Orange County Sheriff Don Barnes Wednesday downplayed an evidence booking scandal, calling reports of a widespread problem of missing pieces of evidence inaccurate and saying his department has taken several steps to reform its protocols to avoid the problem happening again.
In an interview with City News Service, Barnes insisted that his department recognized the problem on its own and took steps to reform its evidence booking policies long before an attorney in the Orange County Public Defender’s Office raised issues in a drug case last month.
Barnes is not only butting heads with Assistant Public Defender Scott Sanders — the attorney who uncovered problems in the sheriff’s confidential informant program in the case of Scott Dekraai, the worst mass killer in the county’s history — but with Orange County District Attorney Todd Spitzer, who is disputing Barnes’ assertion that he alerted prosecutors that the sheriff’s department had been auditing tens of thousands of cases for evidence-booking errors.
Sanders has claimed he only found out about the audits from a source who tipped him off, and Spitzer said he learned of the audits from media inquiries last month. Barnes said prosecutors were alerted about the problems and that the District Attorney’s Office had sent letters to defense attorneys in the affected cases.
Spitzer is in Washington, D.C., with Assistant District Attorney Shawn Nelson, meeting with federal prosecutors, who have been investigating the Sheriff’s Department and District Attorney’s Office since the informant scandal that erupted out of the Dekraai case.
Barnes told CNS that he asked Spitzer to give his department a list of all the cases that prosecutors filed charges on among the cases that were audited since February 2016. Barnes said that would be easier than reviewing all of the cases referred to prosecutors for filing of charges.
In a letter to Barnes dated Wednesday, Spitzer said he would assign two prosecutors “to coordinate with your department and to review the information contained in these audits in order to determine what, if any, additional steps need to be taken in order to fulfill my office’s legal and ethical obligations.”
Spitzer accused the Sheriff’s Department of “sporadically” submitting over two years a “series of seemingly unrelated 17 criminal investigations into OCSD deputies for their apparent failures to either book evidence in a timely manner or failure to book evidence at all.”
The top prosecutor added that “it is entirely inappropriate for your staff to publicly assert that my office had knowledge of the existence of a department-wide audit when we clearly did not.”
Barnes said he referred 15 cases against deputies for criminal charges, but prosecutors rejected them. Nelson has told CNS that they just didn’t rise to the level of a crime in the view of prosecutors and were mostly cases of sloppy bookkeeping.
“There’s a big difference between criminal conduct and a violation of their administrative requirements,” Nelson said in an interview last month. “They still can lose their badge and get fired, but we’re not the HR department for the Sheriff’s Department.”
Barnes said his office reviewed 27,091 bookings and audited 98,676 reports and scrutinized 1,535 deputies since they became aware of problems with bookings in January 2018.
It’s been policy of the department for a deputy to book evidence at the end of a shift, but the audit was showing some waited days, weeks or even months to do it. In most cases, the evidence was digital or photographic, Barnes said.
In one case, deputies were unable to track down an ATM card, but had the number in their records so the bank and credit card company were notified. That discovery was made in a secondary audit of 450 cases, which showed evidence, mostly digital and photographic, missing in 57 of those cases.
Barnes said there was no widespread problem with contamination of physical evidence such as drugs or weapons. He said he ordered a second audit in August 2018 “for ethical reasons,” even though he didn’t have to.
The sheriff said at least 50 letters went out to attorneys from the District Attorney’s Office alerting them of the issues with evidence.
“There have been no cases impacted, absent one,” Barnes said, referring to the case involving the missing ATM card. In every other case, the evidence was eventually booked.
“Several of those letters went to West Court where (Sanders) is the supervising public defender,” Barnes said.
Part of the problem was some deputies were sending photographic and digital evidence straight to the crime lab, which was recommended in a policy manual, though it wasn’t the correct protocol under the department’s policy, Barnes said.
Sanders said Barnes and Spitzer had a duty to red flag the problem with defense attorneys as soon as possible. Barnes likened it to proclaiming “the final score at halftime,” when sheriff’s investigators had not yet finalized their review of the problems.
Sanders said he is unaware of any attorneys who were informed the sheriff was auditing thousands of cases in what they viewed as a systemic problem.
“They’re saying they had problems on cases and revealed that to particular defendants, and that’s intentionally missing the point,” Sanders said. “The point is we needed to know that in thousands and thousands of cases the evidence was booked late,” Sanders said. “The law is that if you have deputies mishandling evidence 20 to 30 days later then you have to make disclosures on that.”
Barnes said there’s no law requiring a deadline on booking evidence — it’s just the department’s policy to do it by the end of a deputy’s shift. The sheriff also accused Sanders of exaggerating the number of cases affected, but the defense attorney said he was using the percentage the sheriff’s own audit produced to estimate the number of cases with missing evidence.
Barnes said he is considering a proposal to hire an independent firm to go over the results of the audits and to make further recommendations on reforming the booking process.
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