This summer, a judge ruled Orange County DA Todd Spitzer violated a law against prosecutors showing racial bias – by making charged remarks to other prosecutors when deciding on pursuing the death penalty against a Black defendant.

He may be the first elected prosecutor in California to have been found in violation of the Racial Justice Act.

Now, he’s getting sued for withholding records that could show whether there’s racial disparities in how his office pursues cases.

The American Civil Liberties Union says Spitzer’s office has illegally refused to turn over basic public documents they requested under the California Public Records Act (PRA) – seeking data on prosecution actions, case outcomes, policies, practices, and training materials.

“By acting in this manner, OCDA has impermissibly insulated the office from public scrutiny and accountability, thereby thwarting the objectives of the California Constitution and the PRA, and obstructing the effectuation of the Racial Justice Act.

What’s more, the ACLU says Spitzer has reversed himself on transparency – and won’t disclose the data he did turn over just a few years ago.

“District Attorney [Spitzer] is now refusing to produce the exact same data that the OCDA previously produced in 2019,” the suit states.

[Click here to read the lawsuit and here for the exhibits: part 1, part 2.]

Spitzer’s office says they are in fact following the law, and that the ACLU is acting as part of a political agenda.

“This is nothing more than another frivolous lawsuit by the ACLU that is completely divorced from reality,” said DA spokeswoman Kimberly Edds in a statement.

“The ACLU’s one and only goal is [to] elect soft on crime district attorneys who will implement policies that endanger public safety and in fact harm the very communities of color they pretend to care about,” she added.

The ACLU is asking for a court order requiring the DA to turn over the records and to publish certain data publicly on the DA’s website.

Spitzer was found in violation of California’s prosecutor racial bias law in June, after a review by OC Superior Court Judge Gregg Prickett in a double-murder case against Jamon Buggs, who is Black.

According to an internal DA memo, Spitzer raised alarm bells among senior prosecutors at an October 2021 decision meeting on whether to pursue the death penalty.

Spitzer asked if the defendant had dated white women, adding “he knows many Black people who get themselves out of their bad circumstances and bad situations by only dating ‘white women.’ ”

The lead detective in the Buggs case has also taken issue with the DA’s handling of the case, writting a letter to the judge saying Spitzer ruined the death penalty case by making inappropriate racial remarks and then trying to cover it up.

Newport Beach Detective Court Depweg wrote to the judge that he had been told by multiple current and former DA officials that Spitzer “made an unsolicited, derogatory, and racist comment about Black men/persons” at the Oct. 1 meeting.

The Racial Justice Act, passed in 2020, allows defendants to show racial bias by prosecutors in several ways. One is by pointing to data showing a major disparity in seeking convictions or sentences between defendants accused of similar offenses, if prosecutors can’t point to a non-racial reason for the disparity.

But Spitzer’s office has been refusing to provide that kind of data to defense attorneys, according to the ACLU suit.

“OCDA has also refused requests from public defenders who have sought data necessary to pursue Racial Justice Act claims in criminal court on behalf of people facing criminal charges, whether that information was requested pursuant to the [Public Records Act] or the Racial Justice Act,” the suit states.

DA officials say they’ve been fully complying with the law.

“The ACLU’s requests that were denied were denied as a result of being either overly burdensome or records not in possession of the Orange County District Attorney’s Office as allowed under the law,” said Edds, Spitzer’s spokeswoman.

Taxpayers are on the hook for legal fees if the county settles or loses the case.

Just last year, the county settled an ACLU transparency case filed when Spitzer was on the county Board of Supervisors.

It cost taxpayers $275,000. Most of it – $200,000 – was for the county’s own attorney fees.

That settlement centered on Board of Supervisors policies that banned public commenters from mentioning elected supervisors’ names or questioning them without permission.

A judge had ruled the ACLU would likely win its argument that the ban violated the First Amendment – especially because evidence showed the ban was enforced against people critical of the supervisors but not those who were complimenting them.

That judge, Sheila B. Fell, also ruled in favor of the ACLU in finding the county was likely breaking the law with a policy allowing immediate destruction of public records.

That records destruction policy was approved in 2017 by all five county supervisors at the time, including Spitzer.

Now, the ACLU is challenging Spitzer’s public record policies as DA.

In a report earlier this year, the ACLU cited what it called a troubling lack of transparency by Spitzer about who his office is prosecuting.

When the ACLU requested data on criminal charges, Spitzer would only provide numbers from his predecessor Tony Rackauckas’ time in office, according to the ACLU.

That’s despite Spitzer promising to be more open than Rackauckas.

Faced with that roadblock when preparing a report earlier this year, the ACLU analyzed court case data Voice of OC obtained last year.

That data showed that the most-prosecuted crime in Orange County is possession of paraphernalia for using drugs, such as meth pipes.

“Although the current OCDA’s office refused to provide updated information for 2019 and 2020, the local news outlet Voice of OC received records from the OC Superior Court that include charging data from the first year and a half of his tenure,” the ACLU wrote in its report earlier this year.

Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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