By David M. Greenwald
Orange County Assistant Public Defender Scott Sanders on Thursday filed a motion to compel discovery attempting to gain reports and evidence documenting sheriff’s personnel who have falsely claimed that they have booked evidence in previous cases as identified in the Evidence Scandal.
Sanders motion is responding to a January 2021 report from the DA’s office on the booking issues surrounding the Orange County Sheriff’s Department.
In that report, the DA’s office claims that only in November 2019, did they become “aware of the extent of evidence booking issues within the Orange County Sheriff’s Department” as well as the existence of internal audits.
“DA 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,” the report claims.
The DA’s report argues: “When District Attorney 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.”
Sanders believes otherwise and argues that the DA’s office intentionally avoided looking at cases that would necessitate putting more Deputies on the Brady Notification list.
He claims that the lack of prior knowledge by the DA was not true and in support of their request for discovery, “Defendant will describe what has been learned about the evidence booking audits, focusing on the prosecution team’s role in the audits and its response to meeting its disclosure obligations related to law enforcement personnel, pursuant to the holding in Brady.”
Instead, Sanders argues, “the OCDA Report is relentlessly self-protective and undeservedly self-congratulatory, as it melds fact with fiction.” Most “disturbingly” they conclude at “every step in the process” the OCDA was the “first, best, and most effective shield against injustice…”
Sanders responds that this “is false and misleading,” and provides “numerous” examples.
Among his charges includes that the OSCD, “excluded investigators from its audits” in order to “limit damage” and then “corroborated its illegitimate objective through a cover-up that planted false information about the audits in the interviews of deputies who were under criminal investigation.”
He charges that the audit team would “cerate a scripted line” that was planted in at least seven interviews “to make it appear that the investigators were included in the audit.”
Sanders continues: “this lie lacked any legitimate objective, every member of the OCSD who had a role in devising the plan to deceive, in creating the script, in communicating it to deputies or in covering up the effort to mislead, necessarily engaged in dishonesty and acts of moral turpitude that require their placement in the Brady Notification System.”
Spitzer originally claimed that he was unaware of the audits. In responding to the scandal, he wrote to Sheriff Barnes: “it is entirely inappropriate for your staff to publicly assert that my office had knowledge of the existence of a department-wide audit when we clearly did not.”
Sanders argues, “Mr. Spitzer’s statements were either made as a result of an individual decision to deceive or because he had been misled by the OCDA’s Special Prosecution Unit.”
Clearly, he argues, “the OCDA and its Special Prosecutions Unit had no interest in prosecuting members of the OCSD, nor learning more about an office-wide audit that had led to what was certainly a never- before-seen spike in criminal referrals for the same conduct.”
The OCDA in addition, Sanders claims, overstated the number of cases it reviewed by at least 17,083.
According to the filing, the report “falsely claimed (twice) that the OCDA reviewed 41,142 cases in total, exaggerating the number by at least 17,083 cases to include all cases from the First Audit.” Sanders argues, “The 41,142 figure contradicts its claim in another section of the report, which states that “a total of 22,289 (DRs) were reviewed by a joint team of OCSD and DA investigators.””
Scott Sanders also writes that less than 40 deputes have even been referred for inclusion in the Brady Notification System – a system intended to ensure evidence of dishonesty, moral turpitude and gross negligence is turned over when officers are witnesses in cases.
Even the Third Audit, “led to a mere 23 deputies being referred for possible addition to the Brady Notification System, including 0 investigators—and 39 in total when the 16 of the 17 originally cleared deputies are included—would be at odds with the review of more than 41,142 reports, if somehow the review had been legitimate.”
“Even if the OCDA now were to admit it exaggerated the numbers, it still does not explain the lack of additions to the Brady Notification System,” he writes.
Sanders wants an explanation as to “how it is possible that those 3,100 reports with “irregularities” failed to demonstrate that that hundreds if not a thousand plus OCSD personnel lied in their reports about the booking of evidence—rather than a few dozen.”
Instead, he argues that the OCSD and later the OCDA intentionally avoided reviewing thousands of reports that would require additional officer-specific Brady Disclosures.
He writes, “The OCSD’s Secondary Audit examined a sample of 450 Remedy Records related to 71,585 investigations where no evidence was booked and concluded (with a 95 percent confidence level after comparing what was written in the related reports) that the agency would expect to find that in 13 percent of the 71,585 investigations, deputies’ reports described evidence being seized that was actually never booked.”
Incredibly he writes, the OCDA in the Third Audit, “stayed largely on the same path as the OCSD and only reviewed those investigations from this quantity that culminated in a conviction—a fraction of the total number—improperly blocking the agency from identifying likely thousands of reports that would have supported placing additional OCSD personnel in the Brady Notification System and substantially increasing the number of reports that would need to be disclosed when officers became witnesses.”
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