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California

‘Thousands of cases’ tainted by evidence mishandling by California deputies, attorney says

Disastrous.

That’s what one attorney is calling the rapidly growing evidence scandal that has swept the Orange County Sheriff’s Department and that threatens to alter the criminal justice landscape in one of California’s largest counties.

The ramifications are real: Orange County’s guilty could go free; the innocent wrongly jailed on convictions built on tainted evidence – or evidence that was never filed at all.

Thousands of criminal cases in this Southern California megalopolis of more than 3.2 million people are now potentially tainted after a week of back-to-back bombshells: internal reports revealing that hundreds of sheriff’s deputies sat on evidence and dozens of others lied about filing it.

Now Orange County Sheriff’s officials are blasting assertions by the county’s assistant public defender, Scott Sanders, that deputies failed to book evidence in as many as 9,000 cases and are fielding terse demands from the county’s district attorney for more information in the wake of the audits that showed two years of nearly department-wide evidence mishandling.

The Orange County Sheriff’s Department in 2018 undertook a pair of evidence audits. The first one looked at almost 99,000 police reports over a two-year period. It showed evidence in 30 percent of the reports was mishandled in some way, and the department did not retain evidence in nearly 72,000 cases.

The Sacramento Bee on Wednesday obtained a copy of the department’s secondary audit — handed to sheriff’s brass in February but not disclosed to district attorney’s officials until last week.

The internal audit randomly sampled 450 reports out of the nearly 72,000 cases flagged in the first report. Of those, deputies filed 121 reports stating they collected and booked evidence.

The auditor’s findings: no evidence was booked in nearly half of the sampled reports — 57 — in which deputies said they had, or about 13 percent of the 450 cases reviewed, according to the audit.

Sanders’ projection that 9,000 cases were mishandled over two years stems from the numbers in the second audit. The Sheriff’s Department argues Sanders is exaggerating.

“To take that (data) and extrapolate that out is incredibly disingenuous,” Carrie Braun, Orange County Sheriff’s spokeswoman, said Friday.

Sanders last week stood by his office’s projections of potentially mishandled cases.

“The department should forever be prohibited from using the word ‘disingenuous.’ Their exact figures are the figures to use. We’re looking at 450 cases out of 72,000. We’re going to stand by their numbers: it’s more likely to be 9,000 than 57,” Sanders said on Nov. 26. “We do the calibrations and they call us ‘disingenuous.’ That’s absurd.”

Sanders, who has loudly criticized sheriff’s officials for failing to disclose the internal reports with their implications for criminal defendants, calls the developments “disastrous.”

“We’ve been ripped off on thousands of cases. We had no idea,” Sanders said. “This is the sixth-largest county in the nation. There’s an enormous amount of cases they touch here.”

But a week after the uncovering of a sweeping audit that exposed evidence mishandling rampant throughout one of the nation’s largest sheriff’s offices, the disclosure of the February audit and the scathing letter District Attorney Todd Spitzer fired off demanding answers, Sheriff Don Barnes has been largely silent.

That changed little on Wednesday.

In a four-paragraph statement, Barnes said his office’s “corrective measures” have “addressed any continuing evidence booking issues” and said lead staff from both offices should work together to identify reports that resulted in criminal filings. Barnes said sheriff’s officials would contact the DA’s office to set dates. Braun, the sheriff’s spokeswoman, said it was not clear when meetings to sort out the cases would occur.

Wednesday’s memo came after a strongly-worded follow-up by Spitzer’s office Monday suggesting Barnes was slow-walking the audits and demands by Spitzer’s office for the names of defendants or the cases where Barnes’ deputies failed to book — or lied about — the evidence collected.

“As of yet, we still do not have the audit nor have we received a response to the (Nov. 21) letter we sent to the Sheriff’s Department requesting additional information about cases where evidence was not properly booked,” Orange County Chief Assistant District Attorney Shawn Nelson said in a Monday statement.

“This is not a dispute between departments. This is a sheriff’s issue,” Nelson’s statement began. “Now our office is fully apprised of the scope, we know what our duty is and it is unquestionable,” he said, calling the sheriff’s department’s failure to turn over or disclose the audits “mystifying.”

The misconduct behind the scandal poses a genuine problem for Spitzer’s office, said Daniel Feldman, a criminal justice professor teaching oversight and ethics at John Jay College of Criminal Justice in New York, from expensive court challenges to navigating the tense relationship with leaders of a department he said appears to have a “substantial subculture of bad ethics.”

“The defense relied on these statements that were not true,” he said. “Under these circumstances, courts would reverse convictions. Some courts would have to see whether the evidence was material, but others might say it’s so outrageous, we have to deter others from doing it again.

“Either way,” Feldman concluded, “anybody convicted by this would have a heck of a civil suit.”

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