For nearly two years, Orange County supervisors and the public were kept in the dark about a widespread evidence booking crisis at the Sheriff’s Department, which has the potential to affect thousands of criminal cases.
Sheriff Don Barnes, who was elected last year and served as second-in-command beforehand, has not said why it took so long to inform county supervisors, who are responsible for the Sheriff’s Department’s legal defense and funding levels. His spokeswoman did not answer repeated questions Tuesday asking for an explanation of the delay.
District Attorney Todd Spitzer, whose office prosecutes the criminal cases now potentially at risk, has publicly raised concerns he wasn’t told of the scale of the problems until last month, after Assistant Public Defender Scott Sanders revealed the secret audit’s existence in a court filing.
Sheriff officials say they learned of evidence issues in January 2018, and launched an audit the following month that found hundreds of cases where deputies failed to follow policy in booking drugs, cash, photos, and videos in criminal cases by the end of their shift.
In nearly 300 instances, the audits found evidence was booked more than a month late. The delays can raise questions about whether evidence was contaminated and the ability of prosecutors to verify to courts that evidence was truly collected. And in at least 57 cases, a second audit found deputies lied about booking evidence that they did not actually book.
The last of the audits was completed in February 2019, according to sheriff officials. But none of it became public until Nov. 18, when the Orange County Register published an article about the findings. On that day, sheriff officials first told county supervisors, noting a news story was coming.
There are mounting questions about why sheriffs Sandra Hutchens and Don Barnes apparently kept the scale of the issues under wraps. Barnes took office in January, and for more than a year prior served as Hutchens’ second-in-command and public face of the department.
Two county supervisors confirmed they were never told about the scale of the problems until the news media coverage spawned by the public defender’s disclosure.
“To be honest with you, the story you guys wrote today was the first that I had really heard about the issue,” Supervisor Don Wagner told Voice of OC on Monday, hours after the news organization published a column on the topic.
“Not in any way, any suggestion [from the sheriff that], ‘Oh this is a serious problem.’ And I don’t yet have the sheriff’s full explanation of everything,” Wagner said. “At this point, this is something that to my knowledge has not risen to the Board [of Supervisors] level.”
“The concern, of course, is that you jeopardize convictions and you jeopardize the rights of individual defendants to a fair trial. And neither of those are acceptable,” said Wagner, an attorney who is married to a local Superior Court judge.
“It’s worth taking a look at why it’s happening, is it a systematic problem, is it a series of one-offs – [which is] hard to believe given the numbers,” Wagner said.
Another supervisor, Doug Chaffee, said the only information he has about the evidence booking issues is what’s been reported in the news media.
“I don’t have any information about that, other than what’s come out publicly,” Chaffee said.
The three other county supervisors – Andrew Do, Michelle Steel, and Lisa Bartlett – didn’t return messages seeking comment.
Sheriff officials “formally notified the board” of the evidence issues about two weeks ago, on Nov. 18, according to the department’s chief spokeswoman, Carrie Braun. It was the same day the Register article was published.
The sheriff’s notice to supervisors began by saying, “As FYI, a media report is expected to come out today regarding a self-initiated audit that was done by the Sheriff’s Department on the booking of evidence.”
Braun did not respond to repeated questions asking why Barnes and former Sheriff Sandra Hutchens did not disclose the scale of the evidence issues to the DA, Board of Supervisors, and public for almost two years.
District Attorney Todd Spitzer – whose office reportedly declined to prosecute 15 criminal referrals from the Sheriff’s Department related to the evidence-booking problems – is posing pointed questions and airing concerns that Barnes didn’t alert him to the severity of the crisis.
“On Monday, November 18, 2019, at the briefing held at your headquarters, I first became aware that your office conducted a wide-scale internal audit of 98,676 Department Records (DRs) or sheriff reports to review evidence collection and booking by OCSD deputies over a two year period,” Spitzer wrote in a letter to Barnes three days after the briefing.
“I have concerns that my office may have filed and prosecuted criminal charges against individuals based on [Sheriff’s Department] reports that inaccurately stated evidence had been booked,” Spitzer wrote, asking for detailed information about affected cases.
