New Filing Reveals More Allegations of Impropriety in OC Evidence Scandal
In December, the Vanguard reported two audits in Orange County, which showed more than a thousand sheriff’s deputies holding onto evidence for days and sometimes weeks or longer before booking it, with a separate audit finding that potentially thousands of items of evidence were missing.
Now Public Defender Scott Sanders has filed a motion for discovery which demonstrates that at least two of the deputies who were referred to prosecutors for criminal charges for issues about booking evidence were later promoted after prosecutors declined to charge them.
The filing specifies 15 deputies that the Orange County Sheriff’s Department referred to the DA for criminal investigation “based upon their repeated and serious mishandling of evidence.” Mr. Sanders notes in his motion that “the deputies referred to for criminal prosecution wrote reports in which they collectively described having seized well in excess of 100 items of evidence that were never booked – or, alternatively, lied about having seized items in the first place.”
In his motion for discovery, Scott Sander writes: “After the OCDA rejected criminal prosecution of then-Deputy Tobin Anderson, he was given an administrative sanction of 40 hours without pay.”
A few months after the decision was made not to prosecute Deputy Anderson, the Orange County Sheriff’s Department promoted him to sergeant.
A similar thing occurred with Sgt. Philip Avalos, who testified during hearings in the case People v. Tanber. Questioning there “revealed that in addition to engaging in allegedly improper communications with the female informant, Sergeant Avalos’ improper handling of evidence resulted in him being included among the 15 deputies referred to the OCDA for potential criminal prosecution.”
Litigation in Tanber indicates that there were at least four cases in which Sgt. Avalos “claimed to have collected items of evidence that were never booked.”
While Avalos held the rank of deputy at the time of his misconduct, he now holds the rank of sergeant.
Mr. Sanders writes that “misconduct is not the slightest impediment to advancement. Avalos’ punishment was a loss of a mere week and a half of pay – and he would quickly thereafter be promoted to sergeant, as revealed in testimony.”
In the testimony it was indicated that, in addition to the 60-hour leave, he was not allowed to promote for two months as the result of the discipline.
According to media sources, the sheriff’s office released a statement on Thursday:
“Cases sent to the District Attorney’s Office for review are based on the potential for criminal culpability. It is during the administrative process that the employees’ conduct related to potential violations of department policy is examined. During that process, the facts of the case are weighed to determine the egregiousness of the violation and discipline is applied appropriately. Every one of these cases held our personnel accountable and resulted in some form of discipline, including and up to termination. To date, four deputies have been terminated.
“Discipline is not intended to be punitive, it is intended to be corrective. It does not exclude an employee from seeking future promotional opportunities and participating in the competitive county promotional process.”
In addition, Scott Sanders has questioned why the deputies accused of failing to book evidence properly have not been added to the district attorney’s Brady violation list.
In his motion, Mr. Sanders writes that he was forced to identify a number of the deputies through “confidential sources” due to “the unwillingness of the OCDA to reliably place all law enforcement personnel who engage in misconduct in the department’s Brady notification system and because of the agency’s failure to disclose misconduct to potentially affected defendants as soon as it is discovered.”
He added, “It has become increasingly clear… that even when misconduct is clearly identified and understood, law enforcement personnel are either not added to the notification system or their addition is preceded by extraordinary delays causing enormous and unfair detriment to criminal defendants.”
Mr. Sanders noted that, based on his view, “none of the 15 deputies referred for criminal investigation had been added to the OCDA’s Brady notification system as of August 2, 2019, even though the referrals for criminal investigation, based upon information and belief, occurred approximately a year or more before that date.”
In response, the DA’s office issued a statement noting that weeks after taking office, “District Attorney Todd Spitzer added several Sheriff’s deputies to the District Attorney’s Brady Notification System where they legally belong. This included deputies who were accused of failing to properly book evidence according to Sheriff’s Department policy.”
However, he added that it was “not until November 2019 that the Orange County District Attorney’s Office was made aware that a Sheriff’s Department audit had revealed a systemic problem with Sheriff’s personnel failing to properly book evidence.”
In his discovery request, Mr. Sanders is seeking, among other things, all communications and correspondence between DA Todd Spitzer and Sheriff Don Barnes between January 10, 2019, and the present on the matter of booking of evidence.
Scott Sanders, responding to the DA’s statement, told the Vanguard, “If the entire OCDA was unaware of the audits—a point we have no reason to accept simply because Mr. Spitzer makes that claim—that wouldn’t justify OCDA’s failure to meet its Brady obligations related to disclosure on each of the cases affected by the misconduct for the 15 deputies who were referred for possible prosecution.”
Moreover, he added that “the OCDA was responsible for informing all defendants in cases where these deputies were witnesses about their egregious mishandling of evidence. That certainly did not happen.”
He said, “The OCDA now claims that in early 2019, two of the fifteen deputies were placed on the Brady list. That doesn’t match with what I received from an August 2019 public records request. If the OCDA would just tell us which of the two deputies were added then, we can analyze the claim. We’re waiting.”
—David M. Greenwald reporting