New details are emerging about prosecutors’ concerns that DA Todd Spitzer compromised a mass shooting case by having a problematic conversation with a witness and then making misleading statements to a DA investigator that omitted important information about it from the defense.
At least three prosecutors raised alarm bells about Spitzer’s conduct, according to an internal DA investigator report obtained by Voice of OC.
Spitzer denies the allegations, saying his conversation with a grieving father was an innocent one, attacking back at the accusations against him as an effort by former prosecutor Tracy Miller to extract more money from a legal claim she filed against the County of Orange over the incident.
The newly revealed DA document states Spitzer’s conduct sparked concern not just from Miller, but from two other senior prosecutors at the time: Ebrahim Baytieh and Tammy Spurgeon.
The DA investigator’s report cites testimony that Spitzer drew alarm from fellow prosecutors when he informed them at a Nov. 15 meeting that he had talked with a victim of last year’s mass shooting in Orange about that case and a separate open case where that victim was a defendant.
The DA then told Miller to look into the criminal case against the witness – Rafael Farias – “since based on the information he received from Farias, this did not sound like a good case for our office,” according to the report, citing testimony from Miller.
Spitzer was then interrupted by one of the senior prosecutors in the room, according to the investigation report by DA Investigator Kenneth Schiffner.
Senior Assistant DA Ebrahim Baytieh “told him that he (Spitzer) spoke with a witness of a special circumstances homicide without an investigator present, who is also a defendant in one of our open criminal cases, and represented by counsel without counsel present,” the report states.
When confronted by Baytieh, Spitzer then contended he hadn’t known Farias was a defendant in the other case, but was then reminded by the DA’s spokeswoman and another prosecutor about two previous occasions where they say they had informed Spitzer about that, according to the report.
Spitzer agreed with Baytieh that he now needed to be interviewed by a DA investigator to document his conversion with Farias because it has to be disclosed to the defense, according to the investigator’s report.
But Spitzer then created another problem in his interview two weeks later, according to testimony cited in the report.
Prosecutors Tammy Spurgeon and Tracy Miller concluded that in his Nov. 30 interview, Spitzer had left out crucial information about his call with Farias that he had needed to be truthful about, the investigator’s report states.
“Compared with what [Spitzer] said in the executive meeting, [his later interview] lacked detail and context and was misleading,” states the investigator report, summarizing the two prosecutors’ conclusion.
Spurgeon and Miller had reviewed Spitzer’s interview about the call, and compared it with what Miller heard firsthand from Spitzer at the Nov. 15 meeting, according to the report.
Spurgeon wasn’t at that meeting, though Miller had told her later that evening what Spitzer had said, according to the investigator’s report.
Miller later filed a legal claim saying Spitzer’s actions put the mass shooting case at risk – by talking to a victim without his attorney present, “discussing favorable treatment” with the witness in a separate case against him, and “seeking to withhold the true facts of that contact” by making “materially false” statements about it when interviewed about it internally.
[Click here to read the DA investigator’s report about Spitzer’s alleged conduct.]
In a statement to Voice of OC, Spitzer said his actions were completely appropriate and that he immediately ended the conversation once Farias mentioned he was being prosecuted.
“I am a victim advocate and I talk to victims all of the time throughout the course of my duties as District Attorney,” Spitzer said in the statement.
“This was an innocent and completely understandable interaction with a grieving father who unbeknownst to me also happened to be a charged defendant in a separate case,” he continued.
“As soon I was made aware of his pending criminal charges, I terminated the conversation and said I could only talk to his attorney going forward.”
As for his Nov. 30 interview, Spitzer says he didn’t get into detail about the call because the investigator only asked an open-ended question, didn’t ask any follow-ups and didn’t re-interview him.
“My belief in memorializing this conversation with Investigator McCarthy was simply to have a record to produce to defense counsel in the Gaxiola and Farias’ criminal case that I had spoken to Farias and would no longer speak to him any further,” Spitzer wrote in a Jan. 31 memo responding to the investigator’s report.
[Click here to read Spitzer’s full memo, which is the last five pages of the document.]
Spitzer’s office has so far declined to release raw documents of what he said and did not say in that interview.
His office has not responded to a week-old Voice of OC public records request for Spitzer’s interview about the call and notes about what he said about it at the meeting two weeks earlier.
Spitzer says Investigator Schiffner’s report about his conduct is false.
“This report is completely misleading, lacks necessary context, and draws inferences which are not based on facts,” Spitzer wrote in his memo.
“It is abundantly clear from my reading of Investigator Schiffner’s report that Ms. Miller’s characterization of my conduct and how she describes the circumstances is biased, leading, fails to be objective, is agenda driven, and entirely inappropriate.”
