District Attorney Todd Spitzer is facing explosive allegations from his own staff that he improperly made racial remarks when he and other prosecutors were deciding whether to seek the death penalty against a Black defendant – and then kicked everyone from the meeting off the case after they noted a legal obligation to disclose Spitzer’s remarks to the defense, according to internal DA memos obtained by Voice of OC.
Following news reports Wednesday about the documents, and calls from the county Democratic Party and his opponent to resign over the issue, Spitzer released his own four-page memo offering his opinion on the case.
[Click here to read Spitzer’s memo.]
In his memo, Spitzer acknowledged that at the Oct. 1 death penalty meeting, he asked prosecutors about the race of the defendants’ former girlfriends and said he had “seen Black men date White women in certain circles in order to have others around them be more accepting.”
But Spitzer contends that was entirely appropriate for him to bring that up when discussing whether to seek the death penalty, because he “simply was exploring [the defendant’s] ability to identify, properly or not, the race of the female victim in that moment before he executed two victims.”
Yet his comments were apparently not seen as appropriate by other prosecutors in the room, at least one of whom wrote a memo that has now been obtained by media outlets.
In a Dec. 3 memo, high-ranking prosecutor Ebrahim Baytieh – whom Spitzer fired last week – said the DA was called out by himself and the lead prosecutor on the case when Spitzer brought up race at the death penalty decision meeting two months earlier.
When discussing the defendant’s prior domestic violence history, according to Baytieh’s memo, Spitzer asked about the past victims’ race and made a generalization about Black men, before being challenged by prosecutors who later said those kinds of remarks had to be disclosed to defense attorneys under a new state law.
“I stated that the race of the victims is completely irrelevant and it will be inappropriate for the OCDA to consider or give any weight to the race of the victims,” Baytieh wrote in his memo.
But Spitzer allegedly saw it differently.
“DA Spitzer stated that he disagreed and he knows many black people who get themselves out of their bad circumstances and bad situations by only dating ‘white women,’ ” Baytieh wrote.
Baytieh – who oversaw special prosecutions at the DA’s office as a senior assistant DA – then pushed back again, according to his memo.
“I then specifically stated that we should not under any circumstances give any weight or even discuss the race of the victims when we are deciding about the appropriate punishment to seek because, among other legal and ethical reasons, doing so implicates the recently signed Racial Justice Act (AB 2542),” Baytieh wrote.
The DA responded with an alleged story about a Black man he once knew, according to the memo.
“DA Spitzer then stated that while he was a student in college, he knew as a matter of fact that one of his fellow black students who lived in the same location as DA Spitzer only dated ‘white women,’ and that DA Spitzer knew for sure that this black student did so on purpose to get himself out of his bad circumstances and situations.”
Later in December, Baytieh wrote that the DA’s office has a legal obligation to turn his memo about the meeting over to a judge to decide whether it has to be disclosed to the defense, under a law that requires prosecutors to turn over any evidence of possible racial bias in the handling of a case.
“In my opinion and in my legal judgment, the most prudent course of action, and the right thing to do, is for our office to discover to the defense attorneys the attached memo documenting the discussion in question,” Baytieh wrote in a Dec. 22 memo to Spitzer and Spitzer’s top deputy, Shawn Nelson.
Baytieh said he was guided by a Supreme Court ruling: “The prudent prosecutor will resolve doubtful questions in favor of disclosure.”
“By doing so, our office will be in full compliance with our discovery obligations under the Racial Justice Act as well as other statutory and constitutional mandates.”
Baytieh wrote that the prosecutor assigned to the case – as well as that prosecutor’s supervisor – agreed with his analysis.
A few weeks later, Spitzer pulled Baytieh and the other prosecutors who heard his alleged racial remarks off the case, assigned it to a new prosecutor, said he was not going to seek the death penalty and ordered those who were at the Oct. 1 meeting to not to discuss the case with the new prosecutor.
Those who were at the meeting – known as the Special Circumstances Committee – “are recused and walled off from any involvement in People V. Buggs,” Spitzer wrote in a Jan. 26 memo reviewed by Voice of OC.
Spitzer announced he would not seek the death penalty, allegedly without telling the victims’ families as required by Marsy’s Law, a victims’ rights law Spitzer has been a high-profile champion of.
The DA disputed Baytieh’s characterization of his race remarks, saying Baytieh’s allegations were nothing more than “an act of pure desperation by a prosecutor who knew” he was being investigated for misconduct in a separate case, and “was willing to do anything to protect himself, even fabricating facts to embarrass the District Attorney.”
Spitzer said no one – including Baytieh – raised concerns about his Oct. 1 comments until months later.
