This story was co-published with The Marshall Project.
For the past year, the district attorney's office in Orange County, California, has been battling the fallout from revelations of a decades-old scheme of planting secret informants near defendants' jail cells.
Under this practice, prosecutors gathered information from informers in the county jail—information they were obligated to reveal to the defense but didn't—and then lied about it in court. Once these unethical and unconstitutional practices became known, the DA's office was forced to dismiss or reduce charges or retry cases for more than a dozen people accused of murder and other serious crimes. In the process, the DA's office and the county judiciary have ended up in a protracted legal sparring match.
Now two longtime prosecutors from that same office—Michael Murray and Larry Yellin—are running for superior court judgeships, aiming to take the bench alongside judges who have called them out for misconduct. Neither prosecutor has been formally sanctioned in the scandal. But both are supervisory-level district attorneys in an office that a judge recently ruled "habitually ignored the law over an extended period of time." Both, by their own admission, have withheld evidence. And both are considered shoo-ins by the local press. (Two other prosecutors are running for judgeships, but they have not been implicated in the scandal.)
If elected, Murray and Yellin won't be the first prosecutors to join the bench after withholding evidence or being accused of misconduct. Legal scholars and critics have long noted how rarely prosecutors are publicly accountable for misbehavior. A recent investigation by the New England Center for Investigative Reporting, for example, identified 120 Massachusetts criminal convictions that were reversed in the last 30 years because of prosecutorial misconduct; at least seven of these prosecutors went on to higher posts, including judgeships, the reporters found.
"The idea that an individual responsible for such serious misconduct could effectively stroll into the office of a judge is deeply disturbing," says Laura Fernandez, a Yale research scholar who studies prosecutorial misconduct. No one has yet faced charges related to the scandal, but one deputy district attorney resigned and four sheriff's deputies refused to testify in a related hearing, citing their Fifth Amendment right against self-incrimination. "More troubling still, this appears to be the tip of the iceberg," John Van de Kamp, a former state attorney general, and Erwin Chemerinsky, dean of the law school at the University of California-Irvine, wrote last year in a letter to the Justice Department, requesting a federal inquiry*. "Compelling evidence of pervasive police and prosecutorial misconduct in Orange County… has caused us grave concern."
The judicial election is June 7.
At the heart of the scandal is a database the Orange County Sheriff's Office uses to track the placement of informers in the jail. Use of jailhouse informers is constitutional, as long as the informer happens to hear the defendant talk, unprompted. But the Supreme Court said informers can't elicit information from someone who already has a lawyer—that would too closely resemble an interrogation. What's more, any deals brokered with informants, and any information that might undermine the informants' credibility—say, that they were informants in other cases, or that they have lied on the stand in the past—must be turned over to the defense.
The database first came to light when Orange County public defender Scott Sanders combed through thousands of pages of records and pieced it together. Sanders was representing confessed mass murderer Scott Dekraai, whom DAs targeted with the scheme. Documents and subsequent hearings revealed that it wasn't just Dekraai—the DA's office had been violating these constitutional prohibitions for years. In a searing ruling issued last March, Orange County Superior Court Judge Thomas Goethals removed the entire county DA's office—all 250 attorneys—from Dekraai's case, the highest-profile murder case the county has ever seen, ruling that the DA had proved himself incapable of achieving "compliance with his constitutional… obligations in this case."
The DA's office then retaliated by seeking to have Goethals removed from almost every murder case it tried in the months that followed. In that instance, one of Goethals's colleagues, Superior Court Judge Richard King, ruled that the DA's actions "have substantially disrupted the orderly administration of criminal justice in Orange County, the sixth largest county in the nation." This legal battle is ongoing, as the DA's office fights to maintain its ability to disqualify Goethals from cases at will.
Now, armed with new revelations from the database and its fallout, defense lawyers have begun to unravel other cases in which jailhouse informers may have been used illegally against their clients. A handful of these cases raise questions about Murray and Yellin.
In one case, Murray didn't turn over a jailhouse recording of an informer named Oscar Moriel, who had served as a snitch in several other cases. The recording could have helped the defense team of Alberto Martinez, accused of a gang-related killing. In the tape, Martinez's co-defendant, Armando Macias, downplays Martinez's role in the gang, undermining the prosecution's theory at trial that Martinez was a high-ranking member of the gang. In a hearing related to the snitch scandal, Murray admitted on the stand that he violated the law by not turning over these recordings to Martinez's or Macias's legal teams. Both men were later sentenced to death.
In another, continuing case, the defense has argued that Murray conspired with the California Highway Patrol to hide evidence of doctored police reports.
And in 2007, in a case unrelated to the scandal over informers, Murray was cited for misconduct by a California appeals court, which identified multiple instances when Murray misstated the law and used improper tactics at the murder trial of Thai Ba Tran. The court upheld Tran's conviction for two 1996 murders, but wrote, "Our conclusion Tran was not prejudiced by Michael Murray's numerous acts of misconduct does not mean we approve of or condone his tactics and behavior. The district attorney should take little solace in the fact we have affirmed Tran's convictions… We are troubled by the frequency in which we see prosecutorial misconduct."
Murray did not respond to multiple requests for comment, but on his campaign website, he says, "I have a reputation as a determined, knowledgeable, and ethical prosecutor."
Murray's colleague Larry Yellin, running for a separate seat on the same court, admitted in 2014 that he did not turn over key information from an informer in a murder case against Nuzzio Begaren. In that case, a jailhouse snitch named Raymond Cuevas not only elicited information from Begaren's accomplice, Rudy Duran, but Cuevas also threatened that the Mexican Mafia would go after Duran if he didn't inform against Begaren. Yellin admitted he never turned over these recordings to Begaren's lawyers, but he was unrepentant, telling a reporter it was "redundant" to other evidence. "It would have given [Begaren's lawyers] nowhere to go," he said. In the same article, Yellin's own boss conceded that "it should have been turned over."
"You're talking about a situation where the jailhouse informant threatened physical violence, even death, to elicit statements, conduct that is flatly unconstitutional," says Fernandez, the Yale research scholar.
Yellin also did not respond to emails and Facebook messages requesting comment. On his campaign website, he describes himself as "a tough but fair prosecutor."
If Murray and Yellin are elected, they will be in a position to rule on cases related to withheld database evidence.
*District Attorney Tony Rackauckas has agreed to the probe; Justice Department spokeswoman Dena Iverson told The Marshall Project the Department is reviewing the letter and declined to comment further.
This article was originally published by The Marshall Project, a nonprofit news organization that covers the US criminal justice system. Sign up for its newsletter, or follow the Marshall Project on Facebook or Twitter.