A defense attorney for a man charged with illegally possessing guns was in court in Orange County Monday seeking broad access to reports in the sheriff’s evidence booking scandal.
Assistant Public Defender Scott Sanders, who represents Charles Clark in the gun case, won access to some records, but wants to review all deputy reports from 2015-2018 that were subject to a sheriff’s audit triggered by the scandal in which multiple deputies either failed to book evidence or did it long after they were supposed to.
The scandal has triggered a change in policy that requires evidence to be booked by the end of a deputy’s shift.
Clark claims the deputy who arrested him was not truthful about the probable cause to search the defendant, so Sanders argued he wanted more employment records related to the deputy in question.
In a further effort to undermine the trust in the District Attorney’s Office in handing over evidence related to deputies involved in the evidence scandal, Sanders also argued in a motion filed last week that Patrick O’Toole, a former San Diego prosecutor who has been hired by the Orange County District Attorney’s Office as a special prosecutor for the evidence scandal, oversaw a bizarre grand jury investigation over 11 days that utilized the testimony of two former deputy sheriff’s who pleaded guilty to misdemeanor charges.
The grand jury last month indicted former Orange County sheriff’s Deputy Edwin Mora on a felony count of filing a false report. Mora pleaded not guilty and is awaiting trial.
Mora, like 14 other deputies, was forwarded to prosecutors for criminal prosecution, but charges were rejected. After the evidence scandal erupted last year the District Attorney’s Office took another look at the criminal referrals.
In June, former deputies, Joseph Anthony Atkinson Jr., and Bryce Richmond Simpson, accepted a plea deal to a misdemeanor count that led to a year of informal probation.
According to Sanders’ motion, Mora was offered a plea deal, which he rejected because he was initially cleared of prosecution.
Sanders refers to the grand jury proceedings in the Mora case as “the most disturbing, revealing and incredibly embarrassing legal proceedings in the history of the Orange County criminal justice system.”
Sanders said “the evidence required to prove the single charge against (Mora) could have been presented in less than an hour.”
Instead, O’Toole called 18 witnesses during the 11-day proceedings that amounted to more than 1,200 pages of transcripts, Sanders said.
“Ultimately, a review of the transcripts reveals that the primary objective of O’Toole and the prosecutor’s office was not to use the grand jury’s valuable time to evaluate the strength of evidence that could support convictions but to show why (sheriff’s) personnel who violated the law should face no consequences or the most minimal that the OCDA could devise,” Sanders wrote.
“Smarting from criticism about the decision he and the OCDA made to allow countless law-breaking (sheriff’s) personnel to go unprosecuted and to give Simpson and Atkinson a feint slap on the wrist for crimes that should have earned them numerous felony convictions and substantial incarceration, O’Toole and the OCDA doubled down on their entrenched belief that law violations by those in uniform should be forgiven to the greatest extent possible.”
Sanders said it was a “wanton abandonment of the OCDA’s obligation to treat those who violate the law equally.”
Sanders included transcripts of the proceedings that indicated O’Toole asked “leading” questions that let Atkinson and Simpson characterize their situation as one of prioritizing arrests over doing paperwork in a timely manner. The deputies testified that booking evidence late or not at all was not an issue in the department.
“And would your training officer have known at least in some of those situations, for whatever reason, it had not yet been booked?” O’Toole asked Atkinson.
“I can’t say they knew specifically it had not been booked yet, but it was never made an issue or questioned,” Atkinson replied.
Simpson told the grand jury, “I don’t recall ever having an explicit conversation about this is how to book evidence and rules for evidence. My understanding was that I would write the report, my training officer would understand that we haven’t booked evidence yet, the evidence is still in the car, and he would still sign the report off. So, to me, that — it didn’t seem like there was an issue with that because my training officer, although not saying yes, that is OK, by approving the reports and everything else, was saying that’s OK.”
Sanders also pointed out that O’Toole helped the deputies explain how they were ignorant of the law. When O’Toole asks them if they were aware they were violating the law by not booking the evidence properly, Atkinson said, “No, I was not aware.”
When one grand juror questioned why Atkinson and Simpson were given plea deals, O’Toole acknowledged whether it was relevant, but said he would reply because he thought it was a “fair question.”
O’Toole said, “I thought that was the appropriate settlement under the circumstances for that kind of a misdemeanor versus a misdemeanor that has the words `false report’ in it. So I let them plead to the less serious charge because I thought it was justified under the circumstances.”
O’Toole also said the deputies said they had never heard of the law before or didn’t think it applied to them. O’Toole also acknowledged that the statute of limitations had run out on the misdemeanor charges the deputies admitted so they agreed to waive that as part of the plea deal.
Another deputy accused of evidence booking issues participated in the grand jury proceedings and was later promoted, Sanders said.
Kimberly Edds, a spokeswoman for the District Attorney’s Office, said, “The taxpayers of Orange County are tired of a subordinate attorney speaking on behalf of the Public Defender. Mr. Schwarz, as the interim, not permanent public defender, reports to the Board of Supervisors. If Mr. Schwarz supports using an unrelated legal case on behalf of a public defender client to advance the personal agenda of Mr. Sanders, Mr. Schwarz needs to make it clear these are official office positions and not a waste of government resources.”