Orange County District Attorney Todd Spitzer campaigned for office on a call for more ethical prosecutors, spending much of his 2018 battle against incumbent DA Tony Rackauckas publicly criticizing the ethics of prosecutors under fire for their role in a jailhouse snitch scandal.
His campaign ads said prosecutors “abused the law” in the 2011 Seal Beach mass shooting case, which an appeals court kicked the entire DA’s office off in 2016 for prosecutorial misconduct, including withholding evidence defendants are entitled to.
An internal probe into the controversy commissioned by Spitzer himself in April 2019 and released last month detailed significant unethical conduct by the two lead prosecutors, Dan Wagner and Scott Simmons – finding they “violated informant/discovery law, obfuscated and failed to accept responsibility for their lapses, trampled defendant rights, and denied the full imposition of justice for victims and their families.”
Yet after Spitzer took office as DA in January 2019, he took a starkly different approach towards the very same prosecutors he criticized as a candidate.
At their retirement party in December 2019, Spitzer praised them as “honorable men” who care deeply “about the ethics of our profession.” He said he reviewed all of the transcripts, and that the pair were “unfairly blamed” for what happened in their case.
“I have nothing but respect and admiration for them,” Spitzer said of Wagner and Simmons at their retirement party as he stood next to them.
“I know what honorable men that you are. And I know what great men you are. And I know how much you care about our practice of law. And I know how much you care about the ethics of our profession.”
It was a sharp contrast with what Spitzer previously told voters.
A Spitzer campaign ad in 2017 focused on Seal Beach shooting victims and their families being denied justice because of prosecutors’ misconduct in the case – which a Spitzer-commissioned investigation recently found was intentional by Simmons and Wagner.
“We still haven’t gotten justice, because prosecutors abused the law” in the Seal Beach case, said Paul Wilson, the husband of Seal Beach shooting victim Christy Wilson, in Spitzer’s ad.
“I’ll restore integrity to Orange County’s justice system,” Spitzer says at the end of the ad.
In an interview Monday, Wilson said the video of Spitzer’s retirement party remarks shows Spitzer betrayed him and the public.
“This guy clearly needs to resign,” Wilson said of Spitzer on Monday, after reviewing the video.
“He needs to resign immediately. He’s completely destroyed the credibility of that office. I mean, this video and what Todd said back then and what Todd says now is totally hypocritical. And how anybody could ever believe him after seeing this and reading this – I’m appalled,” he added.
“This guy came in with just such a promise of making things right,” Wilson said. “My anger comes from the betrayal.”
Spitzer declined to be interviewed for this article. His spokeswoman said Spitzer is a longtime colleague of Simmons and Wagner’s and that his comments at their retirement party “were based on his personal relationship with two prosecutors who spent decades in the office.”
“His comments should not be seen as passing judgement on what they did or didn’t do, because at the time he didn’t know. The independent investigation into [the Seal Beach prosecution], and who was responsible, wasn’t completed for another seven months,” said Kimberly Edds, the DA’s spokeswoman.
“Unlike the prior administration, we don’t write our conclusions before we conduct our investigations. And the findings of the independent administrative investigation are, and continue to be, deeply troubling to the district attorney.”
Yet the snitch scandal misconduct was already widely known at the time of the retirement party – and Spitzer himself had publicly criticized the prosecutors for during the 2018 election.
Assistant Public Defender Scott Sanders, who originally brought the misconduct in the Seal Beach case to light, said the video shows Spitzer didn’t actually care about the informant misconduct.
“Mr. Spitzer constantly railed about the misconduct in [the Seal Beach case] to help get him elected District Attorney. The video offers brutal confirmation it was just all just a series of acts to serve his changing agenda,” Sanders said.
“He couldn’t care less about the informant issue. Once in office, he tried to win the troops over by promoting Wagner to management. Then he tried to put the election further in the rear view mirror by apologizing and telling Wagner and Simmons it was all a mistake and they were the victims. And, finally once they are out the door, he denounced their misconduct and malpractice so it would look to the outside world like he is a prosecutor who stands up to wrongdoing. No matter where you stand it’s awful.”
Asked for a response to the criticisms, Spitzer’s office said the DA’s office sought to hold staff accountable through the administrative investigation Spitzer commissioned in April 2019, while respecting due process for staff, and that it’s “unfortunate” the two prosecutors left before the investigation was over.
“It is distressing that there are critics out there who advocate for due process for criminal defendants, but who refuse to accept that due process rights also extend to administrative investigations. Innocent until proven guilty is not just a phrase that is thrown around flippantly in the District Attorney’s Office; it actually means what it says,” said Edds, Spitzer’s spokeswoman, in a statement.
