Accused D.A. Wants a Look at State’s Case

In a rare legal showdown between two law enforcement agencies, Orange County’s district attorney is seeking access to investigative files compiled against him by the state attorney general.

Prosecutors are usually united in protecting the names of witnesses and informants as well as evidence gathered by investigators. But county lawyers representing Dist. Atty. Tony Rackauckas’ office want the attorney general to turn over evidence provided by a top deputy and two other employees who went to state prosecutors with allegations of wrongdoing involving the district attorney.

The county says it needs the information to defend itself against a wrongful-termination suit filed by one of the employees, contending that the employee was dismissed because he gave false and misleading information to the attorney general’s office.

Lawyers for the county are pursuing the information even though they went to court in another case two years ago to argue in favor of guarding the same kinds of records.

Legal experts said the outcome of the case could have larger ramifications.

“Clearly, if [the district attorney] can pierce confidentiality, why shouldn’t anyone be able to pierce confidentiality?” said Stephen Kohn, a Washington attorney and leading authority on whistle-blower cases. “There’s no special exemption that gives the D.A. extra rights as a defendant. If the court orders it, it’s a public opinion and can be relied upon by others.”

One Rackauckas critic said releasing the attorney general’s documents would make whistle-blowers afraid to come forward and goes against the district attorney’s historic position.

“I can tell you from experience, the district attorney’s office in Orange County has traditionally gone to war to prevent this type of thing from compromising their investigations,” said Chris Evans, a former Orange County prosecutor.

A federal judge in Santa Ana has been hearing arguments in the case for two weeks and is expected to issue his ruling soon.

The debate is central to a wrongful-termination lawsuit filed against Rackauckas by former prosecutor Mike Jacobs. Jacobs, a 25-year homicide veteran who was once a loyal supporter and top deputy to Rackauckas, was dismissed last year, two months after he and two peers provided letters and documents that accused Rackauckas of giving favorable treatment to campaign contributors, among other misdeeds.

Those records were eventually used to start a grand jury investigation of Rackauckas. The attorney general assisted the grand jury in its probe.

The grand jury report, released in June, found that Rackauckas interfered in cases involving political backers, punished foes within the office and hired family members of campaign contributors. Rackauckas denies any wrongdoing, saying the report was unduly influenced by political enemies.

In his lawsuit, Jacobs contends his free-speech rights were violated and he was being punished for accusing his boss of corruption. Rackauckas disagrees, maintaining that Jacobs was let go for other reasons, including making improper and false statements to the attorney general and the news media.

In a federal hearing last week, Norman J. Watkins, a private lawyer leading the district attorney’s defense team, argued repeatedly that his client needs the statements and other evidence provided by Jacobs and his colleagues to try to prove that Jacobs went to the attorney general “half-cocked,” with second-and third-hand stories that were untrue.

“One of the primary questions is, did Mr. Jacobs go to the attorney general with accurate, complete information?” Watkins said.

Kristen G. Hogue, a supervising deputy attorney general, argued against the material’s release, saying her office was protecting confidentiality rules relied upon by prosecutors everywhere, including the Orange County district attorney’s office.

In fact, the attorney general cited a court case waged by county attorneys on behalf of the Orange County Sheriff’s Department to support its argument. In that case, a south Orange County couple accused but never charged with killing their child sued the county two years ago, and initially won access to investigative files. But the county appealed the decision and won, with a higher court agreeing that the file should be kept confidential until other leads were exhausted.

The attorney general’s office refused to comment on whether it is continuing to look into the allegations at the district attorney’s office.

Hogue argued in federal court that, either way, there are broader consequences to consider if access is allowed because future witnesses and informants might be unwilling and afraid to come forward if they knew they might be eventually exposed.

“Any whistle-blower would be chilled from saying anything,” she said.

Some experts agree with Hogue that the attorney general’s files are not relevant to the case. But Stanford law professor Mark Kelman said the county might have grounds for access if it argues that Jacobs lied in his dealings with the attorney general.

“If they’re saying, in part, that he made things up that got them in trouble, then I suppose that questions about what he gave them become more germane,” Kelman said.