County Leaders Spar Over Watchdog Powers

By PAUL ANDERSON

Orange County Public Defender Frank Ospino raised concerns Monday to an ad-hoc committee exploring an expansion of a watchdog department for the Orange County sheriff to include Ospino’s office, among many others.

Ospino said the right of attorney-client privilege to keep some evidence confidential in criminal cases would make it impossible for a beefed-up Office of Independent Review to investigate claims of misconduct against the county’s defense attorneys.

Michael Gennaco, a principal of OIR Group, told the two-member committee that there would be ways to work around the attorney-client privilege, but he did acknowledge it would throw up some hurdles to expanding the county’s Office of Independent Review.

The committee -- consisting of Orange County Board of Supervisors Chairman Todd Spitzer and fellow Supervisor Andrew Do -- today accepted a “progress report” from Gennaco, who was hired in August for $40,000, to provide recommendations to the board.

Spitzer told City News Service that the watchdog agency would only be interested in reviewing major cases such as when a defendant sues the county for wrongful prosecution. Under that scenario the defendant would essentially waive attorney-client privilege with the lawsuit, Spitzer, a former prosecutor, said.

Gennaco laid out the pros and cons of various forms of oversight, including forming a panel of civilians, hiring an auditor or beefing up what the county already offers with the Office of Independent Review.

The committee was formed, and Gennaco was hired, because of the board’s dissatisfaction with the current Office of Independent Review, which was formed in February 2008 following the beating death of an inmate who was being held on suspicion of possession of child pornography.

Spitzer said today he is only finding out about misconduct cases in the sheriff’s department after a lawsuit has been filed or is imminent, not when the claim is made and an investigation begins.

“My goal in all of this is to move ... to greater transparency,” Spitzer said.

Ospino, however, told the committee that the board did not have the right to greater transparency in some cases, particularly if it involves allegations of misconduct among attorneys in his department.

“We need a level of independence,” Ospino said.

The county’s top defender also said any watchdog group could not explore a complaint of misconduct among his attorneys without digging into the facts of the individual cases, which would require a violation of the attorney-client privilege.

“Is this a matter of personnel or a matter of policy?” Ospino said of the committee’s work to revamp the OIR, referring to the board’s disenchantment with the current director of the agency, Stephen Connolly.

“The board has a way of resolving that issue without bringing in the Public Defender’s Office,” Ospino said.

Ospino added he is not aware of any spike in complaints about his attorneys. And if a defendant had a problem with an attorney, there’s a process already in place in which he or she can ask a judge to remove the lawyer from the case, Ospino said.

Gennaco noted that state law might prevent full disclosure of the results of investigations of some departmental complaints.

Spitzer credited the Public Defender’s Office for its legal maneuvering to uncover issues with several gang cases that led to plea deals that allowed at least a couple of murderers to walk free. In the highest-profile case against the worst mass killer in the county’s history, Scott Dekraai, the Orange County District Attorney’s Office was booted from the prosecution team, a ruling that is under appeal.

Dekraai’s attorney, Scott Sanders, is seeking the same legal remedies in the capital case against Daniel Wozniak, because he alleges an informant improperly questioned the double murder defendant. Prosecutors deny he was working for the government and have no interest in using the information and have denied any wrongdoing.

Do sounded concerns about a sort of mission creep for a newly revamped Office of Independent Review that would oversee complaints against the Probation, District Attorney, Public Defender, Social Services, Child Custody Services and Human Relations departments. Do was concerned about the agency investigating every complaint that is lodged against the county.

Spitzer said Orange County District Attorney Tony Rackauckas did not choose to participate in today’s meeting. Gennaco said he met with Rackauckas, who “was very gracious” and provided information that was “very insightful to me.”

Gennaco, however, said Rackauckas’ creation in July of an independent committee to evaluate the use of jailhouse informants “has already engendered some controversy and skepticism before the review body has even completed its work.”

The committee’s members are retired Orange County Superior Court Judge Jim Smith, retired Los Angeles County Assistant District Attorney Patrick Dixon, former Orange County Bar Association President Robert Gerard, ethics law specialist Blithe Leece and Loyola Law School professor Laurie Levenson.

Rackauckas’ chief of staff, Susan Kang Schroeder, said skeptics should wait until the group issues its report.

“They should wait for a report before making a judgment,” Schroeder told City News Service. “These are some of the leading members of our legal community.”

Schroeder said allowing the District Attorney’s Office to be investigated by a beefed-up Office of Independent Review poses issues with “separation of powers” that prohibits the Board of Supervisors from interfering with the offices of elected officials.

“This is more of the same power grab by Todd Spitzer, who wants to run the District Attorney’s Office and be the next DA,” Schroeder charged.

Spitzer countered that Rackauckas represents “the old-school mentality of how law enforcement in Orange County used to operate. I side with Sheriff (Sandra) Hutchens, who has brought openness, transparency, accountability and a welcome sign to law enforcement oversight. That is the future.”

The committee that Rackauckas formed “doesn’t appear to have any objectivity,” Spitzer said. “It is controlled by the District Attorney and he’s paying some of these members. Two of them are on his payroll.”

City News Service