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Criminal charges and convictions have been dropped against 67 people because of evidence mishandling at the Orange County Sheriff’s Department, prosecutors revealed Wednesday.

The dropped charges include assault, battery, possession of brass knuckles, check fraud, and smuggling a weapon into the Orange County jail, according to the DA’s office.

In 63 of the cases, the defendants already were convicted of the charges when prosecutors dropped them. In four of the cases, charges were dropped while the cases were still pending, prosecutors wrote in their list of affected cases.

The wide-ranging evidence scandal, which was publicly revealed in November 2019, involved dozens of deputies failing to book evidence they collected and in several cases making false statements in their police reports.

Two deputies – Bryce Simpson and Joseph Atkinson – have pled guilty to crimes for failing to perform their duties. A third, Edwin Mora, was indicted with a felony last summer for allegedly filing a false police report about evidence

The scandal had been kept secret by Sheriff Don Barnes for nearly two years until the Orange County Register was about to reveal it publicly.

The revelation of dropped charges came towards the end of a 9-page audit report District Attorney Todd Spitzer released Wednesday and the end of an accompanying news release.

“When District Attorney [Todd] Spitzer became aware of widespread evidence booking problems at the Sheriff’s Department, the District Attorney’s Office immediately took action to address the issue,” Spitzer’s office wrote in its audit report on the evidence scandal, which it released publicly on Wednesday.

Spitzer didn’t respond to a message seeking comment, while Sheriff Don Barnes issued a statement saying he’s held deputies accountable.

“Once this issue came to light, we determined the extent of violations, identified areas for improvement and held accountable those employees who were acting out of the scope of policy,” Barnes said.

“Randomized spot checks of booked evidence are being conducted regularly, and have confirmed that the new policy and procedures are being followed. I am confident the public will recognize that we took immediate measures to identify, address, implement safeguards to ensure this does not recur, and have no tolerance for substandard performance or criminal behavior.”

Sheriff’s officials testified to a grand jury last summer that supervisors knowingly allowed deputies to book evidence late in violation of policy.

But only deputies – and no managers – were disciplined for the evidence-booking violations, according to their testimony.

A sheriff executive testified deputies booked evidence within policy, though a “large number” of deputies booked evidence late in violation of policy and the problem was “department-wide.”

Deputies testified that the emphasis at their stations was on making arrests, not ensuring evidence was booked properly to make sure it stands up in court.

Grand jurors repeatedly questioned whether anyone in management was disciplined, and the answer was no.

Delays in booking evidence can affect criminal cases by prompting questions about whether the material was contaminated and if prosecutors can verify to courts the evidence is the same as what was collected from a crime scene.

It’s now incumbent on the DA to inform current and future defendants if a deputy in their case lied about booking evidence, according to the attorney who exposed much of the evidence scandal.

“Beyond the significance in terms of the enormous number of cases impacted, what is essential now is that defendants in pending and future cases are informed about the conduct of witnesses who in the past falsely reported booking evidence, failed to book evidence, or repeatedly booked evidence late,” said Assistant Public Defender Scott Sanders in a statement Wednesday.

And there’s still thousands of reports that DA and sheriff officials haven’t looked at to see if deputies lied about evidence, Sanders said.

“The other issue that remains is getting to the bottom of the tens of thousands of uncharged cases where personnel wrote in their report that evidence was booked evidence but it never happened,” he said.

“The [Sheriff’s Department] discovered through a partial study of 72,000 of reports where the case was never filed that 13 percent of them described evidence being booked that never was booked.  However, [sheriff officials] only examined 450 of these reports and the expanded DA audit was limited to only those 22,000 cases resulting in a conviction.”

“So there are, by OCSD’s own numbers, likely thousands of false reports that still have not been identified.  And false reporting is unquestionably the most serious conduct on the spectrum.”

While sheriff officials knew of widespread evidence booking problems by spring 2018, the DA says the sheriff never contacted him about the problems until November 2019 when it were about to become public in a newspaper report.

“District Attorney Spitzer had not been made aware of the extent of these audits previously and only became aware of the matter on November 15, 2019 when he was informed about it from a local newspaper reporter,” Spitzer’s office said in its Wednesday news release.

“Although [the Sheriff’s Department] believes the [DA] should have known, the [DA] questions why the Sheriff’s Department made it so difficult to understand the extent of the issues with evidence booking.”

Barnes has said his department did let DA officials know about evidence issues within reports to the DA about individual deputies being referred for possible criminal prosecution.

There was no public update about the evidence mishandling – and the dropping of charges in 67 cases – when Spitzer public spoke to county supervisors Tuesday in an annual audit update.

With his release of the evidence findings Wednesday, Spitzer says he’s now closed the books on the evidence probe.

“The DA’s Office systematic review of cases is now concluded, though if new or additional information is presented that warrants further follow-up, the DA’s Office will take appropriate action,” the DA report concludes.

“The DA’s Office will continue to review cases and provide notice to the defense when appropriate to ensure that defendants’ due process rights are protected, but because of remedial action OCSD has taken to address evidence booking deficiencies, there should be few, if any, negatively impacted cases in the future. “

The revelation of dropped charges comes as Sanders levels new allegations in court that law enforcement improperly listened to hundreds more attorney-client phone calls involving inmates than had been previously disclosed.

Sheriff Don Barnes disputes Sanders’ allegations. 

“We have clear Department policy that prohibits listening to attorney-client calls, and a procedure should attorney-client calls be inadvertently accessed,” Barnes said in a statement Wednesday responding to the allegations.

“To date, we have not received reports of attorney-client calls being inappropriately accessed.”

Sanders alleged in a court filing this week that more than 300 previously undisclosed calls between attorneys and jail inmates were accessed and listened to after a sheriff contractor recorded them.

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

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