As you might expect, Dana Alden Fox—the private lawyer who recently represented the Orange County Sheriff's Department (OCSD) in its battle to avoid accountability for keeping an accused rapist on patrol duty and the resulting disastrous consequences for a young woman who appeared on The Real Housewives of Orange County—is a serious fellow. Fox long ago proved himself an aggressive defender of Southern California police officers accused of corruption and the law-enforcement agencies that try to protect such employees. In 2013, for example, I detailed his taxpayer-funded protection of two Fullerton cops who ordered a man unaware of his constitutional rights to step out of his home so they could lamely arrest him for public intoxication.
The lanky, beak-nosed 1985 McGeorge School of Law graduate who isn't prone to being outwitted or outworked during trials can be as wily as his name, which is why former Los Angeles Dodgers owner Frank McCourt probably hired him in the sensational Bryan Stow beating case. Fox dresses meticulously; voices objections in a plaintiff's wail worthy of an Oscar; shifts effortlessly between sneering brute and compassionate pal, depending on his needs; and, because hygiene must be a worry, flosses during breaks in testimony. He's also one of the region's most entertaining legal advocates.
When Fox's courtroom opponents give opening and closing statements, he waits for judges to focus their attention on a computer screen displaying spoken words in real time before launching into campy Paul Lynde-like performances, a barometer of his disapproval of what jurors are hearing. He puckers his lips as if he's sucking on sourball candies, shakes and swirls his head while scribbling dramatically on yellow Post-it notes, drops his chin to his chest, and throws his hands palms-up on a table before staring at the ceiling. My favorite is his rendition of a Slurpee brain freeze accentuated by forcing his eyes wide open for five or six seconds as if he'd seen Satan. More unintended hilarity ensues when, after such spectacles, Fox launches into an exasperated, arms-waving diatribe accusing opposing attorneys of unfairly manipulating jurors.
But there's nothing funny about what happened to then-21-year-old Alexa Curtin in Dana Point in the wee hours of June 28, 2014. During a civil trial in Los Angeles this month, Curtin attorney Dan Balaban told jurors OCSD Deputy Nicholas Lee Caropino knocked on Curtin's Nissan Versa window with his flashlight; gained entry; spread her legs; "rammed his fist" into her vagina; forced oral copulation; ignored her screams; inserted his penis for intercourse; yelled, "Take that, bitch"; and, about 20 minutes later, ejaculated.
"When he drove away in his car, he took a piece of me I never got back," a weeping Curtin testified at a two-day trial with a federal jury of four women and four men. "I was scared for my life. . . . This guy had a badge and a gun and the ability to kill me."
As the Weekly previously reported in detail, the situation grew stickier when Jeremy Jass, another Curtin attorney, made a bombshell discovery. Four months before the rape, scandal-scarred Sheriff Sandra Hutchens and her command staff knew another woman, this one 20 years old, had formally accused Caropino of sexually assaulting her while on duty on two separate occasions. Nevertheless, he was allowed to remain on patrol duty.
"The county's policy is they stop or suspend an internal affairs [IA] investigation until their criminal investigation is completed, whether it takes a week, a month, a year or years," Balaban told jurors. "And an officer accused of rape or murder or robbery or sexual assault remains on the job interacting with the public. That policy is reckless and dangerous. [In this case,] the criminal [probe] took nine months. In that nine months, he sexually assaulted Ms. Curtin."
OCSD and Fox initially plotted a two-pronged defense, fighting the rape allegation by implying Curtin craved public sex with a cop because she'd worked in the adult porn industry and denying the existence of a delay policy for the IA unit. U.S. District Court Judge Stephen V. Wilson ruined those strategies with pretrial announcements. A conservative 1985 President Ronald Reagan appointee, Wilson ruled Caropino's "sexual assault of the plaintiff shocks the conscience" and violated her constitutional rights against unreasonable government seizures. He also determined that the department had a policy or practice of suspending IA probes until the conclusion of criminal investigations.
The only question for the jury to decide was whether that policy, which blocked an IA investigator from taking any action, including putting Caropino on desk duty until he could determine the truth, was the "approximate cause" of the Curtin rape. For Balaban, the answer was easy. If they'd been remotely interested, OCSD officials in either the criminal division or IA unit could have rapidly obtained evidence that tended to support the first woman's allegations.
For example, Caropino disengaged his body microphone during the DUI stop and turned off both the audio and video recorders in his patrol vehicle while transporting the woman to lockup. A camera on the roof of the Orange County Jail recorded the deputy suspiciously keeping her inside his patrol vehicle for 40 minutes at the parking lot, a period during which he should have been rushing to obtain a blood test that would have established her level of intoxication. That same video showed him walking around his patrol vehicle, opening the back door where the woman sat and standing there. That's when she says he ordered her to stroke his erect penis.
The woman's claim that Caropino left his jurisdiction while on duty after she'd been released from custody, entered her home and demanded sexual intercourse wasn't contradicted by the officer's dash-cam video, which proved he'd stayed inside the house for an hour without telling his supervisor of his location.
Balaban asked, "Does it make any sense under the sun that we're going to leave a deputy accused of these things on duty with the risk he could do it again?"
Given nobody inside OCSD had been in any rush to obtain important evidence, Fox faced an uphill battle to shield the department from liability. He portrayed the lollygag effort to determine the validity of the first woman's complaint as "good police work," and he argued there was no way "to connect the dots" between the IA stall policy and the rape. Instead, Fox focused his defense on a misdirection angle, spinning that even if the IA probe hadn't been delayed, its existence wouldn't have saved Curtin.
"The only way to determine if you've got a bad apple is not through an internal-affairs investigation," said Fox. "[The criminal investigator] needed to find out if [the first complaint against Caropino] had merit. . . . If a red flag goes up, he can share it with IA."
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But the plaintiff summoned Jeffrey Noble, the former deputy chief at the Irvine Police Department, to testify as a police practices expert. Noble, who ran his agency's IA unit for nearly five years, opined that OCSD had enough preliminary information to quickly place Caropino, who was ultimately fired, avoided criminal charges, and refused to testify, on desk duty before he encountered Curtin.
"You do concurrent [criminal and IA] investigations because if you have an officer commit misconduct, there's a likelihood he or she might do it again," he testified. "The overarching goal is to protect the public. . . . It would be absolutely wrong not to take action."
Fox acted offended by the point.
On Aug. 4, the jury agreed with Noble. They awarded Curtin $2.25 million. Orange County's Board of Supervisors is routinely misguided by our two-faced sheriff, so expect the panel to appeal.