A defense attorney who uncovered systemic problems with Orange County sheriff’s deputies failing to book evidence properly Monday doubted the sincerity of Orange County District Attorney Todd Spitzer’s pledge to root out the problem.
Spitzer sent a letter to Sheriff Don Barnes on Thursday demanding he provide more details on which cases were affected by a failure to book evidence so his prosecutors could turn over the information to defense attorneys.
“I believe we share the responsibility of restoring the rights of any person who may have been prosecuted in a case where recovered evidence was not booked,” Spitzer wrote in the letter.
Spitzer’s prodding of Barnes to turn over more information on which cases have been affected by the failure to turn over evidence either at all or in a timely fashion would seem to put the him on the same page as Assistant Public Defender Scott Sanders, who uncovered the problem in a motion related to his client, Raymond Lopez Varelas, who is charged with possession of methamphetamine and heroin for sale with a sentencing enhancement for gang activity.
However, Sanders said he doubts Spitzer’s assertion in his letter to Barnes that he had just found out about a pair of internal audits the sheriff had done on the evidence-booking problem.
“The notion that nobody in this District Attorney’s Office was aware of either audit warrants dubiousness given the past history of these two agencies,” Sanders told City News Service.
Assistant District Attorney Shawn Nelson said Sanders’ criticism was unfair. Nelson said prosecutors were receiving reports from sheriff’s officials about individual cases involving failures to book evidence, but they were not aware of the gravity of the situation until last week.
Sanders was the attorney who also drove allegations of abuses in a confidential informant program monitored by the sheriff’s department when he represented Scott Dekraai, the worst mass killer in the county’s history.
Dekraai, who pleaded guilty to the Seal Beach nail salon massacre, was sentenced to life in prison without the possibility of parole when an Orange County Superior Court judge ruled prosecutors could not give Dekraai a fair trial on the death penalty portion of his case.
The main issue in the Dekraai case was what attorneys refer to as a Brady violation, which is a failure to turn over evidence to defense attorneys. Sanders sees parallel issues.
“We’ve been through this before and the criminal justice system should be suspicious when (prosecutors) say we didn’t know anything and the wool was pulled over our eyes,” Sanders said. “That was the claim in the informant scandal the Court of Appeal said that wasn’t the case.”
Sanders said it was “shocking and horrendous” that a constitutional advisor to the sheriff “knew about this about a year ago almost and did not immediately demand whatever it took to get it in the hands of defense attorneys and instead buried it.”
Sanders claimed that if an informant hadn’t told him about the audit the sheriff would never have alerted anyone to the problem.
“It’s clear this is much like the informant scandal,” Sanders said. “I think they were going to hide this evidence forever.”
Spitzer said he “first became aware” that sheriff’s officials “conducted a wide-scale internal audit of 98,676 departmental records, or sheriff reports, to review evidence collection and booking by (sheriff’s) deputies over a two-year period” at a Nov. 18 briefing with Barnes.
The constitutional advisor’s report was completed in February.
Sanders said it was a surprise to learn from Spitzer’s letter that there was a secondary audit of 450 cases.
Spitzer said in the letter to Barnes that the second audit found that “in 47% of the 121 reports where deputies stated they had collected and booked evidence, there was no evidence booked. This means in 57 of the reports reviewed, a deputy failed to book a piece of evidence that the deputy stated he or she collected.”
Now, Spitzer added, he has “concerns that my office may have filed and prosecuted criminal charges against individuals based on OCSD reports that inaccurately stated evidence had been booked.”
Spitzer said his “goal is to identify any and all cases handled by OCDA where a defendant’s due process rights may have been negatively impacted by having evidence collected but not booked.”
Carrie Braun, the sheriff department’s director of public affairs and community engagement, noted that Barnes has referred 15 criminal cases to prosecutors as a result of the audit, but no charges have been filed. She added that four deputies have been dismissed, seven have been disciplined and four internal investigations are pending.
“We have been working with the District Attorney’s Office throughout this process,” Braun said.
Nelson said prosecutors did not find any cases where the law was broken.
“There’s a big difference between criminal conduct and a violation of their administrative requirements,” Nelson said. “They still can lose their badge and get fired, but we’re not the HR department for the Sheriff’s Department.”
Sanders wondered if any of the disciplined or fired deputies have been added to the District Attorney’s Office’s list of law enforcement with issues related to turning over evidence. The so-called Brady list of law enforcement must be turned over to deputies when they file what is known as a Pitchess motion, which seeks disciplinary files of officers or deputies.
“My frustration with Scott (Sanders) is he would like to assume, `I didn’t like the last group’ and there’s no answer we can give that’s satisfactory,” Nelson said. “As soon as we do what’s right instead of saying thank you the next thing out of his mouth is why didn’t you do this?”
Now that prosecutors are fully aware of the “scope” of the problem they are dedicated to getting to the bottom of it, Nelson said, adding that sheriff’s officials should have been upfront it was an agency-wide issue.
“The information, as it came in, failed to make clear the issue involved an audit of the entire agency,” Nelson said. “As of yet, we still do not have the audit nor have we received a response to the letter we sent to the Sheriff’s Department requesting additional information about cases where evidence was not properly booked.”
Braun said the department became aware of the problem in January 2018. Deputies are required to book evidence by the end of their shift, but the policy was not being followed routinely.
The auditors looked at February 2016 through February 2018. They went over about 98,000 reports and about 27,000 evidence bookings involving about 1,500 deputies, Braun said.
The auditors found “systemic problems” with most of the evidence not booked properly was digital evidence such as photographs, surveillance video and/or audio recordings, Braun said.