Spitzer also provided Voice of OC a portion of an email chain (LINK), in which Baytieh apparently wrote on Jan 21 he was following up on a conversation with Spitzer the day before about his memo describing Spitzer’s race-related comments at the death penalty meeting.
Baytieh wrote that the memo would “continue to be accurate” if it says Spitzer declared that “he knows many black people who enhance their status by only dating ‘white women.’ ”
That would be a change from the original memo, which said Spitzer said “he knows many black people who get themselves out of their bad circumstances and bad situations by only dating ‘white women.’ ”
Baytieh wrote his email to Spitzer, the DA’s top deputy Shawn Nelson and DA Special Counsel Pat Dixon, according to the document Spitzer provided.
[Click here for Baytieh’s email that Spitzer provided and here for a statement Spitzer issued Wednesday afternoon after this article was first published.]
Baytieh didn’t return a phone message seeking comment.
Buggs is accused of fatally shooting two people – Wendi Miller of Costa Mesa and Darren Partch of Newport Beach – in Partch’s Newport Beach apartment in 2019, and then showing up at an Irvine apartment with a gun while looking for someone connected to his ex-girlfriend.
Buggs’ ex-girlfriend had obtained a restraining order against him in the months before the murders, in which she alleged he broke into her home and made her fear for her life, according to records reviewed by the Los Angeles Times.
An attorney for Partch’s mother said she was never informed that the death penalty wasn’t being sought until after it showed up in public court records.
“She has told me that she received no word from the Orange County DA’s office prior to a decision on what sentence they would be seeking, death or life without the possibility of parole,” said Rick Welsh, who represents Darren Partch’s mother, Barbara Partch.
“She’s aware of the allegations in this memo about the statements attributed to Mr. Spitzer. And she is so angry and she is so saddened. And she believes that as a result of what has transpired, the man who killed her son has won,” he added.
Baytieh’s memos are now in front of a judge who’s deciding whether they have to be disclosed to the defendant’s attorneys under California’s new Racial Justice Act, which requires DAs to turn over all evidence relevant to whether prosecution decisions are being made based on race or ethnicity.
Judge Gregg L. Prickett could issue his decision any day.
Voice of OC first broke the story about the existence of the memo last week when Spitzer abruptly fired Baytieh.
The racism allegations are now impacting multiple separate campaigns in the June election.
Spitzer is running for a heated re-election as DA, while Baytieh seeks a competitive open judge seat.
Peter Hardin, a Democrat who’s challenging Spitzer in the DA race, as well as the county Democratic Party, called on Spitzer to resign over his racial statements during the death penalty deliberations.
“Todd Spitzer’s consideration of race while deciding whether or not California should execute a black man isn’t just appalling, it’s disqualifying,” Hardin said in a statement Wednesday after news broke about the memos.
“Our system of justice must be colorblind, and the chief law enforcement officer just showed himself to be anything but. Todd Spitzer’s racist remarks and dated thinking have infected cases across the office and cast a shadow over every prosecution involving a person of color.”
Meanwhile, Spitzer’s top deputy Nelson also is running for an open judge seat. He didn’t immediately return a message for comment.
The judge now deciding on disclosing the memos is not running for re-election, and one of the candidates running for his seat is Steve McGreevy, one of the prosecutors whom Spitzer says helped Baytieh with legal research about his comments at the death penalty meeting.
While Spitzer fired Baytieh on the heels of his memo, Spitzer has been painting a very different picture about why he fired the former high-ranking prosecutor.
In a statement last week to Voice of OC, Spitzer attributed Baytieh’s ouster to an investigation he commissioned into evidence that Baytieh improperly withheld evidence from defense attorneys in a more than decade-old case.
Last year, Judge Patrick Donohue tossed out a 2010 conviction of Paul Gentile Smith for a Sunset Beach murder after public defenders forced Spitzer to acknowledge that Baytieh had failed to turn over informant evidence that had to be legally disclosed to defense attorneys – the same allegation made by OC public defenders in previous years.
Last week, Spitzer told Voice of OC he took immediate action after those disclosures came out last August.
“I immediately hired an independent law firm to investigate whether there was a failure by the prosecutor to properly turn over discovery and whether the prosecutor was truthful in all subsequent and related inquiries by the United States Department of Justice,” Spitzer said last Wednesday.
“Yesterday, that independent investigation was completed,” he added.
“As a result of those findings, the prosecutor is no longer employed by the Orange County District Attorney’s Office.”
Nick Gerda covers county government for Voice of OC. You can contact him at firstname.lastname@example.org.
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