It wasn’t surprising when word leaked last week that the Orange County Sheriff’s Department (OCSD) quietly planned to erase emails. Such a move at an aboveboard agency might be worth a yawn. But freshman Sheriff Don Barnes’ decision to destroy hundreds of thousands, if not millions, of government records is alarming because of the timing and OCSD’s sordid history.
During the jailhouse-informant scandal, for example, deputies employed sleazy bureaucratic tactics disobeying court orders for the production of documents. They claimed under oath no knowledge of records systems they used on a daily basis for years. Revelations of the systems later prompted them to hide or shred files rather than share with judges and juries content that, we eventually learned, proved OCSD cheating.
Sheriff Sandra Hutchens, Barnes’ shifty predecessor and mentor, insisted her deputies innocently thought they could ignore judicial commands. But the problem wasn’t naiveté; it was contempt. To create shameless plausible deniability for failing to surrender demanded records, they even bizarrely relabeled files only a clairvoyant with spectacular powers could have decoded for defense-issued subpoenas.
That nationally embarrassing saga, plus two recent developments explains Barnes’ controversial planned email dump. California’s new Senate Bill 1421 requires law-enforcement agencies to release police-officer-corruption records that had been kept hidden from public view for decades. Accustomed to special secrecy protections for their members, the state’s cop-union bosses flew into a tizzy and have strategized how to thwart the law. OCSD sources say deputy wrongdoing was often memorialized in emails because agency officials never thought those records would be seen by outsiders.
The second development pertains to an OCSD scandal that emerged in August after Hutchens spent two months hoping the mess would disappear or a cover story could be concocted. Using a privatized jailhouse-telephone system, deputies for at least three years trampled the U.S. Constitution by secretly listening to attorney-client calls with pretrial inmates. That ill-gotten intelligence allowed police and prosecutors insight into defense strategies and made defendants unwitting witnesses against themselves, a situation our Founding Fathers detested.
Naturally, OCSD officials deny any wrongdoing, but they have been less than forthcoming about how many calls were surveilled. That brought us to a March 15 hearing inside Superior Court Judge Gregg L. Prickett’s Santa Ana courtroom. A team of public defenders have been waiting for months for Prickett’s special masters to notify victims of the phone scheme.
Not satisfied the full extent of the scandal is known, they requested an evidentiary hearing at which deputies and officials with the private phone contractor, Global Tel*Link (GTL), could explain murky, inconsistent accounts of their activities under oath.
“We have to make sure everyone’s rights are protected in this county,” Deputy Public Defender Sara Ross told Prickett. “We have to ensure justice is done.”
But the judge, a former prosecutor, balked. “I’m denying the evidentiary hearing without prejudice,” he stated. “I may [order it]. We’re just not there yet.”
Perhaps more urgently, Ross and the other present public defenders joined in alarm with colleague Scott Sanders, who discovered OCSD’s email destruction plan. According to an internal memo dated March 12 from the agency’s Support Services unit, all email files—including those sent, received and saved as drafts—that are two years and one day old will be automatically deleted on a rolling basis. Deputies and staff would have to be trusted to take affirmative actions to separate each email that is subject to pending legal holds and public records act requests.
For the devious-minded, the new policy could, to use the old idiom, kill two birds with one stone: a massive amount of emails related to officer corruption as well as attorney-client call monitoring would disappear on April 1.
Sanders believes there’s no coincidence in the timing of the department’s internal announcement. It happened only six days after he formally requested OCSD records, including emails, related to the illegal phone surveillance. This public defender, who also uncovered the snitch scandal in 2014, says the new policy would erase emails for 27 of the 41 months when jailhouse calls to defense lawyers were recorded. He asked Prickett for a temporary order blocking Barnes from erasing any emails until the scandals are over.
“The request for at least a temporary order prohibiting any and all deletions is necessary to protect due process,” Sanders wrote in a brief. “The OCSD had more than three years to stop recording [attorney-client] calls—a period of time in which deputies were listening and never shared that fact with defendants or courts—while the defense has only had months to figure out what precisely occurred and whose communications should be studied in a quest for answers.”
He noted that the same OCSD unit that ran illegal informant operations also executed the illegal call-monitoring scam and some of its members have been branded badged perjurers by judges.
“There is abundant reason for concern that members of this unit (and other members of the OCSD involved in any acts of related concealment), if left to their own decision-making powers and devices, would hide or destroy evidence,” Sanders added.
He bolstered his argument by citing MuckRock.com, a nonprofit journalistic website that obtained and published some email exchanges between OCSD and GTL. The communications reveal glaring discrepancies in the agency’s and corporation’s public declarations. Sanders asserted they even suggest efforts of a cover-up to dampen public concern.
Deputy County Counsel Annie Loo, a former public-corruption reporter at the Orange County Register, laughably came to the rescue of the deputies, arguing the public defenders had “maligned” them with “flat-out false” claims. “There is no evidence whatsoever of wrongdoing related to the emails,” Loo said while strenuously opposing Sanders’ request to temporarily suspend deletions of all agency emails. She must have never digested Superior Court Judge Thomas M. Goethals’ historic 2015 ruling that OCSD deputies brazenly ignored legal holds not to destroy records.
But if Prickett was cordial with Ross, he was sassy with Sanders, lecturing him wrongly on at least two points: that he should have attached a personal declaration to his motion when, in fact, he had and that his suspension request pertained only to the call surveillance-tied emails. Never mind, apparently, that on Page 7 of Sanders’ motion, he’d written, “This Court should issue an immediate [temporary] order directing that employees of the OCSD not destroy any of its emails.”
Wearing a smile of contempt and rolling his eyes, Prickett lamely repeated his stance that Sanders’ request had not been for all emails. The judge did, however, order the suspension limited to the call-monitoring issue “out of an abundance of caution.” He also scheduled a March 29 hearing to revisit the controversy.
CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; earned six dozen other reporting awards; obtained one of the last exclusive prison interviews with Charles Manson disciple Susan Atkins; featured in Jeffrey Toobin’s The Best American Crime Reporting; and hailed by two New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.