All Evidence Indicates D.A. Should Get Off Rubino’s Case

One thing about Mike Capizzi, he’s tenacious. This is a prosecutor whose office once retried a man for murder even though the sole surviving witness said the defendant wasn’t at the murder scene and was being railroaded. In his third trial, after five years in jail, the man was acquitted.

That was murder. When it comes to government corruption, Capizzi can be just as dogged. His pugnacity goes beyond just his facial features. The guy is like a mutt with your best pair of slippers--sometimes he just won’t let go.

Generally, you like that in a prosecutor, because you don’t want the shady guys in public office to get away with anything or potential shady guys to think the district attorney’s office is full of pussycats. Government officials should know the D.A. is willing to chew on them.

Capizzi has to decide how much more he wants to chew on Ron Rubino, the former Orange County budget director who nine members of a jury wanted to acquit but couldn’t because of three holdout votes for conviction. Rubino was charged in connection with his alleged involvement in diverting millions of dollars in high-yield interest earnings from the numerous participants in the county’s investment pool, but has rallied a phalanx of supporters who claim he’s as guilty as, well, a comfortable pair of slippers.

Among his chief defenders, whether they want to be or not, are county taxpayers who, thanks to the Board of Supervisors, have so far ponied up $500,000 for Rubino’s legal defense. After once suggesting it could go no higher, a board majority now may be wavering.

Capizzi has already said his office will retry the case, but losing 9 to 3 in the first round foretells doom in a second trial. It takes quite a bit of imagination to picture transforming 9 to 3 for acquittal into 12 to 0 for conviction. Worse yet for the D.A., some of the jurors favoring acquittal said it wasn’t even close, speaking harshly about the weakness of the case.

That raises a rather obvious question about a second trial: What’s the point?

Maybe we’re talking philosophy here. Capizzi probably knows as much as anyone that he isn’t likely to get a conviction on Rubino. If so, what’s the rationale behind continued prosecution?

In his remarks thus far, Capizzi seems to be taking a fairly axiomatic approach to the case: we see evidence of a crime; it’s our job to prosecute.

No quarrel with that. But my own view of the district attorney’s office--any district attorney’s office--is that it ultimately exists to serve the public.

It isn’t there to keep the lawyers busy.

It isn’t there to make political careers for its more stellar members.

It isn’t there to wage prosecutions that have no chance of yielding convictions.

It’s there to hold accountable those who have wronged society. The D.A. makes its case to that public--as represented by a jury--and the public decides accountability.

Nobody ever accused me of being a deep thinker, but if a jury was that underwhelmed by the case against Rubino, who is being served by another trial?

It would be different if we were talking about an egregious slam-dunk crime, or if the jury had been heavily tilted toward conviction, or if the first go-round had been a flawed prosecution. None of those apply to the Rubino case. We are not talking the Menendez brothers here, where the first jury hung up only over what to convict them of.

Instead, we’re talking about a case that lost its star witness--former Assistant Treasurer Matthew Raabe--when he refused to testify, and his grand jury testimony could not be used. And I use the term “star witness” advisedly, in that Raabe himself is charged with bankruptcy-related charges.

My experience over the years in either covering public bodies or following them is that people like Rubino--the true career professionals within the operation--know everything that’s going on. It’s the elected officials who tend to know and understand less.

That said, I have no idea whether Rubino’s actions constituted a crime or not. All I know is that a jury that listened to the evidence wasn’t convinced and another jury isn’t likely to make a radical swing in the other direction.

Further prosecution gives off the whiff of a pointless pursuit.

It’s good to have a dogged district attorney.

It’s not good to have a dogmatic one.

Dana Parsons’ column appears Wednesday, Friday and Sunday. Readers may reach Parsons by writing to him at the Times Orange County Edition, 1375 Sunflower Ave., Costa Mesa, CA 92626, or calling (714) 966-7821.