Photo: Getty Images
SANTA ANA (CNS) - Orange County District Attorney Todd Spitzer spoke with the father of a 9-year-old boy killed in a mass shooting in Orange last year, even though the father had a pending auto theft case being prosecuted by his office, and then leaned on the prosecutor to drop the case, according to an internal ethics investigation obtained by City News Service.
Spitzer, however, vehemently denied any unethical activity and insisted he did not pressure a prosecutor to dismiss the auto theft case.
The Jan. 3 investigative report details concerns raised by top executives in Spitzer's office over his handling of the auto theft case against Rafael Farias, whose son, Matthew, was killed in a March 31, 2021, mass shooting in Orange.
Some of the issues raised in the report prepared by Orange County District Attorney investigator K. Schiffner were also contained in a legal claim filed recently by one of the D.A.'s top executives, Tracy Miller, who alleges she was forced to retire due to retaliation for whistleblowing in the case against the accused mass-shooter, Aminadab Gaxiola Gonzalez, and in a separate murder case.
According to the investigative report, Deputy District Attorney Jeff Schunk contacted his supervisor, Tammy Spurgeon, on July 16, 2021, to report that he had filed charges against Farias, whose son died in the mass shooting. Farias was accused of forging documents to sign over a car in his name that belonged to the boy's mother, who was injured in the Orange shooting but survived.
Miller instructed Schunk to proceed with the case, then sent an email to Spitzer, Spitzer's chief assistant Shawn Nelson and Public Information Officer Kimberly Edds to inform them about the charges against Farias, according to the report.
On Nov. 15, Spitzer told a group of executives in his office, including Miller, that he had spoken on the phone with Farias, initially to discuss the murder case against accused mass shooter Gaxiola Gonzalez, but eventually Farias brought up his own criminal case, according to the investigative report.
``Farias told Spitzer he was only trying to help the victim (Blanco Tamayo) in this case,'' Schiffner wrote in the report. ``He explained to Spitzer why it was OK for him to transfer Tamayo's vehicle into his name, and that he was not guilty. He also mentioned something about a restraining order violation to Spitzer, and said he was not guilty of that crime either.''
According to the report, ``Spitzer said Farias was very emotional during the conversation and the district attorney felt sorry for him. Spitzer advised Miller she needed to look into Farias' open case, since based on the information he received from Farias, this did not sound like a good case for our office.''
Ebrahim Baytieh, a former assistant district attorney Spitzer fired last month over allegations of mishandling a separate murder case, broke in during the November meeting to alert Spitzer that he had spoken with a witness in the mass killing case without an investigator present, and that Farias was also a criminal defendant represented by an attorney, who also was not present for the conversation, Schiffner wrote.
Spitzer initially responded that he was unaware when he spoke to Farias that there was a pending criminal case against him, but both Edds and Miller said they had previously informed Spitzer that Farias was being charged with a crime, according to the report.
``Baytieh said they needed to have an investigator interview (Spitzer) and document the interview since the conversation with Farias'' had to be turned over to defense attorneys in the Gaxiola Gonzalez and Farias cases, Schiffner wrote.
On Nov. 30, Claudia McCarthy, an investigator with the office, conducted a phone interview with Spitzer. According to Schiffner's report, Spurgeon subsequently became ``concerned'' that Spitzer's account of his talk with Farias during that interview differed from what he said during the earlier meeting with executives in his office. Miller reviewed McCarthy's report and agreed with Spurgeon's concerns.
``Compared with what was said in the executive meeting, the interview with McCarthy lacked detail and context and was misleading,'' Schiffner wrote in his report.
Miller and Spurgeon asked Schiffner and one of Miller's assistants to pool together all of the information regarding the conversation to be turned over to defense attorneys. On Dec. 4, Spurgeon informed Miller that Schunk -- the prosecutor on Farias' case -- received a voicemail from Spitzer, with the D.A. saying he had contacted Farias' attorney to discuss the case, according to the report.
Schunk then spoke to Spitzer, who said ``that to his knowledge, Farias had no criminal record, and this case should be dismissed,'' according to Schiffner. Schunk, however, thought Spitzer lacked all of the facts and was being swayed by Farias' view of the evidence, Schiffner wrote.
