Norberto Santana, Jr.

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Orange County District Attorney Todd Spitzer is now scrambling to figure out whether the evidence that many of his prosecutors relied upon over the past two years actually existed when they pressed charges.

And he’s looking right over at Sheriff Don Barnes.

Late last month, right before the Thanksgiving week holiday, Spitzer shot off an ominous letter to Barnes warning that there’s a big homework assignment coming up for his agency.

“I have concerns that my office have filed and prosecuted criminal charges against individuals based on OCSD reports that inaccurately stated evidence had been booked,” Spitzer wrote to Barnes on Nov. 21.

Spitzer wants Barnes to find every case his deputies may have impacted by late evidence bookings over the past two years and get ready to be held accountable over what happened.

“As members of the same prosecution team, we must work together to protect the integrity of all criminal prosecutions and convictions in this county. My 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,” Spitzer wrote.


That’s something seriously lacking at the Orange County Sheriff’s Department, according to a now infamous Evidence Audit Analysis – a two-year look from 2016 to 2018 at over 1500 deputies and their handling of more than 27,000 bookings.

“No System of Accountability,” was one of four main issues identified in the audit, which also concluded that there was a lack of consistent entries into the property evidence system, 30 percent of evidence was booked out of policy and that there was insufficient booking software.

Here’s a copy of a presentation about the audit.

In looking over the audit analysis from the operations branch, nearly 10 percent of evidence bookings of narcotics, 456 items, were booked late, meaning that deputies stored evidence themselves.

About the same percentage for paraphernalia, with 227 items booked late.

And cash?

That had an even larger tardy average showing up late into evidence nearly 15 percent of the time, or 31 out of 227 times.

The worst rates for evidence bookings were for photos and videos, which only got booked on time around 67 percent of the time.

North County operations had the worst rates as a section for late bookings with almost 20 percent late rate.

North County investigations also were pretty late in booking evidence, taking an average 11 days vs. 2.6 in South operations to book evidence.

Spitzer, who also points in his letter to a second undisclosed audit with even worse compliance rates on evidence booking, put Barnes on notice that they both share deep responsibilities to correct the record.

“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 note booked,” Spitzer wrote.

He continued, “The conduct that you brought forward through your own investigative efforts, which I commend, has now created significant legal and constitutional obligations on my department.”

Here’s Spitzer’s full letter.

Orange County District Attorney Todd Spitzer at a January 2019 Orange County Supervisors meeting. Credit: JULIE LEOPO, Voice of OC

Barnes, meanwhile, sent Spitzer a message of his own sorts in a Nov. 18 press statement – issued after the Orange County Register published the first media report on the scathing audit – pointing to the fact that he sent off 15 criminal referrals to the DA for prosecution.

And Spitzer has yet to file on any of them, Barnes noted.

“As a result of the audit, fifteen criminal investigations were submitted to the District Attorney’s Office, and no charges have been filed.

In comparison, Barnes listed what’s happened on the Sheriff’s side.

“To date, four deputies have been dismissed; seven have been issued discipline, and four internal affairs investigations are ongoing,” Barnes stated.

Barnes argues his department took immediate corrective action, continues to audit and is proactively educating deputies on the importance of booking evidence within policy.

“Once this issue came to light we initiated an audit to determine the extent of violations, identified areas for improvement and held accountable those employees who were acting out of the scope of policy,” said Barnes in a department statement. “The audit achieved its intended goal and has made our agency better. I am confident the public will recognize that we took immediate measures to address the issue, implemented safeguards to ensure this does not recur, and have no patience for substandard performance or criminal behavior.”

Read Barnes’ full statement here.

Orange County Sheriff Don Barnes at a January 2019 Orange County Supervisors meeting. Credit: JULIE LEOPO, Voice of OC

Yet Barnes well-articulated policy missed one very important angle from a policy perspective as well from the role of a publicly elected official.

The public.

Nowhere in Barnes approach is there a public information component.

Indeed, Spitzer’s office notes that despite 15 referrals, there was no communication with the DA about the situation at the Sheriff’s Department and the systemic nature of what was uncovered.

It is remarkable that in his Nov. 21 letter to Barnes, that Spitzer notes that Mary Izadi, the Sheriff’s Constitutional Policing Advisor wrote a February 2019 report on this systemic issue – meaning that Barnes chose to keep the public and possibly county supervisors out of the loop on a pretty big policy issue for almost the entire year after being formally notified of its seriousness.

It’s also interesting to note that a Sheriff’s constitutional advisor saw a systemic effort that compromised constitutional rights and seemingly did nothing to alert the public.

Quite odd as well to hear that Spitzer’s DA special prosecutions unit was handed over evidence of 15 instances of evidence tampering by deputies and didn’t see a pattern themselves or take any action at all.

As usual, the people’s representatives, our civilian leaders, Orange County supervisors, are in the rear of this crisis – with little to say.

Supervisors, who have increasingly fundraised from the deputy sheriff’s union in recent years, have largely left department operations to the Sheriff and union. Other than funding supplemental budget requests, county supervisors seem rarely consulted or engaged from the public dais on law enforcement oversight issues.

Indeed, county supervisors’ one, frail and feeble effort to stay engaged on these issues – the Office of Independent Review (OIR), remains vacant after years of weak institutional and funding support with its last report issued in 2015.

OIR was founded after the jail beating death of inmate John Derek Chamberlain, who was murdered by other inmates while deputies were distracted. Given the troubling disclosures of how deputies ran the jail, county supervisors launched OIR but quickly backed away from empowering it to investigate, much less publicize anything about Orange County law enforcement.

Due to the ensuing absence of oversight from Orange County supervisors, the Orange County Public Defender’s office has stepped into a leadership role on criminal justice accountability issues.

Assistant Public Defender Scott Sanders put a public focus on the Sheriff Department’s jail operations in recent years by working through discovery motions in the case of mass murderer Scott Dekraii to identify an illegal jailhouse informants program inside Orange County jails.

Orange County’s current and former DA as well as the current and former OC Sheriff often vilified Sanders.

Yet he continues to be right, finding troubling trends inside the Orange County Sheriff’s Department, such as the most recent evidence collection scandal – with the scathing audit submitted alongside recent motions on a criminal case.

Judging from Spitzer’s letter to Sheriff Barnes and the laundry list of information he’s asking for, the implications from this latest scandal will be playing out for years to come.

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