Judge Wants Capizzi Off Baugh’s Case

Orange County Dist. Atty. Mike Capizzi should be removed from prosecuting Assemblyman Scott Baugh on charges of perjury and campaign reporting violations because of a “substantial” conflict of interest, a judge ruled Wednesday.

In his decision, Orange County Superior Court Judge Francisco P. Briseno cited Capizzi’s acceptance of $750 in campaign donations from Haydee Tillotson, one of Baugh’s political opponents, and her husband. He also accused Capizzi’s office of trying to rush a grand jury indictment of Baugh just days before Baugh’s primary election in 1996.

Capizzi’s “conflict of interest is so substantial as to render it unlikely that the defendant will receive fair treatment . . . unless the entire district attorney’s office is removed from the case,” Briseno wrote.

Baugh, a Huntington Beach Republican, faces two felony perjury counts and 10 misdemeanor violations of the Campaign Reform Act stemming from his first campaign for office in 1995. Though the original indictment was dismissed, Baugh was recharged and ordered to stand trial after a preliminary hearing last year.

Briseno stayed Wednesday’s ruling pending an appeal that will be made jointly by both the district attorney and the state attorney general’s office, whose prosecutors expressed surprise at his action. The judge encouraged such an appeal.

“I am not an expert on these matters . . . but I feel that the wise matter, the prudent matter is to grant the motion,” he said. “I have no difficulty in one side or the other seeking appellate review.”

The appeals would mean the case likely would not be tried until after the new year, when Capizzi leaves office and a new district attorney takes over.

“I am thrilled,” said Baugh, who has fought for nearly two years to get Capizzi thrown off the case. “We have said from Day One that this case was politically motivated.”

Capizzi called the decision a surprise. “It is inconsistent with the record and existing law,” he said.

Capizzi said the contributions from the Tillotsons played no role in the decision to prosecute Baugh. They were made, he said, “after we had refiled the case and had identified our course.”

He said that income is a disqualifying factor under the law, but that it “specifically states that campaign contributions are not income.”

Briseno also concluded that the district attorney had shown poor judgment in “rushing” the grand jury testimony of campaign treasurer Dan Traxler, who had given conflicting statements to investigators.

“The only reasonable conclusion is that [Capizzi] was seeking to get a return of the indictment by the time of the March 25, 1996, primary,” he wrote.

Briseno also cited a ruling by another judge in a prior stage of the case. That judge found that prosecutors “did not disclose all material evidence to the grand jury” that originally indicted Baugh in 1996. Briseno said it showed the district attorney’s inability “to be fair” in the case.

Though the original indictment was dismissed, Capizzi refiled the case and Baugh was ordered to stand trial after a preliminary hearing last year. Baugh first won the election in 1995 and was reelected in 1996 and 1998.

Capizzi rejected Briseno’s conclusion that the 1996 indictment was rushed to influence the vote in the GOP primary, which took place several days later. “That is an expression of opinion that is not supported by any facts,” he said.

Both Assistant Dist. Atty. John Conley and Senior Assistant Atty. Gen. Gary Schons, who were in the courtroom, said the judge had erred.

“I don’t believe the evidence shows a conflict of interest” requiring the recusal of the district attorney, Schons said.

The Tillotsons give substantial campaign contributions to many Republicans, he added, including $2,000 to Atty. Gen. Dan Lungren.

Conley pointed out that substantially the same recusal issues were heard and rejected last year by judges in the municipal, superior and appellate court levels.

“The only new fact is a contribution by a former candidate [Haydee Tillotson] to another former candidate [Capizzi],” he said.

Allan Stokke, Baugh’s lawyer, disagreed, saying the appeals court would now be reviewing the Tillotson contributions and Briseno’s assertion that Capizzi “rushed the indictment for political purposes.”

“The district attorney has not been a proper prosecutor all along,” he said. “We were just not getting a fair shake.”

Stokke said that Baugh finally may get the case before a prosecutor who is prepared to dismiss the felony charges or refer the case to the state’s Fair Political Practices Commission, which hears most campaign finance law violations.

Prosecutors allege Baugh lied repeatedly on several campaign finance reports in connection with the crucial 1995 election. Republicans were seeking to recall and replace Republican Assemblywoman Doris Allen of Cypress, who Democrats had installed as speaker.

Baugh, who was running against Tillotson and two other Republicans, had accepted a $1,000 contribution from a friend, Laurie Campbell. Several weeks later, Campbell was recruited by GOP activists to run as a spoiler Democratic candidate to split the Democratic vote in the winner-take-all recall election that included six candidates.

Prosecutors allege that Baugh omitted the contribution from campaign reports to hide from voters “his active involvement in placing Campbell on the ballot to split the Democratic vote and help ensure his own victory over three other Republicans.” The two felony counts and three of the misdemeanor charges relate to that allegation.

Baugh has acknowledged mistakes were made by his campaign, but has insisted he broke no laws because he relied on the advice of others, including Traxler, and acted in good faith when completing his campaign finance reports.

Rep. Dana Rohrabacher (R-Huntington Beach), whose wife Rhonda was convicted last year for her role in recruiting Campbell, said: “Those of us who have been warning the public about Capizzi’s abuses can’t help but feel vindicated today,” adding that Briseno stopped “very, very grave misconduct.”