Two audits showed Orange County Sheriff’s deputies holding onto evidence for days and sometimes weeks or longer before booking it. In addition, a separate audit showed evidence was missing.
The result is that the entire system in Orange County could be impacted – with many people potentially wrongly convicted, while others who committed crimes and were convicted could go free.
The Vanguard spoke with Public Defender Scott Sanders, the attorney who was at the forefront of the wide-reaching jailhouse informant scandal – and this one has the potential to become even bigger than that one, which led to the DA’s office being recused from a mass murder case, the death penalty thrown out, and the DA ultimately losing his reelection bid.
Now newly-elected Todd Spitzer finds himself on the hot seat along with Sheriff Don Barnes, who was undersheriff during the time the two-year audit took place.
The audit examined more than 98,000 reports and more than 27,000 evidence bookings by 1535 deputies between February 1 2016 and February 1, 2018. As Scott Sanders told the Vanguard, as was the case with the informant scandal, the actual problems could extend much further back in time and go much deeper.
This was not a routine audit. It came about from concerns that were raised and the Sheriff’s Department finally responded – undertaking a pair of audits. One looked at around 99,000 police reports over a two-year period, while the second audit looked at booked evidence.
“They’ve know for a long time that they have massive problems with how they handle evidence,” Scott Sanders explained. “For whatever reason they chose this moment to determine just how big a problem it was.”
The problem, according to the audit, is “systemic failures to timely book evidence.”
Scott Sanders explained that the 99,000 reports are basically the entirety of reports for a two-year period. Then they looked at the cases where the evidence was booked, which comes to 27,000 (which means that 72,000 reports don’t have any evidence booked).
“According to their analysis, 30 percent of the evidence is booked outside of policy,” he said, which calls for them to book it by the end of their shift. Sixty-four percent of deputies, he said, 1100 in number, “at least one time, on at least one report booked evidence 6 to 10 days late.”
That may not seem to be a big deal, but it creates a giant problem for the system because, in order for evidence to be admissible, there must be a clear chain of custody to account for its whereabouts and to ensure that it has been handled properly and not altered or planted.
Mr. Sanders said, “That’s the question of what are you doing with the evidence, if it’s not going into a locker… according to protocol.” Moreover, by mishandling the evidence there are questions of whether “it is going from one case to the next.”
As Scott Sanders pointed out, if they are keeping the evidence in their car or under their desk, “what is the chance that that chain of custody is intact and reliable? Very little.”
He said “if you’re in a trial, that might be the central point in your case.”
And yet, they were never told about these problems even when they became known to the DA’s office.
With the first audit, “they were never going to tell us about that, so that’s a big problem,” Mr. Sanders said. “That audit finishes 18 months ago, we all had a right to know about that.
“They have robbed defendants of the ability to explore those issues,” he said.
He said, “Under Brady that all should have been known by us and disclosed. But they weren’t going to do that.”
Under the Brady v. Maryland Supreme Court ruling, evidence that is potentially exculpatory must be turned over to the defense. This audit would appear to be evidence that calls into question the totality of evidence in all cases – putting all convictions potentially at risk.
The secondary audit looked at the 72,000 cases where no evidence was reported being booked.
“They finally disclosed that there’s 57 cases where they could not find the evidence,” Mr. Sanders said.
Not only did they not disclose this voluntarily, Scott Sanders, just like with the informant scandal, found out about the audits from a source.
The audit actually only looks at 450 randomly selected cases and found that there were 57 where evidence wasn’t booked.
What that means is it has become a source of controversy, because Scott Sanders extrapolated from the 13 percent that this means that 9000 cases overall were mishandled over the course of two years.
“To take that (data) and extrapolate that out is incredibly disingenuous,” Carrie Braun, Orange County Sheriff’s spokeswoman, said Friday.
But Scott Sanders disagrees.
“That’s exactly what they said was appropriate,” he said. “They said their percentage was 95 percent accurate.”
