OC Sheriff Don Barnes on Friday defended management’s handling of an evidence booking scandal that could jeopardize thousands of criminal cases, saying he and other executives ensured that misconduct was properly addressed.
District Attorney Todd Spitzer in recent weeks announced he had reopened criminal probes into 17 deputies, who the Sheriff’s Department referred for criminal prosecution but were previously cleared.
Spitzer took issue with Barnes, saying his department never told the DA’s office about the systemic nature of what internal audits had found until last fall, almost two years after the reviews were completed.
Barnes, whose largest supporter in his 2018 campaign was the Orange County’s deputy sheriff’s union, has defended his handling of the evidence-booking crisis.
“We’ve been all-in on holding people accountable, all-in on finding change,” Barnes told Voice of OC in an interview Friday after his administration’s first, monthly news conference.
Barnes made a commitment in early February to hold monthly news conferences, right on the heels of a drumbeat of disclosures about deputies not properly booking evidence in criminal cases.
“There’s no cover-up anywhere,” Barnes said, pointing to audits his department conducted into the issue. “If you look at the timeline of this and everything we’ve done, it’s always been responsive, aimed at holding people accountable and implementing change.”
A Sheriff’s Department audit 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 over a two-year period.
The disclosures last November prompted questions about how the problems were allowed to continue for years, and apparently weren’t promptly disclosed to defense attorneys as the law requires.
At Friday’s news conference, Barnes primarily focused on coronavirus preparation, while also mentioning the evidence booking issues among the five topics he wanted to discuss.
Yet Barnes’ demeanor visibly changed after a Voice of OC reporter questioned his department’s handling of the evidence booking crisis.
Asked whether he believed there was a systemic problem with deputies booking evidence properly at his department, Barnes said his management staff have “concluded administrative investigations, disciplined them appropriately, identified protocol gaps, put in evidentiary safeguards, put in checks and balances of all that, (and) ordered a second audit to make sure that we’ve identified what issues that validate if the system was flawed, or where it might need to be corrected.”
“All those things were done,” Barnes added. “What more would you want to be done than those things?”
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.
In at least one case, sheriff officials kept a deputy in the field doing investigations for months after they learned he made numerous false statements in police reports about evidence booking. It took more than a year for officials to notify defense attorneys about his false statements.
Earlier this week, new evidence was introduced in court that sheriff managers promoted a deputy, Phillip Avalos, to sergeant after finding he had booked evidence more than 30 days late most of the time, which sheriff policy forbids and could put criminal cases at risk.
Avalos is among the 17 sheriff deputies that Orange County District Attorney Todd Spitzer has reopened criminal investigations into since November, after the DA’s office declined to prosecute them previously from 2017 until mid-2019.
Barnes declined to discuss specific cases, citing laws protecting police officers’ privacy. But he laid the evidence booking problem squarely on individual staff members and gaps in evidence booking protocol.
“I’m tremendously disappointed with the individuals who created this problem. And I believe they know that I’ve made clear to this organization, that that is intolerable for me to have people fall short of things like evidentiary responsibility,” Barnes said. “This will not be replicated. I think we’ve got safeguards in place. And we’ve corrected the issue.”
Asked if some of the deputies who were disciplined for violating evidence booking policies are back in the field, Barnes said yes.
“I can’t talk about individuals, but those who have served their discipline, yes they are still employed at the Sheriff’s Department,” Barnes said. “The purpose of discipline is not to permanently banish somebody.”
“In fact, by law I cannot separate out or treat somebody differently because of discipline. Discipline is intended to correct the behavior. And once that discipline is imposed and served, they come back into the organization. The expectation is that they will be a contributing member of the Sheriff’s department do their job appropriately and absent any new violations.”
Five of those employees have been “separated” from the department, while seven were disciplined and remain employed by the department, Barnes said.
“We have appropriately implemented safeguard policies to either eliminate things that weren’t working or implement things that will work, and we have the appropriate oversight to ensure that they do,” Barnes said.
During his news conference Friday, Barnes said that as of January, defense attorneys had not responded to letters about evidence booking issues that could have impacted clients’ cases.
However, after follow up questioning by Voice of OC, the county’s lead public defender, Sharon Petrosino, said up until mid-January many of the letters were sent to attorneys who no longer work at her office or to the public defender’s office’s old address.
“Through this process, letters were sent to attorneys of record … more than 50 letters went out. As of January of this year, none of those attorneys have been responsive to those letters,” Barnes said during the news conference.
Petrosino, in a Friday phone interview, said that after a Jan. 15 meeting she had with Barnes, the sheriff followed up the next day with the DA’s office and Petrosino received all the letters the DA’s office had tried to send to her public defenders.
Before then, she said, the letters “were never sent in a way that I could be made aware of the widespread evidence problem or that there was even a problem.”
“So from that point on [in January], we have received a fair amount of [evidence disclosure from the DA’s office] and I expect it’s going to be ongoing. In the past few weeks, we’ve received more and more. And we’re in the process of contacting those clients and pulling those files and taking care of it,” Petrosino said.
Asked about this, DA officials said they had sent the letters to the official attorneys on the cases, which in some instances are years old.
“The only way that we can make notification is the attorney of record that’s listed on the cases,” said DA spokeswoman Kimberly Edds in a phone interview Friday with Voice of OC.
DA officials, including Spitzer, have emphasized they were not made aware until November of the widespread nature of the evidence problems – known to sheriff officials since at least 2018.
“We immediately sent letters to the attorneys of record on these cases. Neither the District Attorney nor the Public Defender were made aware of the scale of the issue until last November,” Edds said Friday.
There remain questions about why defense attorneys weren’t notified for more than a year – in at least one case – after sheriff officials found a deputy had made false statements about booking evidence. Barnes declined to discuss specific cases Friday.
A court hearing is scheduled for March 20 on a request by Assistant Public Defender Scott Sanders to lift a secrecy order that blocks him from publicly disclosing certain records of sheriff evidence misconduct. He has asked Spitzer’s office to join him in asking Judge Cheryl L. Leininger to lift the secrecy order
“Some clients pled guilty in cases where there was no evidence at all of their guilt,” Petrosino said. “And if that’s the case…some of those clients may be in custody right now on probation violations.”
“There’s a multitude of things that they may be doing as a consequence to having pled guilty. So, yeah, I think we need to get in touch with those people,” she said.
“Remember, most if not all of these officers are still testifying in cases,” she added, “and that’s information that we’re entitled to.”
Brandon Pho is a Voice of OC reporting fellow. Contact him at bpho@voiceofoc.org or on Twitter @photherecord.