By Matt Coker
By R. Scott Moxley
By Charles Lam
By Nick Schou
By Gustavo Arellano
By Gustavo Arellano
By Steve Lowery
By R. Scott Moxley
DA's aggressive defense of Wall Street firm
After three hours of heated testimony from most of the 16 attorneys present, Superior Court Judge David O. Carter reached a decision in one of Orange County's most pressing political cases: time for pizza. The pizza break interrupted a drama that pits District Attorney Michael Capizzi against the public in a battle to unseal secret transcripts of Capizzi's investigation into the 1994 disappearance of $2 billion from the county's coffers.
At press time, Carter was still sequestered with his pizza; lawyers representing the Times O.C., O.C. Register, Wall Street Journal, the DA's office, Merrill Lynch and others had joined him. But not Capizzi, who missed not only the pizza but also the entire day's proceedings. Was Capizzi worried that the release of the transcripts would eventually prove that the county's top law officer never really tried to nail Merrill Lynch for its profitable role in the largest municipal bankruptcy in history?
What is certain is that, like countless ambitious politicians before him, Capizzi made the unfortunate mistake of boldly lying in public.
Despite a series of troubling questions from pesky reporters, Capizzi stared reassuringly into TV-news cameras and sang his version of the old Kenny Rogers song. The man who wants to be California's next attorney general would have us believe he knows when to hold 'em and when to fold 'em. "We got out of [the investigation] everything we could hope to achieve," he said--a line likely to be used in stump speeches.
And there it may have remained--Capizzi playing the dogged yet practical People's prosecutor--had it not been for two on-the-ball Superior Court judges. Just as the ink was drying on the DA's tidy version of "Mad Dog" Capizzi vs. Goliath Investment House, Judge Everett Dickey stepped in. Following a public records request by the Register's John McDonald, Dickey ordered prosecutors not to destroy the probe's records. At the same time, Carter announced he would conduct a hearing to consider declassifying the information.
In about the time it takes one of his SWAT teams to raid a Latino neighborhood, Capizzi demonstrated his true position did not mirror his public pronouncements. Instead, he immediately flip-flopped to Merrill Lynch's side (they adamantly oppose public access to the transcripts), and on July 3, he fired off a bizarre motion demanding--unsuccessfully--that Carter remove himself from the case. By July 21, the DA was locked into his new public stance, having submitted an argument that questioned the "propriety" of any judge who released the transcripts.
For those who might think Capizzi had innocently changed his position, consider this: he never had any intention of going against the multibillion-dollar corporation. The smoking gun: buried in the 2-foot stack of briefs filed on the disclosure issue was a remarkable revelation from Merrill Lynch criminal attorney Paul S. Meyer. In a pleading he hoped would be kept sealed but wasn't, Meyer--a longtime Capizzi-campaign contributor--conceded that during the two-year probe, he had been assured by the DA "on at least a half-dozen separate occasions that--absent the filing of an indictment--the secrecy . . . would be maintained."
Exposure of such backroom deals makes it easier to understand why Capizzi joined with Attorney General Dan Lungren (the gubernatorial candidate who helped negotiate the wrist-slapping settlement) and Merrill Lynch to effectively claim in court pleadings that none of them could think of a single reason to unseal the records. There was no mention of what the public loses by not having access to information--information for which taxpayers paid $3 million. Instead, there was open fretting about whether release of the records would be a "grave injustice" to Merrill Lynch and would subject the company and its employees to "public discussion" and "personal embarrassment."
Clearly, Merrill Lynch has some stake in keeping the transcripts sealed. But the motives of the Counsel for the People are not so readily apparent. Lungren wrung his hands over the fact that "there is absolutely no statutory authorization for the disclosure of testimony before a grand jury that has declined to return a formal charge"--apparently forgetting that his pre-indictment deal thwarted the grand jury's ability to make any determination and that no statute prohibiting the disclosure of this testimony exists. That fact was also lost on Capizzi, who must have been arguing something murkier than the letter of the law when he maintained that "as much as we would like to [release the records of the investigation], the law prohibits it." His seven-page brief makes not one argument in favor of disclosure, yet the pretense of research attests to his office's alarming tendency to first arrive at a conclusion, then pile up the legal gobbledygook to justify it.
Why are Capizzi and Lungren so eager to keep the public away from their closed investigation? David W. Wiechert, a former federal prosecutor who now represents former county Treasurer Robert Citron, said that whatever the motivations, they have little to do with the public's interest. "The district attorney's decision to let Merrill Lynch buy its way out of a criminal prosecution has created a selfish interest in protecting this decision from public scrutiny," said Wiechert. "Only through disclosure of the material can the wisdom, or lack thereof, of [Capizzi's moves] be evaluated." A Capizzi lieutenant thundered that Carter had no authority to unseal the records and that he was wrong even to hold the hearing. Carter appeared unmoved. He ordered pizza, and like an Old Testament king, he prepared a feast in the presence of his enemies.