The OC District Attorney's Office's Legal Deceit

The OC District Attorney's Office's Legal Deceit

A sad fact of life is that normally decent people occasionally commit horrific acts. It's an even worse scenario when people with government power transgress—say, when prosecutors in the Orange County district attorney's (OCDA) office try to put innocent citizens in prison. You would think this observation was hyperbolic gobbledygook if you hadn't been paying attention.

But faithful readers of the Weekly know, for example, the names James Ochoa, Joshua Moore, Shantae Molina and Arthur Carmona, regular people plucked from their regular lives by agents of our criminal-justice system, then tossed into a very real hell. Each was wrongly conviction of or charged with serious felonies because of knee-jerk acceptance of incompetent police work and callous indifference to exculpatory evidence.

In the Ochoa case, prosecutors dismissed as irrelevant the fact that DNA left at a Buena Park crime scene belonged to a different man who was, we later learned, the guilty, career criminal. With Moore, prosecutors asserted that his fondness of writing gangster-rap rhymes on his schoolwork morphed him into an armed robber; the Lakewood teen's only real crime was liking hip-hop and hanging out with black people. In the Molina case, a prosecutor allowed a deputy to brazenly lie under oath about key forensic evidence. In Carmona's case, witnesses to a robbery didn't finger the innocent youth as the perpetrator, but they changed their minds after Costa Mesa cops forced the 16-year-old to wear the Los Angeles Lakers cap left behind by the robber.

It's necessary to recount those travesties because local prosecutors are in the process of enshrining two more names in their embarrassing screwup list: Jim Toledano and Michael Roberts.

You may not care that Toledano, once chairman of the Orange County Democratic Party, and Roberts, a onetime Corona del Mar fitness trainer and rare-cactus supplier for the county's ultra-wealthy, are charged in a Newport Beach extortion case involving impotence, adultery, love letters, betrayal, high society and a suitcase loaded with $350,000. Perhaps you can't empathize because you don't know these men, or because it's not you who's facing prison for crimes that you didn't commit. You might even assume that trial judges can be trusted to prevent miscarriages of justice, although they failed to do so in the previously mentioned cases.

I first wrote about the charges 187 weeks ago based largely on what was then available: the government's spin on events. Most commonly, that's the only side reporters hear before a trial. While later double-checking details, however, problems with the prosecution's blackmail case arose, including contradictory statements from the key witness, suspicious records, ignored exculpatory facts, nonsensical assumptions, a premature police sting and a gross manipulation of the grand jury process.

Rebecca Olivieri, the senior assistant district attorney prosecuting Toledano and Roberts, is part of a unit in the DA's office [3] that has a history of winning grand jury indictments by keeping relevant facts away from the all-citizen panel. That's not just my view; that's the view of three Republican-appointed state appellate justices.

In May 2011, justices David G. Sills, William F. Rylaarsdam and Eileen C. Moore dismissed Olivieri's felony perjury charge against Susan McGill, an assistant superintendent for the Capistrano Unified School District. The prosecution's stance was that it is legally entitled to block the grand jury from hearing, as the justices observed, "highly relevant testimony" that would undermine the case. [4]

The justices were not amused.

"[The DA's view] betrays an assumption that the purpose of the grand jury proceeding was to obtain an indictment against McGill instead of fairly sorting out whether there was probable cause to indict McGill for perjury," they declared in a stern, bombshell ruling. "In fact, [the DA's position] reveals an unstated 'ham sandwich' premise, namely that grand juries are and should be the rubber stamps of prosecutors. . . . [The grand jurors] were entitled to have the chance to consider [exculpatory evidence]." [5]

To emphasize their concern, the justices drove home the point to the OCDA: "Grand jury procedure must not revert back to the point where to be indicted is to be practically convicted. Our Legislature has provided protections against that sort of thing. Those protections were not, however, followed [against McGill]."

The justices didn't know at the time of the McGill ruling that Olivieri had a year earlier tricked a different grand jury to win all the charges she wanted against Toledano and Roberts. [6]

(For details of the alleged crime, as well as my previous detailed criticism of the indictments, please see "The Michael Roberts-Jim Toledano Sting Stinks," June 23, 2011, and "Free Jim Toledano and Michael Roberts Now," Sept. 8, 2011.)

Two of my prior criticisms must be repeated here to appreciate newly discovered exculpatory evidence: Olivieri's key grand jury witness, lawyer Paul Roper, testified that Toledano and Roberts had no legitimate civil complaint against his ultra-wealthy clients, Dick and Priscilla Marconi, and thus their demand for a $350,000 out-of-court settlement was extortion. Never mind that Toledano stated in writing a clear basis of a potential lawsuit based on Priscilla's alleged harassment campaign that Roberts says cost him lucrative cactus sales with the county's upper crust.

You can't get a more biased witness: Roper isn't just the alleged extortion victims' private lawyer, but he's also their longtime business partner. Olivieri allowed the grand jury to hear only his side of a May 2008, Newport Beach law-office meeting with Toledano that is the basis of the charges.

It's not just that Roper has given contradictory versions of events. He also misled the grand jury when, with Olivieri's prodding, he claimed that Toledano's conduct wasn't recognizable as aboveboard legal work. Roper testified he didn't know of any case in which a civil attorney sought a financial settlement prior to filing a lawsuit. Though the act happens thousands of times each day throughout the nation, he assured the grand jury—most of them elderly, retired folks who've been approved for service by sheriff's deputies—it never happens.

In the 1980s, Jessica Hahn, a church secretary for televangelist Jim Bakker of Praise the Lord (PTL) network infamy, claimed she had been raped and sought a $265,000 out-of-court settlement. (It was a big, national scandal back in the day.) The man who represented Hahn and won the settlement by threatening to file a lawsuit: Roper.

It gets worse.

Now, the defense has discovered that Olivieri possessed but kept secret from the grand jury Roper's handwritten notes he made while meeting Toledano. Surely coincidentally, the notes help destroy her case. Her key witnesses' record nearly matches Toledano's notes, and there's no indication of extortion. In fact, Roper began his notes with "Loss [to Roberts caused by Priscilla Marconi's alleged derogatory gossip] $350,000." Toledano's own notes for the same portion of the meeting read, "Lost income, [cactus] plants for job." [1]

Yet, Olivieri won indictments by asserting all the evidence proved Toledano committed extortion on Roberts' behalf because he never voiced to Roper a legitimate legal cause of action against Priscilla.

"Not allowing the grand jury to see that evidence was materially and profoundly prejudicial and a clear violation of Toledano's constitutional rights to a fair hearing," wrote Toledano attorney David E. Swanson in a brief filed this week in Orange County Superior Court. "That indictment, based on testimony that completely misrepresented the actual facts of the case, should be set aside."

Given that it's unlikely Olivieri will surrender, the decision to do the right thing is now up to Orange County Superior Court Judge David A. Hoffer, a former Assistant United States Attorney. Hoffer's an honorable man. But if he allows the DA's office to proceed, let's hope that an alert jury is smart enough to not send two innocent men to prison after a scheduled April trial.


* [1] This portion was corrected to reverse Roper and Tolendano's notes. Jan. 11, 2013.

[2] Rebecca Olivieri's name has been corrected throughout. Jan. 11, 2013.

[3], [4], [5], [6] Though Olivieri was a lead prosecutor on the McGill case, the DA’s media office says a different deputy DA handled the grand jury sessions, so we’ve modified sentences accordingly. Jan. 15, 2013.

The OC District Attorney's Office's Legal Deceit
Bob Aul


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