March 15, 2020
Once a law enforcement officer collects evidence of a crime, he or she faces a deadline to get the material back to the station to have it recorded, or "booked," and secured. The reason is simple: The longer a weapon, drugs, video or other evidence sits in a patrol car or on a desk, the greater the chance that it will be contaminated or deemed inadmissable for violating rules that protect its integrity. It also has to be available to prosecutors, so they can determine the strength of the case and make a decision on what charges to file.
The deadline at most agencies — including the Orange County Sheriff's Department — is the end of the officer's shift. So when it became clear late last year that 70% of Orange County's deputies hadn't booked evidence on time, it was a big deal.
The average delay was more than three days. But 27% of deputies waited a month or longer. And some never booked their evidence at all, even though they told their superiors that they had.
These problems were uncovered as part of an internal Sheriff's Department investigation. Some deputies were fired, some were disciplined, and the problems presumably were corrected. So all's well that ends well? Hardly.
It turns out that the department had kept the findings of the investigation secret for two years. Sheriff Don Barnes finally told the Board of Supervisors in November when it became clear that the Orange County Register was about to report the story. Failure to notify defendants of potential problems with evidence against them violates their constitutional right to a fair trial.
The revelations could affect thousands of criminal cases. Sloppy evidence procedures — and the failure to tell defense counsel about them — could cause convictions to be thrown out.
Dist. Atty. Todd Spitzer said Barnes never told him there was a problem with evidence in cases he was prosecuting. Barnes said Spitzer should have been aware of the issue because the D.A.'s office was notified when the internal audit was launched in 2018 (Spitzer defeated Dist. Atty. Tony Rackauckas late that year; he and Barnes both took office in early 2019). Now Spitzer has reopened criminal investigations into at least 17 deputies over mishandling of evidence.
In February, it was revealed in court that a deputy who falsified reports about evidence booking was still in the field, still collecting evidence. Last week, The Times reported that another deputy who allegedly mishandled evidence was promoted to sergeant just months after the department referred his case to the D.A. for possible criminal prosecution.
One might argue that the dispute among the sheriff, the district attorney and the assistant public defender shows that the system is working — that the various checks and balances created by two independently elected law enforcement officials, along with vigorous defense counsel, plus continuing media scrutiny — have ferreted out and will resolve any problems. But that still leaves questions about the validity of numerous prosecutions and, presumably, convictions.
And this is Orange County, where the Sheriff's Department's improper use of jailhouse informants called into question more than 100 convictions. The jails, meanwhile, have been criticized over inhumane treatment of inmates and lax security.
The problems led Barnes' predecessor, Sandra Hutchens, not to seek reelection. Her predecessor, Michael S. Carona, was convicted of witness tampering and served four years in federal prison.
So it's hard to argue that the various checks and balances are working. There's a missing piece: civilian oversight of the Sheriff's Department, as Los Angeles and several other counties have instituted.
It's not perfect, and in L.A. it's still in an early stage. But voters there invigorated it earlier this month with their landslide passage of Measure R, which gives the sheriff's Civilian Oversight Commission power to subpoena documents and compel testimony. Together with an inspector general who monitors internal sheriff's investigations, the commission helps to ensure public scrutiny and prevent the sheriff from being the only arbiter of department actions.
A bill (Assembly Bill 1185) to authorize all counties to create civilian oversight of sheriffs failed to get out of the Legislature last year. But the measure is still alive. It just might provide Orange County exactly what it needs. The county may be able to act without the legislation, as L.A. did, but if passed the bill would erase any doubts — and show the county a way forward.
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