O.C.’s Capizzi Takes Hit From Busts-Gone-Bad

With 269,104 votes against no opponent in the June primary, Dist. Atty. Michael R. Capizzi commanded more support than any other Orange County officeholder, while some prosecutors elsewhere in California were either losing their offices or barely holding onto them.

As he endorsed “three-strikes” legislation and issued tough-on-crime statements during press conferences called to announce arrests in high-profile cases, Capizzi has looked the part of the invincible lawman in a society growing ever more fearful of crime.

But in the past 10 days, Capizzi’s office has suffered the biggest public embarrassments of his five-year reign--prosecutorial missteps that many say were inevitable for an office so intent on cultivating a crime-busting image that its staff sometimes cuts corners.

A week ago Friday, amid much public fanfare, his office charged an arson suspect with setting the most devastating fire in county history, only to drop the charges five days later when the Mexico-born “transient” turned out to have family in Fullerton who provided him an ironclad alibi. The family claimed, and red-faced prosecutors subsequently confirmed, that the man was serving time in a Mexican prison at the time of the Oct. 27, 1993, Laguna Beach firestorm.

The same day those charges were dropped, a deputy district attorney agreed to release another man from custody whose arrest was among those announced at yet another press conference--one called to trumpet the crackdown on Santa Ana’s 6th Street gang and the arrest of more than 100 alleged drug-dealing gangsters. This time, the arrested gangster turned out to have been in a Texas prison at the time he was supposedly selling drugs to an undercover agent in Orange County.

And just two days ago came news that two more of those arrested during the Santa Ana crackdown may have been wrongly accused. One was apparently in a California prison at the time he was accused of dealing drugs in Santa Ana.

With three high-profile cases coming unraveled in the same number of days, Capizzi and his top administrators say they are reviewing the rest of the 100-plus arrests in the gang sweep. Though they do not like to file charges that later have to be dropped, officials from the district attorney’s office say they don’t hesitate to do the right thing when mistakes are brought to their attention.

“Unfortunately, on occasion, someone will be charged with a crime and, later, evidence will show they did not commit that crime,” said Maurice Evans, chief assistant district attorney. “This is an office that has high integrity. And we are willing to stand up if we make a mistake. On these cases where someone has an alibi, we will stand up and be counted and take responsibility.”

Capizzi’s office has suffered other public relations setbacks in the past year, not only for what it has done, but once for what it didn’t.

In the mutilation slaying last May of 23-year-old Leanora Annette Wong--another highly publicized case--it was revealed that Capizzi’s office decided not to prosecute Wong’s accused killer in 1993, when he was accused of rape for a fourth time.

Instead of aggressively prosecuting the fourth rape charge, which could have landed him in prison for 12 years, Orange County prosecutors elected instead to let him be returned to prison for no more than 12 months as a parole violator.

Prosecutors said that the rape case had too many holes to charge the suspect, Edward Patrick Morgan.

Shortly after his release, prosecutors now charge that Morgan sexually mutilated the 23-year-old Huntington Beach woman and strangled her.

In February, a state appeals court threw out the hard-won assault conviction of Dr. Thomas A. Gionis, the estranged husband of actor John Wayne’s daughter. The reversal was based in part on prosecutor misconduct, and Capizzi’s office is appealing the decision, which overturned the outcome of a lengthy second jury trial, the first one ending in a mistrial.

And in the tragic Christmas Day shooting last year of one sheriff’s deputy by another, some community leaders questioned the impartiality of Capizzi’s office in handling the case while others criticized him for taking the case before the county grand jury, which chose not to issue an indictment.

In that case, prosecutors say they recommended that charges be filed, but the grand jury refused. One retired deputy district attorney suggested that Capizzi’s office “was able to have its cake and eat it too” by passing the blame for a controversial non-prosecution to a grand jury, whose deliberations are forever kept secret when no charges result. District attorney’s officials said they made the right call by taking the case to the grand jury, even though they could have simply filed the charges directly, as they do 99% of the time.

“I wouldn’t say it’s been a particularly good year for him,” Public Defender Ronald Y. Butler said.

In both the Laguna arson case and that of the gang sweep--dubbed Operation Roundup--Capizzi stood before television cameras and made bold pronouncements about their import and impact.

Jose Soto Martinez, the accused Laguna arsonist, “willfully and maliciously” set the fire, Capizzi said, adding that there was no doubt that he was the man responsible for the disastrous firestorm.

