OIR Report Is Subtle but Lifts the Veil in Orange County
By David M. Greenwald
Santa Ana, CA – It is perhaps easy to miss the importance of the OIR (Office of Indepedent Review) report that came out last week that calls out the conduct and especially the practices of the Orange County Sheriff’s Department.
It took me a few go-rounds with the OIR report in Orange County before I finally got it.
To really understand the importance, one must consider the totality of the circumstances. First, for years, we have learned, Orange County sheriffs running the jail would orchestrate a system whereby they planted informants near notorious accused murderers in hopes of eliciting inculpatory admissions—probably on a number of occasions when they failed to do so, they simply made it up in exchange for leniency.
That is the core of the informant scandal.
After that we have learned that sheriff’s deputies have mishandled evidence, losing key chains of custody and in some cases outright misplacing and losing evidence.
While both of these scandals originated with the Orange County Sheriff’s Department, both required the help of the DA’s office to keep the lid on it and attempt to rescue the case.
This was bad enough to a few weeks ago compel prosecutors to seek a new trial.
Something to bear in mind—DA Todd Spitzer for months has been attacking challenger Pete Hardin as being a clone of Gascón.
But the more I look at things, I think Spitzer ought to worry more about being seen as a clone of former DA Tony Rackaukas, whom Spitzer defeated in 2018 with the help of some of the very people he is now attacking.
The OIR report is subtle and needs to be unpacked a bit. The most troubling finding was a bit buried.
The OIR found that there were supervisory reviews “that determined a use of force was unauthorized or out-of-policy, but the supervisors did not refer them to Internal Affairs for investigation.”
In particular, the report notes that such handling is problematic because “the S.A.F.E. Division categorizes all force incidents as ‘in policy’ if they are not referred to Internal Affairs.
“S.A.F.E. treats all force-related issues not referred to Internal Affairs as within policy, skewing its statistics and calling into question its conclusions,” they write. “As a result, S.A.F.E. wrongly concluded that 98.1% of all use of force incidents were within Department policy, because it failed to include incidents in which supervisors found an out-of-policy use of force but which were not referred to Internal Affairs.”
This is important for transparency purposes, but there is another much more important layer here.
We see this come up in our coverage from the spring in the case of Mohamed Sayem, who was found by police slouched and asleep at the wheel of a vehicle, keys in the ignition.
A confrontation ensued and Sayem was “beaten to the ground and then terrorized,” Public Defender Scott Sanders alleges in his motion to compel discovery.
The problem that Sanders identified is the same problem that the OIR found.
Namely that documents that should have been turned over to the defense weren’t because they were improperly concealed. They were improperly concealed because, unless there is a sustained complaint on a use of force case, the material is not deemed relevant.
And the problem, according to Sanders, “would have likely led the OCSD to automatically exclude as many as 98 percent of the eligible Supervisor Use of Force Reports from the court’s in camera consideration.”
Why? Because 98 percent of those reports are deemed unsustained—we now know falsely so.
Sanders argued that because we can’t trust the process of evaluation, they all have to be turned over. The judge disagreed and denied his motion, the DA’s office fought it as well, but Sanders is right—how can you use a standard for disclosure when you know the determination of the use of force itself is fatally, and now provably, flawed?
To me this is a Brady issue now by default. Use of force problems are getting administratively buried in the system, exculpatory evidence that should be disclosed to the defense is being withheld and the DA is helping the OCSD not have to turn them over and expose the problems in the department.
Instead of cleaning house as Spitzer promised to in 2018 when he defeated Rackaukas, he has become part of the vanguard defending the sheriff’s department and protecting his own office’s prosecution.
We then see Spitzer attack Hardin in tweets where he says: “Criminal first candidates are targeting the OC DA’s office just like they did in LA. Pete Hardin supports ending cash bail and eliminating sentencing enhancements for violent criminals. Vote NO on turing (sic) OC into a pro-criminal paradice (sic).”
But maybe Spitzer should worry less about Hardin and LA County, and more about getting his own house in order. Because from what I have seen—and it still seems like we are scratching the surface here—what is happening in OC is far worse than anything we have seen in most other jurisdictions in the last 20 years.
We are really at the point where we should be talking about criminal misconduct and requiring the AG’s office to come in and do a full investigation. Some of this has continued under Spitzer’s watch. The OIR report just gives us a little taste of that.