Did Appeals Court Read Own Ruling Clearing OCDA and Capistrano Unified Schools' Susan McGill?

In their California 4th Appellate District, Division 3, ruling in McGill v. Superior Court of Orange County, the justices exonerate both Susan McGill and the Orange County District Attorney's office (OCDA), which brought charges against the Capistrano Unified School District's former assistant superintendent.

But, in reading the entire decision, it's unclear why the justices did not follow through with its previous threat to cite the OCDA with prosecutorial misconduct.

Brew a strong pot of coffee, build a fire to curl up next to and read the entire ruling here. See if, like me, you're at a loss as to how the OCDA is skating justice following a five-year legal battle over the creation of Capo Unified's so-called “enemies list.” McGill, who was the final district administrator facing criminal counts in the case after charges against Superintendent James Fleming had been tossed out, was accused of perjury and conspiracy.

Here are but five examples, taken directly from the decision, that show the OCDA maliciously went after McGill, who retired in June 2006, which is two months before the grand jury began what would end up being a nine-month investigation into whether Fleming alone misused public funds:

  • McGill was among the very first witnesses to testify,
    testifying relatively early in the process in mid-August 2006, right
    after the testimony of Kate McIntyre, who had been Fleming's personal
    secretary. McGill was
    not the “target” of the grand jury's
    investigation. In fact, she was specifically told at the beginning of
    her testimony that there was “no expectation or intention” at that time
    of any charges against her “as a result” of the investigation.

  • The perjury charge centered on what the OCDA claimed was a discrepancy in McGill's grandy jury testimony. She said she planned to go to county Registrar of Voters office on her own–and without Fleming directing her to–to write down the names of people who signed various petitions seeking the recall of school board members. Why? Because she anticipated a lawsuit against the district and wanted to know why some signatures had been ruled valid and others had not. David Smollar, the district's public relations man, joined McGill on the registrar trip against her wishes. She testified that Fleming knew they were going to copy the signatures and that she assumed Smollar would forward the list to Fleming. But among the “things” Smollar left behind when he retired around the same time as McGill was a short memo, ostensibly
    from McGill to Fleming, and no “cc” to Smollar, that basically stated, “per your request, here's a list of
    signature-gatherers.” The OCDA eventually concluded this was a smoking gun. Nine months after McGill testified, her secretary, Barbara Thacker, was called to testify before the same grand jury that was still
    ostensibly investigating Fleming and had made clear McGill was not a target. Thacker had no memory of McGill giving her a memo to type for Fleming, but–as the justices write: [A]fter being asked
    substantively the same question over and over (and over and over) again
    by two separate deputy district attorneys each taking turns asking that
    same question–Thacker said that McGill had
    probably given her the memo to prepare. Though she was now unwittingly a target of the investigation, the justices note: McGill was never asked to return to the grand jury to
    explain the memo, or given the chance to allow it to refresh her memory
    of the events concerning the trip to the registrar's office.


  • As noted, initially McGill was not only not
    the target of the grand jury's investigation, but she was specifically
    told there was no expectation of any charges against her from the
    proceeding, which was focused on Fleming. Even so, at the close of the
    investigation in May 2007, the two trial-level deputy district attorneys
    conducting the investigation not only asked for an indictment of
    Fleming, on three counts, but for an indictment of
    McGill, on two counts, as well. One of those counts was intrinsic to the grand jury proceeding itself, that is, based on alleged perjury
    before the grand jury in conducting the investigation of Fleming. We
    should point out now that what exactly McGill was alleged to have
    falsely told the grand jury under oath is not spelled out in the
    indictment. All the indictment tells McGill is that she was alleged to
    have lied somehow, somewhere, in her grand jury testimony. Literally,
    the indictment said no more than that. . . . Indeed, to this day in 2011, the district attorney's office has yet to actually
    quote the exact words which McGill uttered under oath and which the office claims she knew were false. This finding from the justices strikes me as all the more odd when you consider the ruling includes a transcript of McGill's and Thacker's entire grand jury testimonies.

  • The
    conspiracy allegation, as it was eventually fleshed out in briefing at
    the appellate level, was based on the theory that McGill and Fleming
    conspired to “`use district resources to further their own personal
    (Fleming, supra, 191 Cal.App.4th at p. 100, fn. 23
    [quoting district attorney's office's brief].) This court affirmed the
    trial court's dismissal of the conspiracy count in
    Fleming, and that judgment is now final. . . . But
    what about the school district's public relations officer Smollar, who
    by every version of the facts was at least as involved in the trip to
    the registrar's office and the preparation of the list as McGill, and in
    whose own “things” the memo, ostensibly from McGill, had been found?
    Smollar was never called to testify before the grand jury. . . . But
    there was something more than just the fact that Smollar was never
    called: At the very end of the grand jury's investigation in mid-May,
    one of the deputy district attorneys presenting the witnesses to the
    grand jury affirmatively instructed the grand jury that “anything”
    Smollar “might or might not say” was “irrelevant” to the “crimes” on
    which the grand jury was being asked to consider, which included the
    perjury charge against McGill.

  • During
    the course of this writ proceeding, McGill presented a request for
    judicial notice of an affidavit from an investigator employed by the
    district attorney's office to obtain a search warrant of the school
    district's offices. The affidavit recounted a conversation which the investigator had with
    Smollar involving events just after he and McGill had returned from the
    registrar's office, and that affidavit makes it look like the district
    attorney's office had concealed, in violation of section 939.71, certain
    statements from Smollar that were exculpatory of McGill (mostly showing
    that Smollar, rather than McGill, may have been the moving force behind
    the substance of the January 12, 2006 memo). . . . [T]he district attorney's office did fail to realize the degree to which Smollar's statements were indeed
    exculpatory of the perjury charge against McGill. The affidavit's
    recounting of Smollar's statements to the investigator suggested a
    scenario in which McGill was only perfunctorily involved with the
    January 12, 2006 memo (referred to by the district attorney's office as
    the “Second Enemies List”), such that she easily could have forgotten
    about it, or not considered it her own “report” to Fleming.

Despite these shameful tactics by the OCDA, the justices found: Being wrong on a legal point is not prosecutorial misconduct,
it's just being wrong. We conclude there is no prosecutorial misconduct.

If not misconduct, one wishes they could have at least tossed in “slimy as hell.”

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