In the gang sweep press conference, at which Capizzi was flanked by Gov. Pete Wilson--the candidate he has endorsed for reelection--the district attorney said that the 6th Street gang, believed responsible for much of the crime in the targeted area, had been “busted in every sense of the word.”

Here, too, there was praise for clever and dedicated police work against suspected criminals portrayed as both brazen and inept. But recent revelations that several had solid alibis and could not have been where police said they were has cast doubt on the thoroughness of the investigation.

“This type of thing (dropping charges) happens quite a bit, but most of the time they get dropped quietly in a Municipal Court someplace, and they don’t create publicity. Nobody hears about them,” Butler said. “It just happens that these are some highly visible situations.”

Butler said the “reality” of Operation Roundup “pales in comparison to the hype at the press conference. I’m against drugs, but comparing the severity of the (crimes alleged) to the impact on the general drug caseload, it makes no substantial difference.”

Successful prosecution of criminal charges is largely dependent on good police work, and in the short-lived case against the Laguna arson suspect, the Fullerton Police Department acknowledges that it bungled one part of the investigation.

Martinez was arrested on charges of setting three small fires in that city, and a procedural failure by Fullerton police prevented investigators for establishing his true identity, which would have provided his alibi before he was wrongfully charged in the Laguna case.

Martinez’s mother filed a missing-persons report at the Fullerton department while he was still in the department’s lockup.

Had they entered the missing man’s name in the department’s computer, they would have discovered he was sitting in their jail.

But many believe that prosecutors--who must weigh the evidence in any case in order to prove the accused guilty beyond a reasonable doubt--must ensure that an investigation is as thorough as possible before filing criminal charges.

“The average Joe out there wants the police to be as aggressive as possible. But the D.A. is the filter, the gatekeeper who guards against weak evidence,” said Jennifer Keller, an Orange County defense attorney. “You don’t want your D.A. to be a rubber stamp for the police.”

But Capizzi and other district attorneys who must stand for reelection every four years worry that not being viewed as totally tough on crime essentially means giving opponents an easy target in the next contest, some say.

“Law enforcement is so driven by politics these days, and politicians have seized upon crime as a way to exploit the public’s fear that there are murders and rapes on every street corner,” Keller said. “I don’t like Mike Capizzi and he is the opposite of everything I stand for. But I think he is being affected by forces greater than himself, just like every other D.A.”

Prosecutors, she said, worry they will be criticized for not filing the toughest possible charge on a suspect or seeking the harshest punishment, which could make them vulnerable in the eyes of political opponents and the media.

“Instead of re-examining their policies over there, they are asking, ‘How does it look in the media, and what will the political fallout be?’ ” Keller said.

Capizzi was unavailable for comment Saturday, but Evans, his second-in-command, said his boss runs the office in much the same hard-charging way Capizzi’s predecessors have operated it for decades.

“We have an awful lot more work now, but we continue to be responsible to the taxpayers,” Evans said. “There is no question that citizens are concerned about crime, and we will be aggressive with everyone, no matter their standing in society, rich or poor.”

But others believe it is easy for Capizzi to prosecute individuals like Jose Martinez, a mentally unstable supposed transient who talks of demons, or the barrio residents busted in Operation Roundup. They see his office as less aggressive when it comes to prosecuting political corruption or white-collar criminals, who often have friends in high places.

“What is interesting about our D.A. is is what he decides to go after and what he doesn’t decide to go after,” said Mark P. Petracca, an associate professor of social science at UC Irvine. “In essence, it is easier to take on those people who can’t fight back. I would rather that he take some risks, now that he’s been reelected, but I don’t see him doing that.”

In calling press conferences to announce gang busts and the arrest of arson suspects, Petracca said, Capizzi cannot lose with the public, despite the occasional embarrassment of having to drop charges.

“Being overzealous in this climate buys you nothing but sympathy,” Petracca said. “People are whipped into hysteria over crime even though the indicators are that crime is going down. So what if he has to release a few suspects? He can always say, ‘Who can fault me for being overzealous when it’s all for the protection of our citizens?’ ”

For Evans and others in Capizzi’s office, however, the bottom line has always been overall performance.

“We are trying more jury trials in the office than ever before. Our conviction rate is high, and the overall crime rate is down,” Evans said. “I think that in any large organization, you strive to improve. We can always do better. But overall, I feel very good about what’s been going on here.”