Sheriff officials say they sent 15 investigations of employees to the DA’s office, which declined to file criminal charges. But Spitzer’s letter indicates the Sheriff’s Department didn’t disclose the larger scale of the problem until many months later, when news of it was about to break publicly.
Sheriff’s officials insist the DA’s office has been part of the process.
“We have been working with the District Attorney’s office throughout this process. As a result of the audit, fifteen criminal investigations were submitted to the District Attorney’s Office, and no charges have been filed,” Braun said in a statement.
“As a result of the Department’s administrative investigations into our employees’ conduct, four deputies have been dismissed, seven have been issued discipline, and four internal affairs investigations are ongoing.”
Sheriff officials are declining to release the audit reports themselves. Ten days after Voice of OC filed a Public Records Act request for them, sheriff executive Kirk Wilkerson responded they need up to 14 more days to decide whether to release the audit reports. He cited “the need for consultation with other division representatives having substantial interest in the determination of the request.”
Mario Mainero, a law professor at Chapman University who formerly worked at the county, said the public should be able to see the audits with some basic redactions.
“So long as the audits do not include specificity as to particular individuals, then they absolutely should be able to see the audits to see the effectiveness of whatever’s in place, absolutely,” Mainero said in an interview.
“The problem is, when you have any significant delay in booking [evidence], there are all sorts of things that could go wrong. And quite frankly all sorts of reasonable doubt that a good defense attorney can raise.”
In such cases, he said, there’s a risk that “people are gonna go free who maybe ought not to. And that is a really serious problem that it seems to me that the county needs to fix.”
The audits are prompting questions about why the evidence problems were allowed to continue for so long, as well as the Sheriff’s Department’s policies for handling evidence. Sergeants who supervised deputies previously were not required to confirm evidence mentioned in reports was actually booked.
“The requirement for Sergeants to confirm evidence noted in reports has been booked came as a result of the initial audit, which concluded in March 2018,” Braun said in an emailed response to questions this week.
After the 2006 jail beating death of Derek Chamberlain, Orange County supervisors established a form of civilian oversight over the Sheriff’s Department known as the Office of Independent Review or OIR. The idea was to have an outside expert monitor the department, identify systematic problems and put forward best practices to prevent legal risks.
But the oversight office has been vacant for most of the last three years, including for all of the last six months.
The last OIR report was issued in 2015. And the complaint section of its website now directs people to file an internal Sheriff’s Department complaint.
“That’s really unfortunate,” Mainero said of the complaint link. He and former Supervisor John Moorlach led the effort to establish the oversight office, when Mainero served as Moorlach’s chief of staff.
“The concern has become obvious” in not having independent oversight, Mainero said.
“The concern is that you leave it to a [Sheriff’s] Department which unfortunately has some history of serious problems. You not only had the Derek Chamberlain [death], the Dekraai situation, where you’ve got all of this information regarding the employment of jailhouse informants not being disclosed despite the requirement” from the Supreme Court in Brady vs. Maryland, Mainero said.
“And now you have the booking issue. So you have three, major, serious problems in the operation that, in one case resulted in the death of an inmate, and in the other situations have resulted in the dismissal of cases [and] the throwing out of the death penalty in the Dekraai case. So we have these major problems,” he added.
“Will the OIR person solve them all? Not necessarily. But having no kind of independent oversight is far worse than having even the kind that we had [with OIR].”
County supervisors, meanwhile, have suggested a different oversight model may be needed, but haven’t publicly put forward any alternatives.
Chaffee said he didn’t think OIR is “equipped” to deal with the evidence handling issue and that it’s not within the office’s “expertise.”
“I don’t have a whole lot of issue with the OIR, and certainly because it’s been vacant haven’t seen any significant output from the office at all,” Wagner said. “And so I am not prepared to say that it is an absolutely critical department that needs to be filled. There may be other ways to [have] the oversight, but I don’t know what [that is].”
While county supervisors have largely ignored the issue of police oversight in recent years, Mainero warned that administrative missteps by sheriff’s officials have already had serious consequences for the general public, specifically in the informants’ scandal.
“You don’t protect the public by committing violations of constitutional law and state law that allow for charges to be dropped, people to be released, things like that,” Mainero said. “That’s just not the way to practice public safety.”
Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.