SANTA ANA, Calif. – The Orange County District Attorney’s Office issued the following statement correcting false allegations by the Orange County Public Defender’s Office that the District Attorney has failed to oversee the Sheriff’s Department in connection with Sheriff evidence booking issues. The Sheriff’s Department has been fully cooperative with the District Attorney’s demands. The Public Defender is either failing to understand the process adopted by the District Attorney or is intentionally ignoring the facts.
These are the facts:
After being made aware of significant deficiencies in the Sheriff’s Department’s first two audits in November 2019, District Attorney Spitzer demanded that the Sheriff’s Department expand the audit to the three years in order to ensure defendants’ due process rights are protected.
District Attorney Spitzer assigned a team of District Attorney Investigators to oversee the hand search case-by-case review of more than 22,000 Sheriff’s Department cases which resulted in a conviction, in which evidence was booked more than 31 days late, and there was no justifiable reason why the evidence was booked late. The hand search of these cases was done to identify discrepancies between what was written in police reports by Sheriff’s personnel and the evidence booked.
Of the more than 22,000 hand searched cases, the District Attorney’s Office has proactively dismissed 65 cases after the expanded audit revealed the evidence had not been properly booked – and those dismissals were made on the District Attorney’s own motion.
The percentage of cases that had some or all charges dismissed in the interest of justice as a result of evidence that was not properly booked is 0.27%.
While even one case with material evidence booking deficiencies is one too many, the Orange County District Attorney’s comprehensive review of the matter has determined that only a relatively small number of cases – approximately one-quarter of one percent of all the cases reviewed – were actually negatively impacted by OCSD evidence booking issues.
Out of an abundance of caution, the District Attorney’s Office provide notice to the defense on all potentially impacted cases. More than 3,600 letters were sent to defense attorneys and defendants by the District Attorney’s Office notifying them of potential issues with evidence issues. To date, just a handful of requests were made by defense attorneys to dismiss charges, and of those requests, a thorough review of the facts revealed that only one case merited dismissal.
Two deputies have been convicted and a third has been indicted by an Orange County Grand Jury for crimes related to evidence booking issues.
Sixteen deputies have been added to the District Attorney’s Brady Notification System in connection with booking evidence late or not at all as a result of criminal referrals by the Sheriff’s Department. The Orange County District Attorney’s Brady process goes far beyond what the law requires. The decision to add a law enforcement officers to the Brady Notification System rests solely with the Orange County District Attorney’s Office.
As a direct result of the District Attorney demanding the audit be expanded, an additional 15 deputies have or will be referred to the District Attorney’s Office for Brady review and potential criminal filings and the OCDA Conviction Integrity Unit has also referred an additional nine deputies for Brady review in connection with evidence booking.
The Orange County District Attorney’s Office was made aware in January 2020 that Orange County Sheriff’s Deputy Michael Devitt was the subject of a Sheriff’s Department internal investigation. To date, the Orange County District Attorney’s Office has not received a criminal referral regarding Devitt.
The District Attorney’s Office initiated a Brady review of the deputy immediately upon learning of the open internal investigation on Devitt, but that review cannot be completed until the Sheriff’s Department finishes its internal criminal review and provides those findings to us.
Since that time we have made proper notification to the defense that there may be evidence booking issues related to Devitt as well as other deputies involved in People v. Sayem and provided discovery as required by law. Out of an abundance of caution, we have provided that same notification when any of the 602 deputies mentioned in the Sheriff’s Department audit are named as a potential witness in a case.
The inclusion of a deputy’s name in the Sheriff’s Department evidence booking audit does not equate to criminal behavior or even that they booked evidence outside of Sheriff’s Department policy. In fact, the hand search of the more than 22,000 cases revealed that the initial Sheriff’s audit which was based on a computer search of records, misinterpreted many legitimate situations to infer evidence was booked late when in fact it was not. For example, surveillance video was not available for several days or weeks after the date of the crime. The system recorded the days between the date of the crime and the date the video was received and booked, making it appear it was booked late when in fact it was not available for legitimate reasons.
In addition to dismissing charges and prosecuting deputies for committing crimes related to evidence booking, the District Attorney’s Office on its own motion is also removing any DNA samples from its database in connection with any cases in which DNA was submitted as a result of a conviction based on evidence that was not properly booked.
The Orange County District Attorney’s Office will always continue to review cases and provide notice to the defense when appropriate to ensure that defendants’ due process rights are protected.