over the map. Gil Garcetti, the longtime district attorney in Los Angeles, signed the letter. So did UCI Law Dean Erwin Chemerinsky and legal scholars at Yale and Harvard, as well as authors and ex-government officials elsewhere.

“It appears as though there literally was a systemic kind of design to increase the thrust of these jailhouse informants,” said Robert Bloom, a professor at Boston College Law School who wrote the book, “Ratting: The Use and Abuse of Informants in the American Justice System.”

“It looks as though the jailers, the district attorney … had a scheme – nothing in writing, of course – where certain defendants were placed with people likely to become jailhouse informants, and that was used to convict some of these folks.”

Bloom signed the letter and, in an interview, likened the oversight role performed by Rackauckas and the Sheriff’s Department to a fox guarding the chicken coop.

Both Rackauckas and Orange County Sheriff Sandra Hutchens have conceded mistakes but denied any intentional wrongdoing.

Documents obtained and previously reported on by the Register, however, reveal a secret and well-organized network of snitches, some paid, operating among the county’s nearly 5,000 inmates, a world where some jailhouse informants essentially serve as undercover agents for law enforcement. Some have gone so far as to suggest strategies for getting targeted inmates to talk about their crimes.

In one instance, for example, an informant turned in a confidential, handwritten report recommending that deputies move him into a disciplinary isolation unit next to a targeted defendant, on the theory the targeted inmate would feel more free to talk there. He would never suspect that another prisoner in disciplinary confinement would be a snitch.

The law allows the deliberate placement of informants next to defendants, as long as the informants serve only as passive “listening posts” in overhearing what defendants might say. But jailhouse informants cannot make deliberate efforts to coax charged cellmates to talk about their cases. That violates the constitutional right to have legal counsel present during questioning.

Prosecutors and jailers also have been accused of another kind of illegal practice: withholding information about jailhouse informants from defense lawyers in violation of discovery laws.

Any evidence regarded as favorable to a defendant’s case must be shared with the defense, including facts about an informant’s criminal background and any promises he might have received for testifying – facts that could cast doubt on the informant’s credibility as a witness.

Prosecutors and sheriff’s officials have acknowledged that at times those disclosures were not made. In certain cases, prosecutors refrain from releasing details about an informant’s background because they believe the disclosures could put an informant’s life in danger. It then becomes “the judge’s job … to balance the competing interests and make a decision whether a disclosure should be made,” said Dan Wagner, head of the District Attorney’s Homicide Unit.

Why Orange County?

As Orange County’s top law enforcement official, Rackauckas is the most obvious fall guy, as Superior Judge Thomas M. Goethals noted in March when he removed the D.A.’s Office prosecuting the death penalty case against Dekraai, who admitted killing his ex-wife and seven others at a Seal Beach salon in 2011.

After Dekraai’s arrest, deputies bugged his cell after consulting with the District Attorney’s Office, and he confided in the veteran jailhouse informant in the cell next door.

“(T)he district attorney is responsible for the actions of his agents,” the judge wrote. “In this case, the evidence demonstrates that some of those agents have habitually ignored the law over an extended period of time to the detriment of the defendant.”

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