When Orange County Superior Court Judge M. Marc Kelly issued a numbskull explanation of his February prison sentence for a 20-year-old Santa Ana man who raped his 3-year-old half-sister in a garage, District Attorney Tony Rackauckas pounced. Rackauckas' move was understandable. Despite Kelly's posturing to the contrary, sodomizing a toddler is an act of horrific violence, even when an offender announces a post-arrest religious awakening. Indeed, the child complained of pain and suffered visible injuries, according to law-enforcement records.
"We have a very vulnerable victim and innocent victim," the four-term DA complained in April as he announced an appeal of Kevin Rojano-Nieto's 10-year prison sentence, 15 years below California's mandatory minimum punishment for such a crime.
Realizing the public-relations coup at hand, Rackauckas--who has been downplaying evidence his prosecution teams cheated in multiple felony cases, including People v. Scott Dekraai--spent several weeks grabbing media opportunities to publicize his "vehement" aversion to Kelly going soft on a sexual predator. But is the DA's outrage situational? Would Rackauckas react as passionately if someone on his staff allowed an accused child molester to go unpunished? We don't have to guess, thanks to Joseph Semir Mutwakil Amin of Irvine.
Amin didn't visit an Albertsons grocery store to shop in 2012. The 23-year-old roamed the aisles seeking sexual gratification. At least six times over three months that year, he followed shoppers, waited for advantageous timing and stuck an iPhone up his unwitting victims' skirts to record illicit videos.
One woman who had reached into a grocery freezer sensed something afoul and confronted Amin, who ran from the store. Irvine Police Department (IPD) confiscated the suspect's cell phone, which held incriminating images; the investigation caused Rackauckas' office to file two misdemeanor charges for loitering and disorderly conduct. The defendant, who had begun psychological counseling, agreed to plead guilty. Deputy District Attorney Tina Patel and Judge Brett London signed off on a punishment of informal probation for three years, sex-offender registration and routine fines. The case languished in non-newsworthy obscurity for all of 48 hours before disaster struck.
Brian Gurwitz, Amin's retained defense attorney, had negotiated the plea deal with Patel. A former senior deputy DA known for his quick wit and attention to details, Gurwitz got the prosecutor to accept a handwritten addendum to the court's plea contract. The language wasn't ambiguous, stating that the arrangement would resolve "all incidents referenced in [the] police report, charged and uncharged."
Two days after the sentencing hearing, IPD contacted the DA's office. Officers said they were ready to file felony charges against Amin involving his sexual touching of two 12-year-old girls. You can imagine the severe indigestion Patel should have immediately suffered. She'd already agreed to block all "charged and uncharged" incidents mentioned in police reports. Using boldface font, the reports specifically highlighted the pending older investigation involving the minors, a fact the prosecutor should have known but didn't. She'd incredibly signed off on the plea deal without reading the entire police file in her possession.
Because of the Dekraai scandal, the public has learned in the past 16 months that some prosecutors inside the Orange County district attorney's office (OCDA) resist accepting responsibility for tainted job performances. Patel, a UC Irvine graduate, chose a similar strategy. She argued it wasn't her fault Amin gained immunity because an unethical Gurwitz defrauded her into not doing her job. As if the finalized plea deal didn't exist, cops then arrested the defendant, and on Oct. 9, 2012, OCDA slapped him with felony charges involving the girls. Gurwitz quickly filed a motion to dismiss, citing the terms of the agreement. Prosecutors countered that the contract wasn't enforceable because of fraud. After an evidentiary hearing, Judge Derek G. Johnson rejected the assertion that Gurwitz acted unethically, saying, "I haven't heard any evidence regarding fraud on the part of Mr. Gurwitz." But he found that while Patel was negligent for failing to read the police reports, OCDA shouldn't be bound to a deal that thwarted the felony molestation cases.
The defense didn't quit. After a preliminary hearing, another judge, David A. Hoffer, sided with Johnson's decision. The cases would continue. Following a third appeal, justices at the California Court of Appeal in Santa Ana ordered Judge London to review the situation; he also rescinded the plea bargain. In a fourth effort, the defense--which had been assumed by the Orange County public defender's office--asked a three-justice appellate panel to weigh in.
Prosecutor Matthew Lockhart claims Gurwitz "pulled a fast one" on Patel, who'd been too "busy" to read the police reports before closing the case. Lockhart argued to the court of appeal that his colleague committed a "mistake of fact" that, under contract law, voided the deal because she'd wrongly assumed the undigested IPD documents contained only information about the Albertsons videotaping or similar misdemeanor conduct. He also claimed the defense lawyer had an ethical obligation to alert the prosecutor to the report's felonious contents and that good public policy demanded revocation of the deal.
"The fact that the defendant was a suspect in molesting two children was unknown to Ms. Patel, whose sole intention was to agree that no other prosecutions for misdemeanor 'up the skirt' pictures on [Amin's] phone would occur," Lockhart declared. "A clearly guilty defendant will escape appropriate justice not because of police misconduct, speedy trial rights or jury acquittal, but because of a plea agreement born out of a mistake of fact in a busy misdemeanor-arraignment court. Such a term cannot stand, as it violates the public interest in shocking fashion."
To force OCDA to bear the burden of Patel's error would be "unconscionable," according to Lockhart, who compared the situation to a car dealership's lawful ability to refuse a contact based on an erroneously low, advertised vehicle price.
Justice Eileen C. Moore accepted the stance. "Why the prosecutor did not read the police reports more carefully is not at issue here," Moore declared on June 23. To her, the key issue was that enforcement of the plea deal would mean "a sexual deviant" would go free. She reasoned, "The safety of children is at stake."
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But Moore landed in the minority. Justices William Bedsworth and Kathleen E. O'Leary rejected Patel's posturing as a victim of Gurwitz's guile, noting, "She could have read the [police reports] if she wanted to," and therefore must assume responsibility for the consequences.
In an apparent response to Moore's overarching worry over kids, they stated there is another compelling public-policy concern. "As representatives of the government, it is particularly important for prosecutors to live up to any and all promises that persuade a defendant to give up his constitutional right to trial and plead guilty to a criminal offense," Bedsworth wrote for the majority. "Because the People agreed to refrain from prosecuting [Amin] for all incidents referenced in the police report in that case, and because the police report clearly and specifically refers to the conduct underlying the felony charges [he] is currently facing, those charges cannot stand."
Unlike in the Judge Kelly fiasco, Rackauckas didn't hold bitter press conferences about the results of Patel's laziness and responsibility dodge. He didn't even issue terse press statements. Rackauckas promoted her to handle felony cases.