San Diego

A Municipal Court judge Tuesday denied a defense attorney’s motion to disqualify the district attorney’s office from prosecuting David A. Lucas on three of the six murder charges he faces.

Judge Herbert Exarhos rejected arguments by attorney William Saunders that the district attorney’s office acted maliciously in accusing Lucas of the 1979 murders of Suzanne Jacobs, 31, her son, Colin, 3, and the 1981 slaying of Gayle Roberta Garcia, 29.

Johnny Massingale, an illiterate drifter from Kentucky, had been charged with the Jacobs murders and spent 10 months in County Jail awaiting trial. Massingale had confessed to the killings, but investigators from the San Diego Police Department and the district attorney’s office later linked Lucas to the slayings, allowing Massingale to be freed.

On Tuesday, Saunders argued that the district attorney acted too quickly in dropping the charges against Massingale and suggested that investigators botched up the investigation. Once the investigators realized that they had erred, said Saunders, they decided to charge Lucas with the killings.

“They (prosecutors) put themselves in a position where they have to prosecute Lucas to vindicate their action” said Saunders. “. . . the dismissal occurred too early.”

Saunders questioned former Deputy Dist. Atty. Bernard Revak about the decision to dismiss the murder charges against Massingale. Before retiring earlier this year, Revak had been assigned to prosecute Massingale for the Jacobs murders.

“I was of the opinion that he (Massingale) did not commit the crime. I’d come to the conclusion that I could not convince 12 people beyond a reasonable doubt the he had done it. . . . Mr. Lucas was in custody at the time for other similar homicides,” said Revak.

In denying Saunders’ motion to disqualify the district attorney’s office from prosecuting Lucas in the three killings, Exarhos said that the defense attorney had failed to prove prosecutorial misconduct.

Exarhos ordered Lucas to return on June 24 for a preliminary hearing in the killings of Suzanne and Colin Jacobs, and Garcia.

Lucas is already set for trial on Oct. 1 in the 1984 deaths of Anne Swanke, 22, of San Carlos, and Rhonda Strang, 24, and Amber Fisher, 3, both of Lakeside.