Questions Mount for Sheriff and DA About Systemic Errors in Preparing Criminal Cases

JULIE LEOPO, Voice of OC

Orange County Sheriff Don Barnes (center) looks on as District Attorney Todd Spitzer points at him during a January 2019 Orange County Board of Supervisors meeting.

Questions continue to mount about why senior Orange County law enforcement officials – including Sheriff Don Barnes and prosecutors under DA Todd Spitzer – kept silent on a brewing scandal revolving around the inability of Sheriff’s Deputies to properly handle evidence in criminal cases.

There are indications that systemic evidence booking problems by Sheriffs Deputies could jeopardize thousands of criminal cases. District Attorney officials previously declined to prosecute at least 17 deputies over evidence booking issues, while DA Todd Spitzer recently said he’s re-opened the probes and is personally investigating.

On Tuesday, it was publicly disclosed in Orange County Superior Court that sheriff officials kept a deputy in the field doing investigations months after they learned he made numerous false statements in police reports about evidence booking. Officials also allegedly failed to uphold their legal duty to tell defense attorneys about his false statements.

The claim by Assistant Public Defender Scott Sanders – who has had court-approved access to an internal Sheriff’s Department report about the deputy’s conduct – went unchallenged by DA and sheriff officials.

In 2018, the Sheriffs Department found that in 74 different reports, Deputy Bryce Simpson claimed evidence was booked, when in fact there was no record of some or all of that evidence actually being booked, according to public disclosures after the evidence scandal broke this past November.

Simpson’s false statements were revealed to sheriff officials in March 2018, yet he remained in the field – and investigated at least one defendant in July 2018 – without disclosure to defense attorneys about the findings of false reports until fall 2019, Sanders said during Tuesday’s court proceedings.

Theres ample knowledge about fairly shocking conduct…Its false reporting again and again and again,” Sanders told the court.

In the case of a defendant investigated by Simpson and charged in November 2018, the report on Simpson’s false statements wasn’t disclosed to defense attorneys in fall 2019 – “nearly a year later than it should have been,” Sanders told Judge Cheryl L. Leininger in court Tuesday.

Sanders revealed the timeline at a dramatic court hearing about whether to unseal a misconduct report about Simpson, which was attended by Spitzer – who is Orange County’s top prosecutor – and his second-in-command, Shawn Nelson.

None of the DA officials disputed Sanders’ timeline about Simpson, and declined to respond to Sanders’ questions in court about when the criminal investigation of deputies was reopened and why.

Spitzer’s office, citing the ongoing court proceedings, declined after the hearing to say why disclosures weren’t made to defense attorneys about Simpson for months

Barnesspokeswoman did not have an answer Tuesday for why Simpson was kept in place after higher-ups learned of his allegedly false report, and why defense attorneys were not notified about Simpsons alleged false statements until many months later.

Prosecutors are required to turn over to the defense all materials that hurt their case or help the defendants case, under state law and a U.S. Supreme Court decision known as Brady. If they don’t, it can put criminal cases at risk by introducing reasonable doubt.

The Sheriff’s Department’s previous handling of Simpson’s and other deputies’ evidence issues could have wide-reaching implications for criminal cases.

An internal Sheriffs Department audit – kept under wraps for almost two years but revealed by the press in November – 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.

In late January, District Attorney officials confirmed to Voice of OC that their ongoing review – only 2 percent complete – had found 91 criminal cases so far where someone was convicted of a crime but “evidence was either never booked or booked after a defendant was convicted.”

At Tuesday’s hearing, Sanders was asking the judge to lift an order sealing a 31-page report on Simpson’s evidence conduct, which Sanders contends was improperly sealed in the first place.

District Attorney officials said Tuesday the report should remain sealed because Spitzer has re-opened a criminal investigation into the 15 to 17 deputies – including Simpson – the DA’s office previously declined to prosecute over evidence booking issues.

