Orange County District Attorney Todd Spitzer, testifying Friday in a hearing on a motion to recuse his office from parole violation hearings for several sex offenders, said he did not mean to intimidate any judges when he criticized the release of the offenders amid the COVID-19 pandemic.
At issue is whether Spitzer’s criticisms of Superior Court Commissioner Joe Dane and his subsequent comments on social media and in news reports had a chilling effect on other judges in the county or whether it was the D.A.’s right to warn the community about sex offenders who had been granted lighter-than-usual sentences for violating terms of probation and were released to reduce the jail population during the pandemic.
Spitzer argued that the sex offenders should have been given automatic six-month sentences for not charging or removing their GPS monitors.
Orange County Public Defender Sharon Petrosino countered that many sex offenders are transients who often charge up their monitors in the offices of their attorneys and could not do that with offices closed during the shut-down orders.
Spitzer referred to the case against Steen Gordon and Frank Cano, who were both convicted sex offenders who allegedly removed their GPS monitors while on a murder spree that left four women in Orange County dead. Gordon has been sentenced to death, while Cano is awaiting trial.
“Public defender purposely forgets sex predators Cano and Gordon who cut GPS killed 4 women in OC! Woops Sharon?” Spitzer wrote on his Facebook page, according to court papers filed by defense attorneys seeking his recusal.
“Public Defender uses pandemic to jeopardize our public safety. This is your tax dollars at work,” Spitzer tweeted, according to the filing.
In testimony Friday at the Harbor Justice Center, Spitzer said, “It’s not hyperbole,” under questioning from Senior Deputy District Attorney Matt Lockhart.
Spitzer also denied the attorneys’ accusation that he was attempting to intimidate the rest of the judges in Orange County with criticism of Dane.
“You did not mean to criticize the Public Defender’s Office?” Lockhart asked.
“I don’t agree with that,” Spitzer said.
“There’s no doubt I took great exception to Sharon Petrosino’s comments in the media” on his criticism of Dane, he said, adding, “I know they have a tough job to do.”
Assistant Public Defender Sara Ross, who filed the recusal motion against Spitzer’s office, said in a June 19 pleading that Spitzer has used one defendant’s “case as a lightning rod to foment anger, opprobrium and contempt for defendants, the Public Defender and the judiciary. His behavior far exceeded appropriate legal and ethical bounds.”
Ross further argued that while Spitzer does have the authority to warn the public about dangerous sex offenders released from custody, it does not mean he has “unfettered ability to make any comment that he wishes to make… By making his incendiary comments about the defendants, the Public Defender’s Office and the judiciary, Mr. Spitzer has instigated public scorn against defendant, his counsel and the judiciary, thus producing a conflict of interest that necessitates the recusal of his office.”
Lockhart argued in a motion filed Thursday that Ross cannot meet the burden of an evidentiary hearing on the recusal motion.
“In other words, an evidentiary hearing is not warranted when a defendant merely shows `the appearance of a conflict,’ ” Lockhart wrote. “It is not a fishing expedition for defendant to somehow Hail Mary his way to recusal.”
Lockhart rejected the notion that Spitzer’s criticism has created a conflict of interest “so grave that (the defendant) is not likely to be treated fairly in his upcoming parole revocation process. What defendant’s allegations prove, if anything, is that the DA wants the court to follow the law as enacted by the legislature and that, as a matter of policy, the mandatory sentence of 180 days in custody for a parole violation as serious as disabling the device used to keep track of high-risk sex offenders is the appropriate disposition. Full stop.”
Lockhart also dismissed the argument that other judges would be intimidated by Spitzer’s criticism of Dane.
“Finally, defendant’s wild assertion that the judges of Orange County live in fear of the DA is based on rank speculation,” Lockhart wrote. “Moreover, he insults the bench by so claiming. Simply put, defendant states that all of the judges in Orange County are of such weak character that they will surrender all judicial impartiality and hand down evidentiary rulings and sentences they know are not correct or fair, all out of fear of retaliation by the DA.
“If that is the case, then why stop with defendant? Shouldn’t the OCDA be recused from every criminal case in perpetuity given the DA’s prodigious ability to terrorize and paralyze the bench? If defendant’s unfounded accusations are reason to recuse the OCDA in this case, the OCDA cannot prosecute any case.”
Another hearing is scheduled for Tuesday at the Harbor Justice Center.
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