OC Defense Attorney Seeks Recusal of OCDA from Drug Case

SANTA ANA (CNS) - A defense attorney said today he wants the Orange County District Attorney's Office booted from a drug case because prosecutors have established a roadblock to their obligations to turn over evidence to the defense.

The motion to recuse the District Attorney's Office, which was filed Monday, stems from the evidence booking scandal that has roiled the Sheriff's Department and the District Attorney's Office, which crafted a plea deal for two deputies who were accused of the most lapses in booking evidence.

Assistant Public Defender Scott Sanders filed the recusal motion on behalf of Sherri Jan Norris and Robert Glenn Barr in a possession of narcotics for sale case.

Sanders, who represented mass killer Scott Dekraai, cites the recusal of the District Attorney's Office in that case stemming from the confidential informant scandal in the case against Norris and Barr.

Sanders alleged that Jonathan Larson, one of the sheriff's investigators involved in the case against Norris and Barr was also involved in the special handling unit that came under criticism in the Dekraai case.

Sanders claimed prosecutors will no longer send over information to defense attorneys that has been uncovered by prosecutors in an audit of the failure to book evidence 2016 through 2018. Prosecutors are required to turn over exculpatory evidence to defense attorneys, which is known as a Brady obligation.

Instead, prosecutors are saying the information from the evidence booking scandal audits falls under a separate legal rule, which requires what is known as a Pitchess motion. That requires more legal hurdles for defense attorneys to prove the information is relevant to their case.

“The OCDA's Brady responsibilities cannot be delegated, but that is precisely what Mr. (Todd) Spitzer has done,'' Sanders wrote in his brief, referring to the district attorney.

Classifying the evidence now as sheriff's personnel records is “appalling,'' Sanders wrote.

“The OCDA and the OCSD aspire to prevent defendants from acquiring favorable evidence, knowing that the peace officer discovery process provides far more limited disclosures than must be made under Brady,'' Sanders said.

Sanders also accused Spitzer of hypocrisy for the move.

“Spitzer and his prosecutors must also be hoping that defendants have forgotten his earlier claim that the (sheriff's department) his the two-year audit from prosecutors, supposedly creating the moral impetus for the OCDA to conduct its own re-review of three years of cases outside -- and yet now he and his office have the audacity to suggest defendants will see justice in a disclosure process where neither defendants nor the OCDA participates, and which relies completely on a trust in the (sheriff's department) that Spitzer so recently claimed had been violated on same subject matter,'' Sanders wrote.

Sanders was referring to the failure to charge any of the deputies who failed to book evidence properly. After media reports about the scandal, unearthed in Sanders' litigation in other cases, Spitzer said he was blindsided by the sheriff's department and ordered his own review. Sheriff Don Barnes said his deputies were forthcoming about the issues when they were brought to light and referred criminal cases to prosecutors that were rejected.

“Finally, based upon information and belief from a reliable source, the (sheriff's department) is now racing quickly to open numerous internal investigations -- more than two years after the first audits were conducted -- in order to somehow justify the joint plan of the (sheriff's department) and the OCDA'' to make any evidence part of a Pitchess motion instead of the Brady obligation, Sanders wrote.

“We are now witnessing firsthand another shameful moment in the OCDA's inglorious history of breaking down legal barriers to protect members of the (sheriff's department) at the expense of the accused,'' Sanders wrote.

Sanders also argued that Spitzer -- who has long touted his role in sponsoring the victim's rights legislation, Marsy's Law -- denied the Marsy's Law rights of some of his clients to make a victim impact statement this month when two deputies involved in the booking scandal accepted a plea deal.

Former sheriff's deputies Joseph Anthony Atkinson Jr., 39, and Bryce Richmond Simpson, 31, pleaded guilty to a misdemeanor count of willful omission to perform their official duty and were sentenced to a year of informal probation.

Sanders said the men agreed to a rare waiver to accept a misdemeanor charge despite the statute of limitations expiring in exchange for prosecutors backing off felony charges.

“The people they victimized still have crimes on their record and served time in custody and were apparently never told about the resolutions reserved for those in uniform,'' Sanders told City News Service. “They may have liked to talk about how they did 30 days in custody and these deputies did zero days for nearly 100 felony crimes.''

Kimberly Edds, a spokeswoman for the District Attorney's Office, said, “Of the 17 deputies referred for criminal prosecution by the Orange County Sheriff's Department related to the evidence booking issue, 16 deputies have been added to the District Attorney's Brady Notification System following a comprehensive review process.''

That list must be turned over to defense attorneys whenever one of those deputies are involved in a case they are handling.

“The District Attorney's Office has obtained criminal convictions on two of those deputies, and there is an ongoing investigation involving additional deputies. We will continue to adhere to the rule of law and ensure constitutional rights are protected. County Counsel issued a written legal opinion which determined that the Sheriff's Evidence Booking Audit constitutes a personnel file, and as such, we are legally prohibited from disclosing a personnel file outside of a Pitchess motion. Motions should and will be litigated in a court of law. The Orange County District Attorney's Office looks forward to responding in court to Mr. Sanders' patchwork brief.''

Sanders replied, “The OCDA is no longer turning over police reports filled with misconduct because the Sheriff's Department's lawyers have convinced them that police reports are personnel records. I think they want to turn to a more neutral legal form for their advice.''

Photo: Getty Images

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