Overcharging and Bullying Show OCDA Lacks Maturity

Overcharging and Bullying Show OCDA Lacks MaturityEXPAND
Rusty Yunusoff

Sound judgment should be the hallmark of the Orange County district attorney's office (OCDA). After all, the agency possesses enormous power to temporarily suspend or end a person's freedom. But while a majority of prosecutions are blemish-free, the OCDA occasionally abuses its authority by making ill-advised decisions stemming from a win-at-all-cost mentality.

Take the recent, peculiar case of Isidro Medrano Garcia. Deputy District Attorney Whitney Bokosky filed kidnapping, rape and lewd-conduct charges against Garcia, who began a relationship with his Santa Ana girlfriend's 15-year-old daughter. They moved away together and remained undetected mostly in the Los Angeles area by adopting aliases.

For a decade, the two lived as a couple, marrying three years into the relationship. They attended Catholic Church, had a child and, as photographs demonstrate, happily attended various social events. She likely interacted with thousands of people—including police, doctors, nurses, babysitters, neighbors and priests—and never fled or hinted she was being held captive. Multiple witnesses who knew the woman during the period viewed her as both lazy and dominant in the relationship. Some people recalled her bragging that Garcia treated her "like a princess."

In May 2014, however, Garcia's wife—anxious to win a special immigration visa for being an alleged crime victim—contacted Bell Gardens police, identified herself as a missing person from Orange County and claimed various stories to explain why she'd waited 10 years to come forward, including that Garcia had drugged and beaten her, she was afraid of her mother, and she feared federal officials would deport her to Mexico. She also insisted her husband sexually molested their daughter, but she later recanted, according to court records.

Yet, Bokosky fully adopted the woman's story to support the kidnapping charge, sought to keep jurors from learning the suspicious immigration motivation (it would be "too time-consuming") and threatened to challenge the veracity of the eyewitnesses who'd seen the pair as a relatively normal. "[The alleged victim] accepted this life as the life she would live [and] felt there was no escape," the prosecutor opined. "She admitted to the police that she would tell him that she loved him so that her life would be easier."

Rather than simply acknowledge she'd overcharged the case, Bokosky doubled down, using taxpayer dollars to fly in Elizabeth Smart as a government witness. In 2002, a deranged couple kidnapped and held 14-year-old Smart captive in Utah for nine months. The prosecutor labeled her the perfect "expert witness" who could explain why a kidnapping victim such as Garcia's wife would fear making escape attempts.

But equating the Smart crime with Garcia's charges was disingenuous. Taken from her bedroom at knifepoint, Smart didn't know her abductors, who tied her to trees with steel cables, raped her daily, threatened death, and denied water and food for long periods. They certainly didn't stroll her into church regularly.

Senior Deputy Public Defender Seth Bank, Garcia's attorney, saw the Smart move as a ham-fisted attempt to win a weak case by inflaming the jury. A judge agreed, blocking the proposed testimony. In March, a unanimous jury rejected the government's sloppy kidnapping charge and couldn't agree on the rape count but convicted Garcia for lewd conduct. He received a four-year prison term.

Of course, the OCDA's woes don't stop with overly aggressive court maneuvers. If the 31-month-old, still-festering jailhouse-informant scandal has proven one thing, it's that District Attorney Tony Rackauckas tolerates ethical lapses, evidence hiding and law-enforcement perjury. Those revelations put the 73-year-old DA—who travels with a sour-faced security team befitting an Eastern European dictator—in a quandary.

From the outset, the county's five-term top lawman could have been honest, conceded the wrongdoing once others exposed it, discovered which defendants went to prison on tainted convictions and punished the offenders on his staff. Or he could have lied, inventing a fantasy world in which the cheating that has earned national calls for a Department of Justice investigation really wasn't cheating, but rather innocent mistakes that accidentally benefited his agency 100 percent of the time. Providing consciousness of guilt, Rackauckas quickly chose the latter, refusing to budge, sliming his critics and, in the process, creating a ripple effect that requires continual crisis management.

The DA's latest residual mess landed in the California Court of Appeal, which had to decide if Rackauckas' attacks on Judge Thomas M. Goethals have been legal. In the three years before Goethals overruled the OCDA's objections to special evidentiary hearings that produced evidence of law-enforcement corruption, prosecutors disqualified—or "papered"—him in just one murder case. In the 18 months after he launched those hearings, deputy DAs papered him in 55 of 58 homicide trials sent to his court.

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Richard M. King, the supervising judge who assigns felony panel cases, considered the OCDA moves as punishing Goethals for his integrity, as well as sending thuggish warnings to other judges contemplating similar future rulings exposing government cheating. Last year, King saw prosecutors paper Goethals in five more cases and refused to accept their challenges. He issued a sober, well-written, 46-page ruling in December blasting the moves, noting the tactics weren't just an executive branch intrusion over judicial independence. "[The OCDA's] actions have substantially disrupted the orderly administration of criminal justice in Orange County, the sixth-largest county in the nation," wrote the former high-ranking prosecutor, who outlined how emptying Goethals' calendar meant other judges' caseloads reached "crisis" status.

King decided he couldn't allow Rackauckas "to manipulate" the system and win the removal of Goethals from all important cases, especially "when that judge . . . has conducted a hearing which exposed that same party's misconduct."

Rackauckas' belligerent response was instructive. Once again, instead of taking the high road, the DA acted offended he'd been accused of unethical "blanket papering" of Goethals. He maintained his deputies disqualified the judge without his influence. Never mind that in January, an outside study group (handpicked by Rackauckas, by the way) reported "palpable hesitation" inside the agency to anger the DA.

The OCDA appealed King's order, claiming Solberg v. Superior Court (1977) gives attorneys the right to remove any judge without question if they simply sign an affidavit attesting to a fear of bias. Though Solberg involved prosecutors disqualifying a judge just four times, two state appellate justices—Kathleen E. O'Leary and Richard M. Aronson—reluctantly sided with Rackauckas in late July. Justice David A. Thompson issued a dissent, saying the DA is committing "systemic abuse" of the papering concept.

There was a point in early 2014 when Rackauckas dismissed this scandal as the work of one public defender, Scott Sanders. Quickly, he added a reporter (yours truly) as a member of a trouble-making duo. Then, Goethals blasted the corruption, and King balked about the DA's abuse of power. Now, there are three more disgusted people: O'Leary and Aronson joined Thompson in accepting King's findings as valid and are urging the California Supreme Court to review Solberg by pondering Rackauckas' "troubling," unprecedented scheming that brought a CBS 60 Minutes crew to OC this week.

Eight days after the appellate decision, an infuriated DA sent a letter to the justices. He demanded they delete three pages from their ruling—the ones that describe King's historic "factual findings." Issues of prosecutors intimidating judges and disrupting the criminal court system are "irrelevant," Rackauckas argued.

This month, the justices swiftly replied: No.

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