However, in the middle of the administrative investigation, Spitzer declared that the two prosecutors had strong ethics and were being treated unfairly.
“There was evidence, in their case that they were responsible for, that came to light that had nothing to do with them. And they were really unfairly blamed,” Spitzer said at the retirement party, about seven months before the administrative investigation was over.
“I know how much you care about the ethics of our profession,” he added later.
The Seal Beach shooting case was the highest-profile scandal in the Orange County DA’s office in at least a decade.
After he was sworn in, Spitzer kept both of the lead prosecutors in their positions, and promoted one of them into overseeing the DA’s offices at the Fullerton courthouse. And despite now saying they engaged in intentional misconduct to deprive defendants of their constitutional rights, Spitzer levied strong praise for their ethics when he spoke at their retirement party in December 2019.
“I have nothing but respect and admiration for them,” Spitzer told Wagner and Simmons as he stood next to them at their retirement party, video of which was quietly posted on YouTube last week.
“I want to thank you, okay? Because I know what honorable men that you are. And I know what great men you are. And I know how much you care about our practice of law. And I know how much you care about the ethics of our profession. And so, I apologize,” Spitzer added.
“I have read the transcripts of all these interviews, and I’ve read their transcripts, and it broke my heart when these discussions occurred about how all of this came to light.”
“There was evidence, in their case that they were responsible for, that came to light that had nothing to do with them. And they were really unfairly blamed. And they took a lot of responsibility on their shoulders that was completely inappropriate,” Spitzer added.
“The office let you down. The office let you down at a time when you needed the support of the office most.”
“On behalf of the Orange County District Attorney’s Office, and both of your phenomenal careers, and everything you laid on the table for our office – your blood, sweat, and tears; the cost to your families and your friends over time – I just want to thank you. I want to thank you for everything you’ve done for us.”
Last week, Spitzer’s office declared in a news release that a probe he commissioned in April 2019 into the Seal Beach case found that Wagner and Simmons “exhibited prosecutorial misconduct in the performance of their duties and there is clear and convincing evidence that they also committed malpractice due to intentional negligence.”
The findings largely confirmed a high-profile 2016 ruling by a state appeals court that found prosecutors in the Seal Beach case engaged in “intentional or negligent participation in a covert [informant] program to obtain statements from represented defendants in violation of their constitutional rights, and to withhold that information from those defendants in violation of their constitutional and statutory rights.”
“This guy is a real politician. He’s trying to walk on both sides of the fence, and he’s getting caught,” Wilson said of Spitzer.
“I’m a victim of the largest mass murder in Orange County history. And this guy took me and used me, and then has the guts to get up with these two guys that put my life through so much hell, and to say these things about them – I mean, I’m just disgusted,” he added.
“I’m really hurt by it, because…the guy used my late wife’s name so many times. He would say to me, ‘Paul we’re gonna fight this, we’re gonna fix this, we’re gonna fix it for Christy.’”
“And for him to betray me, using her name…Todd really needs to look in the mirror and look at himself,” Wilson added. “It’s sickening.”
Edds, Spitzer’s spokeswoman, said when Spitzer said the DA’s office let the two prosecutors down, he was saying the prior administration should have defended them if it truly thought they didn’t do anything wrong.
“They’re not at odds, because one of the criticisms District Attorney Spitzer had of the prior administration, is that if Mr. Simmons and Mr. Wagner didn’t do anything wrong, as the prior district attorney said, then the office had an absolute duty to defend them, and it didn’t do that. So that’s what he was referring to,” Edds said.
The Spitzer-commissioned investigation last week found the prosecutors had “trampled defendant rights” and denied justice for victims.
“This investigation finds that there is clear and convincing evidence that to a reasonable certainty that indicates Dekraai prosecutors committed malpractice due to intentional negligence,” the Spitzer-commissioned report states, referring to the Seal Beach case.
“This finding necessitates the imposition of severe disciplinary action against the prosecutors. However, before the completion of this internal investigation, both Dekraai prosecutors resigned their employment with OCDA and are now outside the administrative purview of OCDA,” it adds.
“The prosecutorial team whose responsibility it is to ensure fidelity to the law, ethical conduct in prosecutions, maintenance of defendant rights, and pursuit of justice for victims, were the very ones who violated informant/discovery law, obfuscated and failed to accept responsibility for their lapses, trampled defendant rights, and denied the full imposition of justice for victims and their families.”
Nick Gerda covers county government for Voice of OC. You can contact him at firstname.lastname@example.org.