Scott Sanders believes that, if anything, that number is low – believing that “if they say it’s 13 percent, it could be 18 percent or 20 percent.” But using their own numbers, it comes to 9000 cases.
An important question is why aren’t defense attorneys discovering missing evidence in the ordinary course of handling their cases?
As it turns out, there were some cases where the defense was told there was missing evidence.
But often, if a defendant claims there is additional evidence, they have to go up against a sheriff who is denying that the evidence was collected in the first place.
“There probably have been cases where some of those issues have come up, but not to the level where I was ever aware of it,” he said, noting he had never heard of a systemic problem until now.
He noted in his own case, People v. Verelas, which brought some of this to light, he has argued that they have problems with the way evidence was handled in that case.
“You would have these battles in court and the officer would say, that wasn’t booked,” he explained.
One immediate problem is it now puts all cases in doubt.
“This is just a massive problem,” Scott Sanders said. “How do you address something like this?”
With a huge number of cases, “this is really Habeas Corpus litigation potentially,” he said.
But the problem is that this is a criminal justice system that has great difficulty dealing with past misconduct. “So yes, it does call them into question, but it’s difficult enough to address it at the moment.”
The system is overwhelmed, however, and there are not the resources to help thousands of defendants and convicted individuals to fight and challenge past misconduct.
“This is what they bank on,” Scott Sanders said. “People will (probably) never find out. If they find out, there isn’t a mechanism in place to really address it.”
One of the key debates is whether the district attorney’s office knew about these problems at the time.
Todd Spitzer was elected in the fall of 2018. He has responded by telling the Orange County Register that his office had only learned about the audit recently and that they are reviewing individuals cases.
In a letter to the sheriff on November 21, Mr. Spitzer writes, “I have concerns that my office have filed and prosecuted criminal charges against individuals based on OCSD reports that inaccurately stated evidence had been booked.
“My goal is to identify any and all cases handled by OCDA where a defendant’s due process rights may have been negatively impacted by having evidence collected but not booked,” he wrote.
But Scott Sanders is skeptical of the claims that Spitzer’s office didn’t know.
“He’s in many respects personalizing it,” he said. “He didn’t know. He’s saying his office didn’t know.”
He said we are at an early stage in finding this out. He points out that an early stage 15 deputies were singled out for investigation, but the DA claims he didn’t know there was an audit.
“They prosecuted none of them,” Scott Sanders pointed out. “I have questions about where they used their Brady list fully on these deputies.”
Moreover, they are leaving it to the sheriff’s department to determine what cases were impacted.
“Boy, I really don’t want my sheriff’s department making that call about what cases were impacted,” he added. “That is really frightening. They should not have power.”
He noted that in the midst of all the concealment, there needs to be DA oversight over that and he calls the lack of oversight here, “really troubling.”
“The jury’s very much out as to what the DA’s roll is,” he said, noting that by simply acknowledging the 57 cases, he’s already downplaying the severity of the problem. “That doesn’t seem to me to be an eagerness to get the full expanse of the problems.
The question many will ask is how deep this goes and whether these problems exist elsewhere.
He said, “It’s just apparent it’s everywhere. Lack of accountability.”
He said, it’s not like it’s in every agency. He said he’s not discounting that Orange County is worse than most. But he said, “It would be a miracle if this was not happening all over the place.”
And this is just the tip of the iceberg, probably.
He pointed out that, like with the informant scandal, the audit might be two years, but the conduct has probably been going on far longer.
“It’s large, it’s sprawling like the informant scandal, and on a moment to moment level it has potentially even a greater impact on defendants (than the informant scandal),” he said.
He said, “If the sheriff’s department has to call it a systemic problem, it’s a super-systemic problem.”
He said, “It’s fits with what we see here, there’s not a respect for law and a respect for defendants that has been made part of that culture. It’s pretty awful.”
“What else is there?” he asks.
—David M. Greenwald reporting