For a quarter of a century, the Orange County Sheriff's Department (OCSD) operated one of the nation's longest frauds on the criminal-justice system through a secret, computerized records system called TRED. In late 2014, Superior Court Judge Thomas M. Goethals forced a monumentally resistant OCSD to admit its existence. Why all the secrecy?
The few TRED records that have been pried free are a treasure trove of exculpatory evidence hidden from trials that resulted in prosecution victories over hoodwinked defendants. The records also clearly reveal that Southern California law-enforcement officials run a jailhouse-informant program that habitually tramples the constitutional rights of pretrial defendants.
With the aid of the county counsel's office, OCSD officials employed exaggerations, half-truths, circular logic and legally inane gobbledygook to keep judges, juries and defense lawyers clueless about TRED since 1990. They've even been willing to tell fibs under oath in a death-penalty case.
Four months ago in People v. Scott Dekraai, Goethals labeled deputies Ben Garcia and Seth Tunstall as perjurers. These badged men repeatedly lied about the existence of the records, then faked amnesia when confronted with proof of their dishonesty. Perhaps anticipated protection emboldened these characters. District Attorney Tony Rackauckas–whose office is both the beneficiary of and willing partner in the Garcia/Tunstall ploys–refuses to prosecute the officers.
A newly unsealed transcript of a March 25, 2005, pretrial hearing in People v. Henry Rodriguez sheds additional light on the TRED deception. To convict Rodriguez, government agents violated legal principles established in Brady (records helpful to a defendant must be surrendered) and Massiah (police can't use trickery to entice incriminating statements from charged suspects who have a lawyer).
The prosecution team placed veteran informant Michael James Garrity in close jail proximity to Rodriguez in June 1999, coached him on what questions they wanted answered, and pretended the snitch accidentally stumbled upon information so it could be used in trial. Hidden TRED records contain notes revealing the true extent of Garrity's snitch work for OCSD's Special Handling Unit, which recruits and grooms informants for prosecutorial allies.
As with all outsiders, James Crawford–Rodriguez's defense lawyer–didn't know TRED existed until recent months, in part because deputies generically referred to the system as “classification records.” But Crawford caused the 2005 hearing by filing a subpoena seeking the type of data contained in TRED, including Garrity's jail movements and snitch-related operations. In open court with Superior Court Judge Frank F. Fasel, deputy County Counsel Laura Knapp objected to surrendering the records, claiming a nonexistent disclosure exemption entitles deputies to private “stream of consciousness” files. Knapp also argued TRED records were simultaneously nonexistent and yet vital for jail security. She told the judge, “It is the sheriff's contention that these records are highly confidential investigatory files, which are not written or created.”
During his multidecade career on the bench, the now-retired Fasel earned a reputation as a cerebral if cranky, no-nonsense judge who didn't mind aiming his considerable ire at defense lawyers who uttered nonsense. He didn't snarl at Knapp's gibberish, however. What happened next, though, is revealing.
Knapp and deputy James Fouste, then a sergeant in charge of the Special Handling Unit, joined Fasel in his chambers for an in-camera review of the TRED records OCSD wanted to keep hidden from Crawford. It was almost immediately obvious to the judge that the evidence had to be surrendered as crucial to the defense claim that the prosecution team hadn't been honest. “Okay,” he declared, “I think this is all discoverable.”
Fouste, who'd served as one of Garrity's snitch handlers, fought the decision, insisting on continued blanket secrecy of the TRED system. “My objection to the release of any of this information is not necessarily specific to the records that you are viewing at this time,” the deputy said. His biggest concern was creating a precedent in which “it becomes a practice for people to ask for these records.” Defense-lawyer scrutiny of the TREDs “could open up a larger issue for the department.”
Fasel restated his stance. The deputy countered by insisting that continued secrecy prevented “common knowledge [of] how much information we keep on each individual [who's] in our custody.” In his slippery-slope scenario, defense possession of TRED evidence would lead to public awareness of the system, which in turn would hamper snitch activities. And if snitches aren't ratting? Well, then the Orange County Jail would become chaos. “If inmates don't talk to us, I can't provide a reasonable guarantee of security as I now can,” Fouste said.
The argument that overwrought jail-security worries trump a defendant's constitutional right to a fair trial didn't sway Fasel, but the judge did agree to some minor redactions before Knapp made a startling admission: Deputies believe their TRED entries would always be secret. “Again, I go back to this stream of consciousness because when the deputies are–they don't think it is ever going to be discovered,” she said, without volunteering who'd been giving OCSD lousy legal advice.
Fast-forward a decade. Despite Fasel's ruling, Crawford, who wasn't privy to the in-camera discussion as he defended Rodriguez, says Knapp never turned over the TRED records. He wants a new trial.
We don't know what explanation the deputy county counsel will give because Knapp failed to appear at a Goethals-called June 25 hearing on the topic of unsealing the 2005 transcript and what to do about government transgressions to win the conviction. She sent word through prosecutor Howard Gundy–who'd idly stood by when Tunstall and Garcia committed perjury–that the public should never know what she and Fouste told Fasel.
Goethals demanded her appearance, but supposedly nobody knew her whereabouts. Elizabeth A. Pejeau, Knapp's colleague, eventually showed up and argued the 15-year-old TRED records on Garrity were still “sensitive” and–never mind that I used them to publish an April 1 article exposing the informant's role in Rodriguez–should be kept confidential.
“The informant is hardly a secret,” the judge responded.
This deputy county counsel then reused the security excuse. If inmates know of TRED records, they “could decipher how to manipulate the [jail-housing classification] system,” Pejeau said.
But knowledge of the system's existence doesn't give inmates any more information than they already have. Even a moron can deduce cell placement depends on gang status, pending charges, snitch participation and, frankly, deputy whim. Inmates have no control over their housing; OCSD enjoys total say.
No fool, Goethals noted he saw zero legitimate security concerns and asked Pejeau to support her contention with facts. Looking exasperated if not angry, she paused and stared at him. “I can't answer that right now,” she finally said.
The judge has grown weary of malarkey. He announced plans to put government officials on the witness stand to answer his questions about what happened in the Rodriguez case, and he unsealed related TRED records.
“I'm a big believer that these are public courts,” he said. “The public should know what we are doing here. It protects the integrity of the system.”
R. Scott Moxley’s award-winning investigative journalism has touched nerves for two decades. An angry congressman threatened to break Moxley’s knee caps. A dirty sheriff promised his critical reporting was irrelevant and then landed in prison. The U.S. House of Representatives debated his work. Federal prosecutors credited his stories for the arrest of a doctor who sold fake medicine to dying patients. Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; and hailed by two New York Times Magazine writers for his “herculean job” exposing Southern California law enforcement corruption.