Lockyer Dances the Dipsy-Do, Tricky-Lawyer Thing With DA
In recent months, courthouse sources claimed Democrat trial lawyer allies of Republican Orange County District Attorney Tony Rackauckas were strenuously lobbying Democrat Attorney General Bill Lockyer to kill a state investigation into the DA's ethical lapses. "We understand that Lockyer is under pressure by Democrats like Wylie Aitken to leave the Rackauckas scandal alone," one law-enforcement source said in early September. "They are driving the AG nuts to side with Tony."
So it was not surprising when the Los Angeles Times broke the Sept. 28 story "State Probe Clears OC Prosecutor." At an Anaheim fund-raising event attended by Aitken and other Democrat trial lawyers, Lockyer granted Times reporter Jean O. Pasco an exclusive interview. "We looked into whether there were criminal deeds, and we found none," he said. "Our job is basically done."
On Sept. 29, Martin Wisckol of The Orange County Register confirmed Pasco's story. "There is no evidence of criminal wrongdoing," Lockyer told Wisckol. "There's a lot of commentary in the grand jury report about office mismanagement and staff favoritism, but that's not a crime. If anybody's going to do anything about it, it will have to be the voters."
Though he did not agree to an interview, Aitken—head of the local Democratic Foundation, adviser to Congresswoman Loretta Sanchez (D-Garden Grove) and, despite the political party difference, a longtime Rackauckas pal—must have been relieved. The DA certainly was. Choosing understatement as his response, Rackauckas told Pasco he was "pleased." He told Wisckol he was the innocent victim of a political witch-hunt.
But Rackauckas' relief may have been premature. On Oct. 18, Lockyer weighed in again—this time in a letter to the DA. No longer was the grand jury report merely "a lot of commentary." In this version, the attorney general described evidence of the DA's abuse of office as "substantial" and "legitimate." Lockyer also said it was "disconcerting" that the DA had tried to create an "inaccurate impression" about the validity of the grand jury's June findings. "Your assertion that the grand jury investigation was politically motivated, designed or manipulated is simply false," he wrote.
At the end of the four-page letter, Lockyer took his biggest slap at Rackauckas. He told the DA to investigate who on Rackauckas' staff illegally leaked confidential personnel files on former Deputy DA Mike Jacobs. Despite his talent as a homicide prosecutor, Jacobs was fired last year after he refused to condone Rackauckas' use of the powerful district attorney's office to aid wealthy friends and punish political enemies. As Lockyer surely knows, and as last year's grand jury hinted, it's likely that it was the DA himself—the one man with universal access to his office's files, a man who ranks personal loyalty above professional competence—who did the dirty work on Jacobs.
If Rackauckas believes the matter will disappear with time, there's this warning at the bottom of the final page: Lockyer cc'd the letter to the current grand jury foreman.
* * *
If the Lockyer letter was any indication, it sounded like Rackauckas hadn't been exonerated after all. A simple call to the attorney general's office should clear up any confusion about the two contradictory positions, right?
"If I write that Lockyer has not cleared Rackauckas would I be wrong?" I asked attorney general media spokesman Nathan Barankin.
"I think what's wrong about that is that it's not . . . [pause] . . . I'm not saying you would be wrong," said Barankin. "What's wrong about that is saying . . . No, no . . . that's not wrong."
I remained confused. After confirming the accuracy of Pasco and Wisckol's quotes from Lockyer, Barankin tried again. "The trouble with saying that the AG cleared the DA is the implication that everything that could be potentially troublesome has been evaluated and dismissed," he said. "And when you've asked whether there is anything ongoing regarding Rackauckas, I've said, 'No comment.'"
But Lockyer has already said he was "basically done," hasn't he?
"The key conditional word is 'basically,'" said Barankin. "In his comments to the Times and the Register, Lockyer was not trying to close out the roles and responsibilities we have with respect to the grand jury report."
What about Lockyer's statement to Pasco that he's found no evidence of criminal wrongdoing?
