While authorizing new spending this week for the Orange County Sheriff’s Department, county supervisors continue to remain silent about mounting revelations of Sheriff’s Department evidence booking misconduct that could weaken thousands of criminal cases.

Voce of OC reported early Tuesday that prosecutors have found 91 cases so far where someone was convicted of a crime but “evidence was either never booked or booked after a defendant was convicted.”

As the county’s top civilian elected officials, state law gives the county supervisors authority over the Sheriff’s Department’s budget. The supervisors also are in charge of defending the Sheriff’s Department from lawsuits and legal claims – including any lawsuits that may arise out of the evidence booking delays – and finding the taxpayer money to pay out settlements and court judgements that arise from misconduct allegations.

At their regular meeting Tuesday, county supervisors approved an extra $175,000 for the Sheriff’s Department to buy a Rapid DNA profiling machine, as part of a quarterly sheriff and DA budget update that does not mention any need for staff resources to address the evidence scandal.

Meanwhile, DA officials say they have a team of prosecutors going through 22,000 cases over the coming months.

None of the five county supervisors – Michelle Steel, Andrew Do, Don Wagner, Lisa Bartlett, and Doug Chaffee – mentioned the evidence problems.

Calls and texts for comment to all of the supervisors were either not returned or answered with a decline to comment.

Prosecutors and Assistant Public Defender Scott Sanders are now gearing up for a court hearing next Thursday, Feb. 6 on whether to lift protective orders that block public disclosure of sheriff misconduct records about evidence booking problems. Orange County Superior Court Judge Cheryl Leininger will ultimately decide the issue.

The DA’s findings so far of 91 impact cases contradict Sheriff Don Barnes’ downplaying of the problem, when he publicly said the evidence problems were limited to “a few” pieces of evidence that continue to be missing, and said last month that “There have been no cases impacted, absent one.”

National Public Radio also reported that in an interview, Barnes “insisted that the sheriff’s department has had custody of all evidence involved in cases that have already been decided by the courts.”

But prosecutors have found 71 cases where evidence was never booked, out of the 91 affected cases found so far, DA spokeswoman Kimberly Edds told Voice of OC on Monday. And prosecutors are only about 2 percent of the way through the cases they plan to review.

Barnes’s spokeswoman has said his remarks were only about a smaller audit of 450 cases, though he spoke broadly of the evidence issues in his quotes.

Internal Sheriff’s Department audits – kept secret for two years by the former and current sheriff until reporters learned of it in November – found hundreds of instances of late or missing evidence.

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.

One of the sheriff’s own internal audits 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.

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 November, after Sanders revealed the secret audit’s existence in a court filing.

“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 in a November letter to Barnes.

The evidence problems have the potential to unravel criminal cases and cause jail time to be reduced – or eliminated altogether.

“When you don’t have a prompt booking of the evidence, then there can be an argument that evidence has been somehow tampered with or something, if it doesn’t go directly from the scene to the evidence locker,” said Mario Mainero, a law professor at Chapman University who wrote a legal textbook about evidence rules in court.

“When you’ve got these delays [in booking evidence], you’re essentially raising reasonable doubt as to accuracy of the chain of custody,” he added.

The law requires prosecutors to prove in court that evidence is what they say it is, he added. “If you can’t prove that, you lose,” Mainero said.

Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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