Orange County District Attorney Todd Spitzer Wednesday accused an attorney with the Orange County Public Defender’s Office of directing his client to hum in court to sabotage a prosecutor’s attempt to give the accused drug dealer an advisement that could leave the defendant vulnerable to a murder charge if he’s involved in a drug deal that leads to a death.

Spitzer has directed his prosecutors to begin giving advisements to convicted drug dealers that they face a murder charge if they’re convicted again in a deadly drug deal.

It is similar to the advisement that is known in court as a Watson Waiver that is given to convicted drunken or intoxicated drivers who face an upgrade in charges from manslaughter to murder if they’re involved in a deadly DUI. The difference in punishment is a set time in prison versus a life sentence.

Spitzer has touted it as a way to crack down on drug deals involving opioid overdoses which authorities say is on the rise. A Watson Waiver is given by a judge because it is set in state law, but when Spitzer and others pushed for the same for drug dealers the bill stalled in committee in Sacramento.

Spitzer released a statement saying the defendant was shackled as he pled guilty to possession for sale of fentanyl and methamphetamine last month, so he couldn’t put his “fingers in his ears” during the advisement.

“So his lawyer — an Orange County deputy public defender — told the drug dealer to start humming,” Spitzer said. “He had been instructed to keep humming until his lawyer gave him the signal to stop. The deputy public defender didn’t want him to hear what the Orange County District Attorney’s Office had to say. And what my prosecutor had to say could put him on the hook for murder.”

Spitzer said fentanyl-related deaths have soared more than 1,000% over the last five years.

Orange County Public Defender Martin Schwarz told City News Service that his attorneys are “vigorously pushing back against the district attorney’s illegal advisement in these drug cases.”

Schwarz said he had no information about the particular incident Spitzer cited.

Schwarz said the state Supreme Court “has repeatedly said the act of giving drugs to another person that leads to an accidental overdose cannot be charged as murder.”

Spitzer, he noted, tried to change the law and failed.

“Now the district attorney can’t take it upon himself and tell an individual they will be charged with murder when the law says otherwise,” Schwarz said. “And judges shouldn’t allow others to subvert the law in that way.”

The advisement given prosecutors to the drug peddlers is “an affirmative misadvisement of people coming through the system,” Schwarz said.

The defense attorneys are “doing what they get paid to do — zealously advocate for their clients and push back against prosecutorial overreach,” Schwarz said.

Spitzer has argued that he has the discretion to charge the convicted drug dealers who receive the admonishment with murder.

“My prosecutors now give an advisement to anyone who agrees to plead guilty to a wide variety of drug-related offenses, including drug sales, possession for sale, and manufacturing and distributing of any controlled substance that if someone dies as a result of their future drug-related activities they can be charged with murder,” Spitzer said.

“Every law enforcement agency in Orange County has agreed to provide the warning at the time of arrest so it can be used in court later. And when a defendant is convicted or accepts a court offer, we ask the judge to give the admonishment so it is part of the official court record. Some judges do. Some judges refuse.”

Spitzer argued the rash of drug-related deaths are “not overdoses. These dealers are essentially handing a loaded gun to unsuspecting victims knowing that they will probably die, and they don’t care.”

In the case of the humming defendant, Spitzer said the judge admonished him that it was inappropriate and let him withdraw his guilty plea.

“You can hum all you want, but it doesn’t change the fact that drug dealers are killing people by selling them fentanyl and at some point they will face the music,” Spitzer said.

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