Lawyers for Man Accused in Killings Want D.A. Off Case

Attorneys for the man accused of killing three people in a shooting rampage last year at West Anaheim Medical Center want Orange County Dist. Atty. Tony Rackauckas off the case because his father was a patient there shortly before the attack.

By calling on the state attorney general to take over the case, the public defender’s office is setting the stage for what legal experts say would be an unusual court hearing to decide when a prosecutor is too close to a case to handle it impartially.

Rackauckas’ 83-year-old father was discharged from the hospital two days before Dung Trinh allegedly shot three hospital employees to death in a Sept. 14, 1999, attack that sent patients diving for cover, according to court records.

Defense lawyers said Rackauckas was shaken by his father’s near-brush with a killer and handled Trinh’s case much differently as a result, while not disclosing his family connection to the case.

Two days after the killings, Rackauckas held a news conference on the courthouse steps to announce he was seeking the death penalty. The prosecutor also announced he would seek to execute anyone else who committed a public killing.

Rackauckas said Thursday that he visited his father at the hospital a few days before the killings. But he stressed that his decisions were based on the crime, not his family’s visits to the hospital.

“My father has been in a number of hospitals during the past two years. He’s having a very hard time. The fact that he spent three or four days at this particular hospital made no difference in my decision to seek the death penalty,” Rackauckas said. “My decision would be the same if this terrible incident occurred in any hospital in our county, or if my father had never been in this particular hospital.”

Rackauckas said he did not disclose his visit to the hospital sooner because he didn’t consider it a significant issue.

“It wasn’t something that had anything to do with the case,” he said. But Orange County Public Defender Carl Holmes disagrees.

“It is very clear that this decision was made abruptly, and this case was handled differently than any capital case I’m aware of,” said Holmes. “We believe the district attorney has a conflict of interest in this case.”

Prosecutors routinely withdraw from cases involving family members as defendants or victims. Rackauckas recently stepped down from his adult son’s cocaine possession case, which the state attorney general’s office handled. But legal experts are divided about whether Rackauckas is too close to the Trinh case.

“The coincidence of the father having been treated at the same hospital doesn’t move me,” said Santa Clara University law professor Gerald Uelman. “That’s a real stretch in trying to argue there’s any conflict for the D.A.”

Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles, said Rackauckas’ policy change regarding mass shootings appears to support the defense attorneys’ claims.

“Generally, anti-crime rhetoric does not qualify to disqualify a district attorney,” Levenson said. “But this is more than that. This is a personal interest in a specific case because of his father being at risk at the hospital.”

Holmes said his attorneys will soon file a motion asking Judge Richard L. Weatherspoon to remove Orange County prosecutors from the case. He noted that Rackauckas abandoned a long-standing office policy in the Trinh case, failing to hold an informal hearing to discuss the death penalty issue with veteran prosecutors.

Attorneys for Trinh subpoenaed the hospital records for Rackauckas’ father last month. On Monday, prosecutors informed the attorney about the father’s stay at the hospital.

Rackauckas stood by his decision Thursday, saying that the death penalty was appropriate in a case where a gunman hunted down and killed innocent victims. In the last five years, Orange County prosecutors have elected to pursue death sentences in one-third of eligible cases.

“In this case, three innocent people were gunned down and killed,” Rackauckas said. “I’m outraged for all of the people of our county and the only appropriate response I can make here is to seek the death penalty.”

Nonetheless, the issue takes on particular significance because it is part of a death penalty case that could be later reviewed by state and federal courts, legal experts said.

To decide the issue, Weatherspoon likely will hold a hearing at which Rackauckas and other prosecutors could be called to testify about the inner workings of the office and how they decide to seek death sentences.

Rackauckas said he would have no problem testifying about his handling of the case, although he does not consider the issue relevant.

“I’m not surprised that the public defender would seize on anything they might try to work as an issue, but this is not an issue,” he said.