``Schunk then called Spurgeon and related his conversation and claimed though there are some issues with the case, he believes it can be proven,'' Schiffner wrote.
In response to Schiffner's Jan. 3 report, Spitzer wrote a memo on Jan. 31 saying the report was ``completely misleading, lacks necessary context, and draws inferences which are not based on facts.''
Spitzer said his exchange with Farias was ``accidental and completely unintentional.'' He said that as soon as he was made aware of Farias' criminal case he ``ceased contact.'' He also said he could not recall receiving a July 16 email informing him about Farias' criminal case.
``My office files 70,000 cases a year and I cannot be expected to recall specific details and proceedings of each of these cases,'' Spitzer wrote in his Jan. 31 memo. ``When I called Mr. Farias, it was simply to provide him with a forum to continue to grieve the loss of his young son and to allow me to assure him that I am doing everything in my power to seek justice in this case.
``... It is clearly understandable that a father who lost his young son in such a violent way would want to hear from the elected District Attorney that we are doing everything we can to lawfully pursue justice,'' he wrote.
Spitzer contended that he spoke with Farias for about 15 minutes, and Farias was ``expressing his grief and the frustration with the court proceedings. Mr. Farias then transitioned to the topic of a car that he had given to Ms. Tamayo, the fact that Ms. Tamayo had come to live with him after being released from the hospital after undergoing brain surgery, and that he convalesced Ms. Tamayo, but at some point, Ms. Tamayo's adult children (who are not related to Mr. Farias) did not want their mother to continue staying with him.''
Spitzer said Farias ``mentioned that he had bought Ms. Tamayo a car so that she could transport their son and that the car had been stored at his residence. He then discussed how there became ownership issues about the car and the police showed up at his home. I then immediately asked him if there was a criminal case arising from this dispute. He told me yes.''
Spitzer said he ``immediately asked if he had a lawyer and he confirmed he did,'' so Spitzer advised him that he could only speak about the case with his attorney and he ``terminated'' the conversation. Spitzer conceded in his memo that the conversation had to be memorialized.
``The resulting investigator's report is written with such aggressive and ill-intent language to buttress a perspective that I was acting inappropriately,'' Spitzer said.
He also said Miller's ``characterization of my conduct and how she describes the circumstances is biased, leading, fails to be objective, is agenda driven and entirely inappropriate.''
Spitzer insisted in his memo that Schiffner ``had an obligation to re-interview so that I could clarify the misperceptions in the report.''
Spitzer said he spoke with Schunk twice about the prosecution of Farias. He said the second conversation was after discussing the case with Farias' attorney, and he asked Schunk ``to see what, if any, resolution to the case was appropriate.''
According to Spitzer's memo, Farias' attorney never ``indicated that my interaction with Mr. Farias was problematic,'' and that she ``was very appreciative that I was concerned about (Farias') mental state and was willing to consider his mental state as to how it may have played a role in his commission what is now a crime charged by my office.''
Spitzer said he only asked Schunk to consider that Farias ``had just experienced the horrific death of his child and look at his behavior from at least that perspective.''
The district attorney acknowledged that Schunk was ``unhappy with my talk with him. He seemed bothered that I was having this discussion with him and he was clear that I must not understand the facts of the Mr. Farias case.... DDA Schunk indicated that he would seriously consider my concerns and re- evaluate the case and get back to me.''
Spitzer denied pushing for Schunk to dump the case.
``I only spoke in the abstract that if a distressed father thought he could put a car in his own name because the mother could not drive it as a result of her head trauma and has essentially abandoned it, would it matter how he proves the case,'' Spitzer wrote.
Spitzer said Schunk never called him back ``despite his promise'' to do so.
``Instead, he contacted Ms. Spurgeon, and Ms. Spurgeon and Ms. Miller decided to conduct their own investigation in order to draw unfair and baseless conclusions and direct Investigator Schiffner to write a report based on hearsay, incomplete information, bias and raw speculation,'' Spitzer wrote.
Spitzer assigned the Farias case to another prosecutor and walled himself and Schunk off from the case.