Four people, including Farias’ 9 year-old son Matthew, were killed last March in the mass shooting at an office building in Orange.
It’s unclear how Spitzer’s alleged actions will affect that prosecution, if at all.
Spitzer’s reported actions are “extremely troubling on multiple levels,” says the defense attorney for the accused shooter.
“I intend to make fully informed decisions about whether or how to proceed in the near future, and I’m still waiting to receive a number of items that I’ve requested through the formal discovery process,” said Assistant Public Defender Ken Morrison, declining to comment further.
Spitzer’s spokeswoman says these issues have no impact on the case.
“This has no bearing on [the] Gaxiola case,” DA spokeswoman Kimberly Edds said in a text message to Voice of OC about Spitzer’s alleged actions, adding that Rafael Farias isn’t a witness because he wasn’t present at the shooting.
“He’s not a witness[,] he’s a victim,” Edds added.
State Bar rules prohibit attorneys from discussing their cases with someone they know is represented by another lawyer in that matter without the other lawyer’s consent.
In his statement to Voice of OC, Spitzer said he immediately stopped talking with Farias about the case once he knew it was an active prosecution.
Yet the internal DA report indicates Spitzer himself told colleagues Farias spoke in detail with him about his open criminal case during their call.
At his Nov. 15 meeting with DA executives, Spitzer said his conversion with Farias “was initially limited to the homicide case, but Farias eventually began talking about his open criminal case,” according to the DA investigator report, citing testimony from Miller.
“He explained to Spitzer why it was okay for him to transfer [the alleged victim’s] vehicle into his name, and that he was not guilty,” the report adds.
“He also mentioned something about a restraining order violation to Spitzer, and said he was not guilty of that crime either,” while speaking “negatively” about his alleged victim’s relationship with her children.
Spitzer told his fellow executives “Farias was very emotional during this conversation and he felt sorry for him,” the report states.
The revelations come amid concerns from DA prosecutors that Spitzer has compromised several of their criminal cases by inserting himself and engaging in improper conduct.
Spitzer rejects those allegations, saying they’re false and motivated by personal agendas of former prosecutors Miller and Baytieh.
Two of Spitzer opponents in the June election say these disclosures show there’s common threads to how Spitzer’s been behaving atop the local criminal justice system.
“He seems totally oblivious to the basic rules and ethics of being a prosecutor,” said Mike Jacobs, a former DA prosecutor who’s running for Spitzer’s seat.
“When he commits an error or obvious mistake, such as talking to a witness in a potentially capital case who is also a defendant in an auto theft case or injecting what could be viewed as racial bias into another potential capital case, he always gaslights and blames someone else or a conspiracy against him of his own attorneys,” Jacobs added, echoing concerns raised by current DA prosecutors in a letter to Spitzer last month.
“He never faces the allegations head on or admits to making a mistake.”
Asked for a response, Spitzer attacked Jacobs as unethical.
“Mike Jacobs’ idea of being a prosecutor is using jailhouse snitches to violate the constitutional rights of defendants. I was elected to rid the Orange County DA’s Office of that mentality and clean house of unethical prosecutors. I’ve done that,” Spitzer said in a statement provided by his campaign.
“Unfortunately Jacobs and his cronies want nothing more than to go back to the days of snitches and win at all costs. I refuse to let that happen.”
Jacobs responded that he “was never found to have committed any kind of misconduct” in the two cases he prosecuted that had informants – and questioned why Spitzer kept Baytieh on as a senior prosecutor despite being mixed up in the Seal Beach mass shooting informants scandal.
“Knowing this, Spitzer made him his right hand man until he recently fired him. When Spitzer is cornered he lies and fabricates,” Jacobs said in a text message.
DA candidate Bryan Chehock said Spitzer’s “problematic conduct” includes the letter he wrote to a judge about racially charged remarks Spitzer made while deciding whether to pursue the death penalty against a Black defendant, Jamon Rayon Buggs.
Former DA homicide prosecutor Matt Murphy also “filed additional paperwork with the court that certainly seems to suggest that his filing in the Buggs case was not complete, if not outright dishonest,” said Chehock, a federal attorney at the Drug Enforcement Administration who emphasized he was not speaking on behalf of his employer.
“Anybody can make a mistake, but at the end of the day you really want to make sure that – particularly in [the DA’s Office] – that there’s no question about your credibility,” he added.
“These are obviously not off-the-cuff things that are said. If you’re filing something with the court, you have to make sure they’re correct,” Chehock said.
Spitzer did not provide a response to Chehock’s comments.
The only other DA candidate – Democrat Peter Hardin – did not respond to a request for comment.
Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.