Two More OC District Attorney Investigators Allege Misconduct, Interference with Investigations

Orange County District Attorney Tony Rackauckas during his opening statement in the trial of Fullerton police officers involved in the beating death of Kelly Thomas. (Photo credit: Orange County Register)

A high-ranking Orange County District Attorney prosecutor interfered with an investigation into Fullerton Police Chief Dan Hughes, telling an investigator that they wouldn’t look into an alleged cover-up of a former Fullerton City Manager’s drunk driving because he and Hughes are friends, according to a government claim filed with the County of Orange Friday.

The claim is one of two filed by current OCDA investigators, Tom Conklin and Abraham Santos, alleging they reported misconduct within the office to higher-ups but faced retaliation for whistle-blowing, especially after going to the Orange County Grand Jury.

The claims paint a picture of a District Attorney’s office “micromanaged” by District Attorney Tony Rackauckas, who “rewards his friends and punishes his enemies.”

“Assistant District Attorney Dan Wagner, Assistant District Attorney Ebrahim Baytieh, and Senior Assistant District Attorney Mike Lubinski were all involved in a cover-up, and they are all beholden to DA Rackauckas,” Conklin’s 13-page claim reads. “The culture in the OCDA office is one of punishing disloyalty.”

The claims come just two weeks after the DA’s chief investigator, Craig Hunter, filed an explosive claim alleging Rackauckas interfered in political corruption investigations involving friends and political supporters.

The DA’s office strongly denied Hunter’s allegations but didn’t comment Friday on the latest accusations.

Spokeswoman Michelle Van Der Linden said the office learned of the most recent complaints Friday through the media.

“Both claims are personnel matters involving litigation and as such, we are unable to discuss or provide additional information at this time,” Van Der Linden said.

The claims were filed against 11 DA officials, including Rackauckas, Baytieh, Lubinski and Wagner.

Filing the claims is a precursor to a lawsuit. If the county doesn’t respond within 45 days, or formally rejects the claim, the two investigators have grounds to sue.

Santos writes in his 16-page claim that Hughes, who is now the Assistant Director of Security for Disneyland, dispatched Sergeant Jeff Corbett in the early morning hours of November 9 to pick up then-City Manager Joe Felz at the scene of a DUI, and drive him home. Santos claims Hughes was calling in a favor from Corbett, who was once caught by another police officer having sex in his patrol car while on duty, but was never disciplined.

When Santos told Assistant District Attorney Ebrahim Baytieh that he was concerned about a possible cover-up of Felz’s DUI and the criminal obstruction of justice by Hughes, Baytieh allegedly responded, “I am friends with Chief Hughes and we are only going to be investigating the DUI and not anything else,” Santos claims.

Hughes, contacted through a Disney representative, did not return a request for comment Friday.

Fullerton Interim City Manager Allan Roeder declined to comment, citing a pending personnel investigation by the city into the handling of Felz’s DUI. Roeder said the city was awaiting the results of the DA investigation before taking its own action and has not been notified of its status.

Alleged Prosecutorial Misconduct

In a separate claim, Conklin alleges Deputy District Attorney Cameron Talley, who now is retired from the DA’s office, failed to turn over crucial information to defense attorneys in the case of Stephenson Choi Kim, who was found guilty of one count of murder and six counts of attempted murder in a shooting at a Cypress café in 2004.

The District Attorney’s office is under investigation by Department of Justice, California Attorney General and Orange County Grand Jury for separate allegations that they violated criminal defendants’ rights by depriving their defense attorneys of key information obtained by jailhouse informants.

Kim, who was convicted of murder in 2011, was seeking a mistrial based on allegations Cypress Police Department investigator Susan White lied under oath, testifying a witness positively identified Kim as the shooter, when the witness failed to do so on two separate occasions.

That triggered the DA’s office to assign Conklin to investigate whether White committed perjury. According to Conklin’s claim, his investigation concluded that White “falsely manufactured” police reports and committed perjury on the witness stand.

Conklin claims when he submitted the results of his investigation, he was berated by Talley, for “doing the defense’s dirty work” and not waiting until after Kim was sentenced to complete his investigation, because now he would be required to turn over some of the investigation’s results to defense attorneys.

For the next four years, Conklin assumed either Talley, Lubinski, Deputy District Attorney Aleta Bryant or his supervisor Anthony Sosnowski, who all had been briefed on the investigation, had turned over the information to defense attorneys. But in 2015 he read an article in the OC Weekly about Kim’s case that didn’t mention his investigation into White. He then claims to have contacted defense attorneys himself in March and April 2017 to tell them about the perjury investigation.

In February 2016, Conklin claims Wagner tried to cover up the fact that the CD was never given to defense attorneys by slipping it into an envelope with other evidence that defense attorneys forgot to pick up, to create the appearance the information was available the whole time.

He claims that he was “marginalized, harassed and subjected to adverse actions by his superiors at the highest level of the OCDA” as a result of his actions.

Retaliation for Testifying before the Grand Jury

Santos and Conklin both say they were removed from a four-month investigation into a man planning a “Sandy Hook-style” shooting after they testified before the OC Grand Jury in late February and March of 2017.

According to Conklin, in a meeting with Lubinski, Lubinski told Conklin the human resources department was concerned it would “look bad” if he testified before the Grand Jury and advised him to “cancel his appearance or reschedule it.” Conklin testified two days later.

About two weeks later, Santos had a meeting with the assistant chief of investigations, Lou Gutierrez, in which he claims Gutierrez promised an assignment in the Special Investigations Unit if Santos stopped associating with Conklin.

Gutierrez allegedly told Santos, “I am watching you and I will bring you up in this organization” and warned him against testifying, saying “that if Santos didn’t bring certain things up then he wouldn’t have to lie about them,” according to Santos’ complaint.

Santos also claims that he was the subject of false rumors that he was sexually harassing a fellow employee.

Joel Baruch, the attorney for both Conklin and Santos, said Hunter, the chief investigator who filed a complaint weeks earlier, was “part of the problem” and facilitated retaliation against the two investigators.

Hunter, who was ousted in April, was also the subject of earlier allegations that he received and sent nude photographs on his county-issued cell phone.

While no investigation report has been made public regarding the sexting claims, Hunter’s attorney says they were found to be false. And they are apparently unrelated to Hunter’s current employment situation at the DA’s office.

This story was updated on 5/27/17 at 6:00 p.m.

A previous version of this article incorrectly stated that Susan White testified multiple witnesses positively identified Kim as the shooter. White only identified one witness. 

Contact Thy Vo at tvo@voiceofoc.org or follow her on Twitter @thyanhvo.