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District Attorney Todd Spitzer said Wednesday he was informed four months into his administration about a decision days after he was sworn in to not file charges against a sheriff’s deputy found to have made 74 false reports about evidence booking.
Spitzer – who recently re-opened the investigation of Deputy Bryce Simpson and more than a dozen other deputies accused of not booking evidence in criminal cases – said he was made aware in May 2019 of DA criminal investigations into Simpson and Deputy Joseph Atkinson that ended in January 2019 with no charges.
A subsequent DA review led to them being placed in May on the Brady list, which details law enforcement officers found to have engaged in misconduct that could cause their testimony to be thrown out.
“At the time that my office informed me about the Brady review of Simpson and Atkinson in May of 2019, they had indicated that there was a criminal review conducted by [Deputy DA] Susan Laird,” Spitzer said in an interview with Voice of OC Wednesday, following up on questions a reporter raised the previous day.
“But in no way did the District Attorney’s Office understand, or did the memo in any way imply [there was a widespread issue]. In fact, it said just the opposite: that there was review of a few deputies,” the district attorney added.
“There was a systemic issue that I only became aware of in November when I had my briefing from the Sheriff’s Department.”
In November, a public defender’s court filing and an upcoming press report prompted Sheriff Don Barnes to reveal to the DA the existence of internal Sheriff’s Department audits showing systemic evidence booking problems that Barnes’ department kept secret for two years.
Failures by the Sheriff’s Department to ensure evidence was booked could jeopardize thousands of criminal cases.
One of the Sheriff’s Department audits identified 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 raise questions about whether evidence was contaminated and the ability of prosecutors to verify to courts that evidence was truly collected.
Many of the evidence revelations have been brought to light by Assistant Public Defender Scott Sanders, who has been seeking to lift a court order blocking him from publicly releasing a 31-page Sheriff’s Department report on Simpson’s alleged wrongdoing.
Sanders has asked Spitzer’s office to join him in asking Judge Cheryl L. Leininger to lift the secrecy order, while noting DA officials have been releasing other evidence misconduct reports about deputies without secrecy orders. A court hearing on the issue was held Tuesday and is scheduled to resume on March 20, and DA officials haven’t yet filed a written position on Sanders’ Jan. 21 request to lift the secrecy order.
District Attorney officials previously declined to prosecute at least 17 deputies over evidence booking issues. Eight of those decisions – including on Simpson – were finalized by DA staff during the 15 days after Spitzer was sworn in as DA on Jan. 7, 2019.
Spitzer says he has re-opened criminal investigations into the deputies and is personally investigating.
In late January, District Attorney officials confirmed to Voice of OC that their ongoing review – only 2 percent complete at that point – had found 91 criminal cases where someone was convicted of a crime but “evidence was either never booked or booked after a defendant was convicted.”
Simpson and Atkinson are two of the biggest known cases of deputies allegedly making false statements about evidence booking. Their names came up in open court Tuesday, the same day public records showed DA prosecutors declined to prosecute eight of the 17 deputies, including Simpson, during the early days of the Spitzer administration in January 2019.
That prompted a Voice of OC reporter to ask Spitzer in a courthouse hallway Tuesday about when he learned that the DA’s office, under his administration, was deciding not to prosecute deputies over evidence issues.
Spitzer responded that before a briefing in November 2019 – about 10 months into his administration – he had been told only about Brady reviews of deputies, not the systemic nature of the evidence issues. Brady refers to prosecutors’ legal obligation to tell defense attorneys about information they have that could help the defense’s case.
In a follow-up interview Wednesday, Spitzer said he was made aware of the DA’s criminal investigations of Simpson and Atkinson in May 2019 as part of a memo about the DA’s Brady reviews of the deputies.
Spitzer has emphasized he was not made aware of the sheriff’s systemic evidence problems until November 2019, when sheriff audits from two years prior were about to become public in the Orange County Register and a court filing by Sanders.
Yet sheriff officials emphasize the DA’s office was informed of 15 individual deputies’ evidence issues, pointing to their criminal prosecution referrals to the DA’s office that started in August 2017.
Barnes’ office hasn’t said why the audits on systemic evidence issues apparently were not disclosed to the DA’s office sooner, given the implications for criminal cases the DA prosecutes.
Asked on Wednesday why he decided to re-open the criminal investigations of the deputies, Spitzer said the revelation of systemic evidence problems in November prompted him to take another look.
“When I was told about the systemic audit in November of 2019, and then with hindsight and an understanding that these cases have been trickling in – but they were unconnected in any real way by either time or a summary by the Sheriff’s Department that these were related to a system-wide audit – I felt it was very important to look at the whole situation again given the wide problem, the extent of the situation, and to make a determination as the elected district attorney whether this was negligence, gross negligence, malfeasance, laziness, violation of department policy or criminal, based on real admissible evidence and not conjecture or speculation,” Spitzer said in a text message to a Voice of OC reporter.
Nick Gerda covers county government for Voice of OC. You can contact him at firstname.lastname@example.org.