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O.C. district attorney has neglected to add untrustworthy deputies to oversight list, court motion says

O.C. Dist. Atty. Todd Spitzer
Orange County Dist. Atty. Todd Spitzer has been accused by a defense attorney of not honoring a Brady Notification list that keeps track of untrustworthy law enforcement personnel.
(Allen J. Schaben / Los Angeles Times)

Orange County Dist. Atty. Todd Spitzer has repeatedly failed to add sheriff’s deputies and investigators who lied in police reports to a list that keeps track of law enforcement officers with histories of misconduct, according to a legal motion filed by Assistant Public Defender Scott Sanders.

Sanders contends in the motion filed Thursday that the district attorney’s office hasn’t honored its Brady notification list, which is a record that district attorney’s offices are supposed to update with the names of law enforcement personnel who have records of dishonesty, criminality and other issues that could affect their credibility as a witness.

The U.S. Supreme Court ruling on Brady vs. Maryland requires that prosecutors notify defense attorneys when one of the officers on the list is a witness in a case.

Sanders’ motion delves into an evidence mishandling scandal, where Orange County sheriff’s deputies were found to have booked evidence late or failed to book evidence at all but subsequently lied about it in reports. Sanders claims that Spitzer hasn’t added the names of law enforcement personnel involved in the scandal.

“In this very moment, we can finally see clearly the extent to which the Orange County D.A. has been operating a completely fraudulent system for disclosing evidence about officers who have lied,” Sanders said in an email.

“They will scramble now and probably quickly add hundreds of people to their Brady List — but only because they got caught. It’s been a utter scam committed in violation of their oath as prosecutors — the type of fraud that leads juries to believe dishonest cops and the innocent to being wrongfully convicted. It’s beyond shameful.”

Sanders has been a vocal critic of Spitzer’s and has been revealing details about the scandal in court filings throughout the year. Spitzer denies any wrongdoing.

“I’m putting Orange County on notice that Scott Sanders’ primary focus of filing these ridiculous, baseless motions is not the defense of his client,” Spitzer said in an emailed statement. “It is solely to bring the chaos of the Los Angeles criminal justice system here to Orange County. Our job is to ensure that never happens.”

Reactions are mixed to District Atty. Todd Spitzer’s Feb. 10 announcement of guiding principles to address systemic racism in the criminal justice system.

Through the motion, Sanders is seeking reports and other evidence that the sheriff’s deputies involved in the case of Sanders’ client, Victor Soto, falsely claimed to have booked evidence in past cases, lied about when they booked evidence or violated sheriff’s policy dictating when evidence is required to be booked.

Soto has been charged with a host of crimes largely related to possession of weapons and various gang-related charges. The motion claims there is false information in a search warrant that was used to access Soto’s phone, vehicle, house and his brother’s home.

The warrant was filled out by Deputy Michael Garcia, who was among the first 17 deputies referred for criminal prosecution for evidence mishandling and filing false reports. Garcia is on the county’s Brady list.

Garcia was referred for criminal prosecution in August 2018 for false reports and failure to book evidence, but he was initially cleared by the district attorney’s office, the motion says. The district attorney’s office then waited two years after the criminal referral to add him to the Brady list, disclosing his misconduct in September 2020, the motion says.

“But what is worse [is] they don’t share Brady evidence about his misconduct for two years (well after the scandal broke),” Sanders wrote in an email. “So when Garcia signed the search warrant and the D.A. approves it and gives it to the judge, that judge authorizes the warrant he has absolutely no idea about Garcia’s history of lying.”

Another officer involved with Soto’s case is Deputy Michael Devitt, who was caught on video in 2018 beating Mohamed Sayem, a Black man. The sheriff’s department said he was placed on administrative leave in August for an unrelated investigation.

Sanders is representing Sayem.

The evidence mishandling scandal was brought to light in 2019.

The sheriff’s department had already conducted two audits of its deputies by that time. According to the motion, the department found that between 2016 and 2018, 414 deputies had booked evidence 31 days or more after it was seized and 1,135 deputies had booked evidence six to 10 days after it was seized. Department policy requires evidence to be booked at the end of a shift.

In his motion, Sanders said these numbers reveal that the district attorney’s Brady list should have more deputies and investigators on it. The list currently has 16 deputies, and another 23 are being considered for addition to the list. The motion says that no investigators have been added to the list.

“This reasonably alerted the agency that there were massive Brady disclosure responsibilities to past and current defendants and that potentially 1,000 or more deputies needed to be added to the OCDA’s Brady Notification System because of the enormous likelihood that deputies were, on a systematic level, falsely stating in their reports that they booked evidence by the date of their report,” the motion says.

Spitzer has held that the sheriff’s department hid the audits from him. In response, the district attorney’s office conducted a third review of the evidence mishandling, which was released in a report in January.

The district attorney’s audit was a joint effort with sheriff’s department and district attorney’s investigators combing through 22,289 cases. Spitzer ended up dropping or reducing charges in 67 cases due to mishandled evidence.

Assistant Public Defender Scott Sanders has been uncovering details about an evidence mishandling scandal in court filings.
(Allen J. Schaben / Los Angeles Times)

“The D.A.’s office will continue to review cases and provide notice to the defense when appropriate to ensure that defendants’ due process rights are protected, but because of remedial action [the Sheriff’s Department] has taken to address evidence booking deficiencies, there should be few, if any, negatively impacted cases in the future,” the report states.

In his motion, Sanders said the district attorney’s report is “self-protective,” “self-congratulatory” and bends the truth.

He said that the district attorney’s office claimed to have reviewed about 17,000 more cases than it did during the audit.

“As will be seen, the extended concealment of Brady evidence related to Deputy Garcia is just one example why the portrait presented in the OCDA Report of an agency that both demands accountability from law enforcement and reliably makes officer-specific Brady disclosures, is not rooted in fact,” the motion says.

Sheriff’s spokeswoman Carrie Braun said Thursday that the department has not yet reviewed the motion. She provided a statement on the evidence mishandling controversy.

“Our department alone identified this issue, conducted two internal audits, and held accountable individuals who violated department policy, including submission to the district attorney for their consideration to prosecute the individuals involved,” Braun said. “This is an issue of policy that we identified, we addressed, affected parties were notified, and we have remedied with safeguards to ensure this does not happen in the future.”

In a separate motion Sanders filed on Friday, he listed three more deputies who he said lied in reports and were not added to the Brady list — Deputy Jonathan Larson, Deputy David Larson and Investigator Theodore Wilder.

Sanders is seeking more files on their potential misconduct.

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