But in an argument that appeared to resonate with the judge, Sanders said the DA’s office has recently been disclosing evidence misconduct reports – about Simpson and other deputies – without sealing orders. He questioned why the DA was trying to keep Simpson’s report sealed in this case but not others.

Im aware of a total of eight deputies where information has been shared without a protective order,” Sanders told the judge.

Prosecutors emphasized there’s an ongoing investigation that justifies keeping Simpson’s report sealed.

“There is a criminal investigation into this deputy. Special prosecutions believes that dissemination of this information would hinder that investigation, and we are requesting that that order remain,” said Senior Deputy District Attorney Cynthia Nichols.

The judge gave prosecutors about a month to examine what they’ve been distributing without sealing orders, and to potentially reconsider their position.

If there have been other cases where this information has already been released, as Mr. Sanders has indicated, is that something that would assist you [in maybe] changing your position [on whether this order] should remain in place?” Leininger asked DA officials.

It may be something the people may want to change their minds about, or reassess,” or continue to have same position, the judge added, referring to prosecutors.

DA officials received a criminal referral on or around Oct. 22, 2018 about a deputy failing to book evidence in 74 cases – which matches with Simpson’s case – according to information the DA’s office provided to Voice of OC in response to a Public Records Act request.

DA officials then issued a letter regarding their decision not to file criminal charges against that deputy on Jan. 17, 2019 – 10 days after Spitzer took office, according to a DA public records response.

It was under Spitzer’s administration, which began in January 2019, that DA officials declined to prosecute 10 sheriff’s deputies over evidence issues, according to public records. Eight of the letters declining to prosecute were issued in January 2019 after Spitzer took office, and two were issued in July 2019.

In a brief interview after Tuesday’s court proceedings, a Voice of OC reporter asked Spitzer when he learned that the DA’s office, under his administration, was deciding not to prosecute deputies over evidence issues.

Spitzer said 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.

He emphasized, as he has repeatedly, that the Sheriff’s Department did not disclose to him the widespread evidence booking issues until November 2019, when it was about to become public through the efforts of Sanders and a reporter at the Orange County Register.

Spitzer’s office, citing the ongoing court case, declined Tuesday to say why Ebrahim Baytieh and the special prosecutions unit – which he oversees and handles prosecution decisions about law enforcement officers – apparently didn’t notify Spitzer sooner about the prosecution decisions. Baytieh did not return a phone message and email seeking comment.

Sanders questioned why the DA’s office hasn’t already prosecuted Simpson.

Its a deputy repeatedly describing collecting evidence, and booking evidence, when he unquestionable did not book it. That seems to be plenty, ample evidence for prosecution,” Sanders said.

One well-known observer of Tuesday’s court proceedings – who previously campaigned for Spitzer – said after the hearing that he was troubled by what he saw.

Its the same DAs Office with the same players dodging the same questions and going around,” said Paul Wilson, whose wife was killed in 2011 in Orange Countys deadliest mass shooting. He became a supporter of Spitzers 2018 election after prior DA Tony Rackauckas’ administration botched the prosecution of Wilson’s wife’s killer, in what became known as the jailhouse informants scandal.

“Im sitting in a courtroom seeing the same corruption that I saw for six years,” Wilson said, noting some of the same prosecutors from the snitch scandal are still in place.

“We have the same bad actors, we just have a different name on the door. It says ‘Spitzer’ instead of ‘Rackauckas.’ Its the same DAs office,” Wilson said.

Spitzer’s office disputed that view.

“Nothing could be further from the truth,” DA spokeswoman Kimberly Edds said in a statement.

“District Attorney Spitzer has made it unequivocally clear that he is committed to justice and will review new evidence at any stage of the court proceedings, including post-conviction, to ensure the rights of victims and defendants are protected. That is exactly what is happening in this case.”

Clarification: This article has been updated to more precisely describe Spitzer’s answers to questions about when he learned the DA’s office, under his administration, had decided not to prosecute deputies for evidence issues.

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