An ongoing legal battle is back in court next week over whether to lift a veil of secrecy around records showing what officials knew – and when – about a sheriff’s deputy found to have falsely stated in 74 different reports that he had booked evidence.
The hearing next Tuesday stems from a filing last month by Assistant Public Defender Scott Sanders, who requested Judge Cheryl L. Leininger lift a protective order she issued Oct. 4 around records of Deputy Bryce Simpson’s alleged misconduct.
DA officials previously declined to prosecute Simpson, but say they’ve re-opened a criminal investigation in recent weeks, following news reports of widespread evidence booking problems at the Sheriff’s Department that were kept secret for years.
In his Jan. 21 court filing, Sanders alleged DA officials put inaccurate info in a proposed protective order – ultimately signed by the judge on Oct. 4 – requiring secrecy around a sheriff’s criminal investigation report into Simpson’s alleged misconduct. The order said the records were confidential, among other reasons, because of a court precedent that “evidence gathered by police as part of an ongoing criminal investigation is by its nature confidential.”
Sanders wrote that he’s since learned that there was no criminal investigation at the time of the order, because, he says, DA officials had declined to prosecute Simpson by January 2019.
As of Monday, almost three weeks after Sanders filed his allegations, DA officials have not replied in court.
The DA’s office, asked by Voice of OC for comment, said they would be responding in court.
“This is pending litigation and we will litigate any issues in a court of law,” DA spokeswoman Kimberly Edds said Monday.
The DA’s office was originally scheduled to respond to Sanders’ allegations in Leininger’s courtroom last Thursday – more than two weeks after Sanders filed his claims. But at the scheduled hearing time, DA officials said they were not yet prepared to respond.
Hours later, Judge Kevin J. Haskins said he was told Leininger was on vacation until Saturday, Feb. 15. He rescheduled the hearing for next Tuesday, Feb. 18 before Leininger, citing court precedent for having the original judge decide whether to lift an order they issued.
Among the records in play are a 31-page Sheriff’s Department report about Simpson, who sheriff officials found submitted 74 reports containing false statements about whether evidence was booked. The report would show what high-ranking prosecutors knew about his alleged misconduct before declining to prosecute him.
Sanders wrote in his motion that he learned recently the DA’s office had quietly decided months before the order – by January 2019 – not to prosecute Simpson. DA officials have recently said they’ve started investigating Simpson again, though that appears to have started this year, well after the Oct. 4 hearing where the order was signed.
In declining to respond in court Thursday, prosecutors cited an ongoing investigation related to the records.
When Court Commissioner Jennifer M. Contini noted the DA’s office said they weren’t ready to present their case, prosecutor George Smith replied, “that’s correct, your honor.”
Sanders told the court the seal’s lifting was “long overdue.”
“We should have had that [document provided to us] 11 months ago without a protective order,” Sanders told Contini, adding he had learned there was no ongoing criminal investigation at the time of the order.
“Our position is, we’re well overdue,” Sanders said. “I haven’t heard anything disputing this from the prosecution,” he added, saying prosecutors want more time, “but we timely field this motion.”
Simpson’s records are part of an ongoing evidence booking crisis where sheriff’s deputies were booking evidence late – or not at all – and in some cases found to have falsely said evidence was booked.
For at least two years, Sheriff Don Barnes’ department kept secret the evidence issues, which now have the potential to affect thousands of criminal cases.
In late January, District Attorney officials confirmed to Voice of OC that their ongoing review – only 2 percent complete – has 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.”
An internal Sheriff’s Department audit – kept under wraps for almost two years – 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.
Barnes announced in a news release last week that the Sheriff’s Department is conducting a review of 22,000 cases and working “collaboratively” on it with the DA’s office, which revealed its probe of 22,000 cases a week earlier.
The sheriff’s release said their review has gone through 1,500 cases – about 6 percent of the total – but did not say how many affected cases have been identified in addition to the 91 DA officials said they found as of last week.
Asked if the Sheriff’s Department is involved with the DA’s criminal investigation, the sheriff’s office said their department provides investigation reports to the DA for prosecution decisions.
“Internal criminal investigations are conducted and then turned over to the District Attorney’s Office for filing consideration,” Barnes’ office said in a written response to questions last week.
DA officials said they are not working with sheriff officials on the new criminal investigation of the deputies.
“We are engaged in our own criminal investigation that is not in collaboration with the Sheriff’s Department,” Edds, the DA’s spokeswoman, said Monday.
Among the information that’s come out publicly so far, Simpson has the highest number of allegedly false reports about evidence.
Of his 74 allegedly false reports about evidence, 32 were part of criminal cases filed in court, according to District Attorney officials.
It is a crime in California for law enforcement officers to knowingly file false information in a police report.
The Orange County sheriff’s deputies’ union, which is responsible for ensuring deputies have legal representation, issued the following statement about Simpson when asked for comment last month: “The allegations reported in the media against this deputy are serious and, if found to be true, could lead to substantial discipline. Our role as a professional law enforcement labor organization is to ensure our members have access to quality representation and that they are treated fairly.”
District Attorney Todd Spitzer, who ran for election in 2018 on a platform of reforming the DA’s office, has kept the same prosecutor in charge of the unit that decides whether to prosecute law enforcement officers.
Senior Deputy DA Ebrahim Baytieh, who leads the unit – known as special prosecutions – took on a high-profile role five years ago defending the DA’s office after a judge found prosecutors had systemically misused informants, in what become known as the “snitch scandal.”
Judge Thomas Goethals, in a March 2015 ruling, kicked the entire DA’s office off the 2011 Seal Beach mass shooting case after finding sheriff’s deputies “either intentionally lied or willfully withheld material evidence from [the] court.”
At a highly-attended public debate later that year, Baytieh said no one at the DA’s office intentionally hid evidence.
“The notion that there is any effort on anybody’s part, at any level, to intentionally hide evidence…is from our perspective absolutely false,” Baytieh said at the October 2015 debate at Chapman University’s law school.
However, an appellate court later found the DA’s office had participated in “intentional or negligent” withholding of information they were required to provide defendants.
In its November 2016 appeals court ruling, which examined he same testimony Goethals did in his March 2015 ruling, described what it called “the OCDA’s intentional or negligent participation in a covert [informant] program to obtain statements from represented defendants in violation of their constitutional rights, and to withhold that information from those defendants in violation of their constitutional and statutory rights.”
Additionally, it found two sheriff’s deputies had testified falsely in a court hearings about the issue, by concealing the existence of a key computer system that documented how inmates were moved.
“There was overwhelming evidence supporting the trial court’s conclusion [that the two deputies] intentionally lied or willfully withheld information at the first hearing,” the appeals court found.
Clarification: This article has been updated to clarify statements from the District Attorney’s Office and appeals court in 2015 and 2016 regarding the informants scandal.
Nick Gerda covers county government for Voice of OC. You can contact him at firstname.lastname@example.org.