Judge Requests Explanation of Stanton Count

A Superior Court judge Friday asked for a written explanation of how Dist. Atty. Michael R. Capizzi decided to seek charges against Supervisor Roger R. Stanton, and referred to a criminal code provision that permits certain charges to be dropped “in the furtherance of justice.”

The unusual request came after attorneys for the three officials made their final arguments in a hearing to have Capizzi removed as prosecutor because, they contend, he had a conflict of interest in charging them.

Noting that a September trial date on willful misconduct charges has been set for Stanton, Supervisor William G. Steiner and Auditor Steve E. Lewis, Judge John W. Ouderkirk said that even if Stanton were to be convicted in October, “the worst that could happen” is that he would be removed from office only “three months before he’d be out of office anyway.”

The judge said he “was curious” about how Capizzi had exercised his prosecutorial discretion in deciding to go after Stanton, who leaves office at the end of this year, when the only penalty for willful misconduct in office is removal from that office.

Ouderkirk, a visiting Los Angeles judge who was appointed to hear the case after Presiding Superior Court Judge Theodore E. Millard disqualified all Orange County judges from hearing the cases earlier this year, asked Assistant Dist. Atty. Brent Romney to provide a two-page explanation by 10 a.m. next Friday, when Ouderkirk said he would rule on the recusal motion.

Ouderkirk noted that throughout the lengthy hearing there had been “oblique references” to how much it was costing county taxpayers, both to prosecute and to pay for the defense of the officials--more than $2 million by some accounts.

In asking for the explanation, Ouderkirk noted that he could better understand a decision to prosecute Stanton “if he had been accused of bribery” or some other “underlying crime” that would justify expending “all these resources.”

Because the terms of Steiner and Lewis continue past this year, Ouderkirk said, “I can see reasons as to the other two defendants.”

After the hearing, Allan H. Stokke, who represents Steiner, called Ouderkirk “very perceptive.”

Stokke continued, “He seems to be saying that all of the signs point toward a dismissal of the the case because it seems pointless. He wanted to know if the district attorney had a good reason to prosecute, and it was very perceptive on his part to ask that.”

Ouderkirk’s request was a practical one, Romney said after the hearing. “He’s a very practical judge and he asked a very practical question, one that we have been aware of since the accusations came down in December,” Romney said.

“That’s why at the very first hearing in January we announced we were ready to get it over with,” Romney said, adding that defense attorneys were responsible for the delays in going to trial. “It has the been [the] defense’s motion to [postpone] each and every time.”

Defense attorneys opened the day’s legal jousting by revealing that three days after the county filed for bankruptcy in December 1994, large raises for three of Capizzi’s top deputies were postponed.

Two of the deputies concerned, Jan Nolan and Wallace J. Wade, are directly involved in prosecuting the cases against the three officials. They, and Romney, were set to receive “equity adjustments” that would have raised their salaries to $116,688 a year from $102,294 for Wade, and $99,944 for Nolan and Romney.

Being denied those raises, Stokke argued, which so far have amounted to about $25,000 to Nolan and $21,000 to Wade, may have affected the judgment of these top Capizzi deputies, because “they personally lost money they would have had in their pockets.”

After the hearing, Stokke said, “Those are big and very direct hits taken by the people heading up the [D.A.’s] team, and it’s something that was undisclosed until [Thursday] night.”

Those and other bankruptcy “impacts” on the district attorney’s office, Stokke argued, motivated Capizzi to seek the charges.

In rebuttal, Romney and Gary W. Schons, a senior assistant attorney general, said the defense had failed to prove that Capizzi had a conflict of interest “so grave” that the officials would not receive a fair trial.

Schons, whose office would have to prosecute the case if Capizzi is removed, told the court that the attorney general’s presence at the hearing was “implicit recognition that the attorney general agrees no conflict exists that requires recusal.”

Removing a prosecutor, Schons argued, “is a drastic remedy” that “deprives the people of the county of their elected prosecutor.”

* CITRON SENTENCING DELAYED AGAIN

Judge doesn’t want to interfere with upcoming trial of ex-Budget Director Ronald S. Rubino. B5