"If your perspective is, 'AG, just stay out of Orange County and don't comment on anything in Orange County,' they could have read those comments as, 'Oh, good, he's gone.' And if you are inclined to want to believe that, that's how you'd read it," said Barankin. "If, on the other hand, you are looking at it with the perspective the AG has some certain responsibilities and he's being asked on the fly by a reporter about a wide variety of things that have been said about Rackauckas—you might think, 'Oh, he's offering some general commentary,' but that is not specific as to his enforcement and oversight responsibilities."
Okay, which perspective is correct?
"How people choose to interpret this is theirs to do," he said. "But I will say this much: this wasn't any sort of sleight-of-hand thing or any dipsy-do, tricky-lawyer thing. When you are talking about legal matters, sometimes the precise way a question is asked and the precise way it is answered can make a difference."
Yeah, and so?
"Lockyer has never used the word 'clear,' when speaking about Rackauckas," Barankin said. "The [Oct. 18] letter represents the thinking of the attorney general and the Department of Justice. Let there be no confusion about that."
But Barankin's version doesn't jibe with Pasco's recollections. "I just didn't show up and do a drive-by (firing unexpected hostile questions)," the Times reporter said. "I called before the fund-raiser and asked for an interview, and he agreed to do it knowing full well what I would ask about. So it wasn't done on the fly, and his answers were unequivocal. I asked if he was going to be doing anything more with Rackauckas, and he said, 'No.' He left no room for doubt."
* * *
If Lockyer is flip-flopping, Rackauckas has been decisive. Nobody—except perhaps his misguided adviser, Republican strategist Michael Schroeder—can be certain how long after the Times' Sept. 28 story the DA waited to resume the moronic plotting and bungling that has plagued his four-year-old administration. It was apparently a matter of just minutes. On Oct. 26, Deputy District Attorney Michelle Lyman added her name to the list of more than 25 veteran prosecutors and detectives who have fled Rackauckas' scandal-ridden office in disgust. Lyman quit after the DA personally intervened in a case on behalf of Atlantic Richfield Co., whose shoddy underground gasoline-storage tanks have allegedly contaminated the county's drinking water supply.
If history is any indication, Rackauckas takes joy in siding against his prosecutors and with suspects—if those suspects are his campaign contributors. In two prominent earlier cases, the DA blocked his deputies from full investigations of two of his Newport Beach buddies: U.S. Ambassador to Spain George Argyros (whose property-management firm ran a $33 million "systematic rip-off scheme" against poor Vietnamese and Mexican immigrants) and Patrick N. DiCarlo (whose relationship with at least one East Coast mob family member raised suspicions in the DA's organized-crime unit).
The grand jury noted that Rackauckas, who is responsible for enforcing laws in Orange County, appears oddly unconcerned about the "appearance of impropriety." Sources in the DA's office say their boss has only been emboldened lately. In one example, a cocky Rackauckas told county officials in July that he was overriding the prohibition on using government accounts for alcohol expenses. The grand jury discovered that the DA had used taxpayer funds to pay more than $4,600 in bar bills for just one member of his staff, Don Blankenship.
On Oct. 8, four days after the Weekly story "Rackauckas Gives Aides Reason to Belch," the DA reversed himself and said he'd comply with the county's anti-alcohol policy. Nevertheless, according to records obtained under the California Public Records Act, Rackauckas hilariously continues to insist the consumed alcohol—enjoyed largely at the private Santa Ana Elks Lodge—should be considered legitimate expenditures on "legislative efforts." County auditor David Sundstrom is now trying to inspect the DA's expense reports.
Rackauckas' arrogance extends beyond word games and bar bills. "Since he believes Lockyer doesn't have the political will to come after him, he has become worse," said a deputy district attorney and former Rackauckas enthusiast. "The atmosphere [in the DA's office] is so tense, so unhealthy. There's a screw-up around every corner, and we can't fully focus on our responsibilities as deputy DAs. It's a nightmare."
To read the Lockyer letter in its entirety, follow these links.
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