Judge Denies Bid to Remove Capizzi From Baugh Case

A Municipal Court judge denied a motion Wednesday to remove Orange County Dist. Atty. Michael R. Capizzi from prosecuting the campaign fraud case against Assemblyman Scott Baugh (R-Huntington Beach).

While criticizing Capizzi’s office for occasionally “careless” and “sloppy” work in the case, Judge William L. Evans said Baugh’s attorneys had failed to show that the prosecution’s actions warranted the “serious remedy” of disqualification.

The judge rejected all major defense arguments that the district attorney was biased and therefore unable to prosecute the case fairly.

Most notably, the defense claimed that the district attorney’s office allegedly coerced a key prosecution witness into lying before the Orange County Grand Jury and later tried to blackmail a judge into removing himself from the case after the judge had dismissed some of the charges against Baugh.

Baugh’s attorneys had argued that Capizzi, who is exploring a run for state attorney general, is “out to get” the assemblyman to enhance his political standing.

“I didn’t find [that the prosecution’s] conduct was so egregious--not as the defense has claimed,” said Evans, who admitted vacillating before making his final determination. “This is an unusual case--very unusual. I believe some of the [actions] of the district attorney can be explained by the unusual circumstances.”

Baugh, who faces five felony charges of perjury and 13 misdemeanor violations of California election law, expressed disappointment at the judge’s decision.

“The judge said that the district attorney was sloppy and careless,” said Baugh from his Sacramento office Wednesday. “We know they were in a rush to obtain an indictment before my election. That, to me, is misconduct and demonstrates this district attorney has abused his office and should not be on this case.”

Prosecutors, who have been publicly vilified by the assemblyman and his supporters for months, praised the court’s decision.

“We’ve said all along that we’ve done nothing improper,” said Brent Romney of the district attorney’s office. “We are now looking forward to bringing this case to trial as soon as possible.”

But because defense attorneys requested time to appeal Evans’ decision, a preliminary hearing scheduled to begin Wednesday afternoon was postponed until May 12.

Bolstered by Capizzi’s recent removal from the bankruptcy-related case against Auditor-Controller Steve E. Lewis by a state appellate judge, Baugh attorney Allan Stokke hopes a higher court will grant his recusal motion on similar grounds.

Last week, the 4th District Court of Appeal ordered Capizzi off the Lewis case, in part because there was “an appearance of conflict” that could undermine public confidence in the case’s outcome.

“That factor cited in Lewis is extremely important,” said Stokke.

Explaining his decision Wednesday morning, Evans said that if the attorney general took over the Baugh case, it would certainly appear “a little cleaner” to the public. But, Evans added, the conflict must be “real,” not imagined.

Evans found two pivotal defense arguments for recusal unconvincing. Though chiding prosecutors for “sloppy” work in this instance, Evans said they did not encourage Baugh’s campaign treasurer, Daniel Traxler, to commit perjury. Traxler’s testimony is the linchpin of the prosecution’s case.

In September, Superior Court Judge James L. Smith tossed out 17 of the 22 charges on which Baugh was originally indicted on grounds that grand jurors had not been allowed to hear “prior inconsistent statements” made by Traxler. Capizzi’s office subsequently bypassed the grand jury altogether and directly refiled the charges a month later.

Also, Evans did not buy the argument that prosecutors had tried to blackmail Smith when notifying him of a possible conflict of interest stemming from the judge’s acceptance of what turned out to be a stolen air conditioner from a school district 13 years ago.

Because Smith had not reported acceptance of the air conditioner as a gift on his economic interest statement at the time, prosecutors suggested, any decision he made about Baugh’s failure to properly report campaign loans and donations might be tainted. Smith rejected the prosecution’s suggestion, saying he didn’t report that the air conditioner was a gift because he and his wife were still trying to pay for it.

Evans said he didn’t “see anything wrong with this approach” by the prosecution. “I hope people would do the same for me . . . rather than just drop a bomb,” he said.

In an afternoon hearing, Evans also rejected two other defense motions to throw out the entire case because of vindictiveness and gross misconduct by prosecutors.