A former Santa Clara County Jail official has claimed he routinely helped cops and prosecutors plant jailhouse informants to actively dig up information from suspects for about 10 years ending in the late 1990s, potentially violating a Supreme Court ruling that prevents the government from sending anyone to interrogate defendants without their lawyer being present.
The remarks by retired Lt. Frank Dixon in a sworn declaration he gave in an appellate case, as well as an interview with this newspaper, appear to be a rare admission of what defendants have long insisted is a common civil rights violation by law enforcement.
Under a 1986 Supreme Court ruling, the government may plant jailhouse informants only as “silent listening posts” who cannot deliberately elicit incriminating information from the accused.
Dixon’s declaration surfaced in the appeal of Surinder Bains’ murder conviction in the 1990 killing of his brother-in-law. Bains’ lawyer contends that jail personnel housed the informant who testified against Bains in the same unit at the behest of the prosecution team to dig up incriminating information.
Dixon has no specific recollection of an inmate being planted as an informant against Bains, and it’s unclear whether his declaration will prove persuasive in the appeal. It’s also unlikely to result in new appeals in other cases because Dixon’s recollections were so long ago and unspecific.
But the use of such informants continues to raise concerns among defense attorneys and civil rights advocates around the country. In Orange County, a public defender last year exposed what appears to be the secret misuse by prosecutors and police of a network of jail snitches to interrogate defendants. Last month, a panel of federal judges denounced a California state judge for refusing to overturn a Riverside County case in which a prosecutor lied on the witness stand to back up the lies of a jailhouse informant.
Unraveled cases
District Attorney Jeff Rosen and Sheriff Laurie Smith insist that police and prosecutors haven’t planted jailhouse informants under their watch, if at all. Rosen was first elected four years ago, and Smith, who runs the jails, first took office in late 1998 when the jails were run by a separate corrections department.
“We see informants as inherently unreliable” for the most part, said Assistant District Attorney Scott Tsui. And, speaking of Dixon’s allegations, he said, “We have no way of knowing if what he described is true. But if it happened, it was a long time ago.”
But in Orange County, where at least three felony cases so far have unraveled because of the misuse of snitches, the public defender there said Dixon’s declaration rang true because the period of time he was referring to was the “heyday” for jailhouse informants.
“This has been happening everywhere nearly forever,” Orange County Public Defender Scott Sanders said. “How many wrongful convictions are there in this state behind these types of actions? Thousands, certainly. It is scary.”
In the late 1980s, a scandal over the extensive use of jailhouse informants erupted in Los Angeles County after informant Leslie Vernon White proved how easily he could fake the confession of another inmate. It sparked a grand jury investigation and major reforms, and the use of informants there plummeted.
Former Santa Clara County District Attorney George Kennedy, who was first elected in 1990 and served four terms, said prosecutors “infrequently” did ask that inmates be housed in particular jail units, but only “in the most important matters” to learn such things as an accused killer’s motive or the location of a corpse. But he said they didn’t violate the inmates’ rights.
“Inmate-colleagues transferred for such purpose were not acting as questioning law-enforcement agents, but rather as persons given opportunities to listen,” Kennedy said.
In the Bains case, the informant, who claimed he just happened to be placed in the same unit as the accused killer, peppered him and other inmates with questions, according to testimony during the trial.
Dixon does not recall specifically planting the informant in Bains’ case. But he says that housing the suspected killer with informant Raymond Delgado, who had testified two weeks earlier in a different case and should have been in protective custody, was so “highly unusual” that it probably was intentional. He also clearly recalls “routinely” planting other informants in his capacity from the late 1980s through the late 1990s as one of two lieutenants who ran the classification unit, which assigns inmates to cells. He also said others in the classifications unit did the same thing.
“It was very common for law enforcement personnel or representatives of the District Attorney’s Office to ask Classifications to house a particular inmate with another inmate for the purposes of information gathering,” according to Dixon’s statement. “It happened all the time.”
Cramped cells
Dixon provided more details about his claim in an hourlong, in-person interview in October with this newspaper, including that many of the placed informants actively sought information by asking questions in violation of the Supreme Court court ruling. About three hours after that interview, Dixon called, said he’d just had lunch with a “buddy in law enforcement” and denied everything. However, he has not withdrawn his sworn declaration.
In his declaration, Dixon also said law enforcement agencies “upon occasion” would book an informant on “made-up charges” to gather information. He called the practice “849-ing,” referring to the penal code section that requires the release of inmates who are not charged with a crime within 48 hours. Dixon also said in the interview that he would make arrangements for a jail informant and a defendant who did not have to appear in court on a particular day to be bused to the courthouse so they would be forced to spend all day together in a cramped holding cell, where the informant would have plenty of time to tease out information from the other inmate.
Even if Dixon’s recollections are accurate, Bains’ chances of having his conviction overturned are considered slim because the former lieutenant has no specific memory of the case. A lower court judge this summer rejected Bains’ petition for a new trial, noting there is other damaging evidence against him. But appellate lawyer Gary Dubcoff is pressing ahead with his contention about the jailhouse informant.
“I’m not casting aspersions on the current administration of the Santa Clara County D.A.’s Office, Dubcoff said. “But it was a whole different story back then.”
Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport.
