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Attorneys for the Defense Keep D.A. on the Defensive

Bankruptcy: Capizzi is forced to spend the day arguing that he has no conflict that should preclude him from prosecuting two supervisors and auditor on willful misconduct charges.


SANTA ANA — In an unusual turn of legal events, defense attorneys Wednesday forced Orange County Dist. Atty. Michael R. Capizzi to spend an entire day defending his right to prosecute the three elected officials charged with willful misconduct for their part in the county's massive bankruptcy.

Capizzi said he saw no reason that he should have recused himself from the decision to oversee the presentation of evidence to the grand jury that charged the officials.

Capizzi, who has been the district attorney since 1990 and a prosecutor in Orange County for 32 years, appeared in court on a motion by Supervisors Roger R. Stanton and William G. Steiner and Auditor-Controller Steve E. Lewis to have him removed because of alleged conflicts of interest.

The grand jury charged the three last December with willful misconduct in office.

In the continuing hearing before Los Angeles Superior Court Judge John W. Ouderkirk, appointed to hear the case after Orange County Presiding Judge Theodore E. Millard disqualified all county judges, defense attorneys have contended that Capizzi knew as much as the supervisors about the risky investment practices of former Treasurer-Tax Collector Robert L. Citron.

They contend that in 1993 Lewis sent Capizzi a letter and a 1991 audit of Citron's department disclosing that the treasurer had violated state laws. Because of that correspondence, they claim, Capizzi had as much forewarning as they did about the possibility of financial disaster, and he had a duty to act on it.

But Capizzi, responding to questions by Senior Assistant Atty. Gen. Gary W. Schons, testified that his office didn't receive the 1991 audit and that he didn't learn of its existence until accounts appeared in newspapers shortly after the bankruptcy in late December 1994.

Up until that report, Capizzi testified, most of the reports received from Lewis' office "were very benign and of no interest to us."

He said he attended monthly meetings of county department heads and that Lewis "never" mentioned the audit or Citron's practices to him or anyone else at the meetings. Nor did any county supervisor, the former county administrative officer, the clerk of the Board of Supervisors or the chief of audits in Lewis' office, Capizzi testified.

On other matters, Capizzi rebutted defense contentions that he attempted to thwart a grand jury's civil watchdog probe of the bankruptcy, including the actions of his office. He said he recommended impaneling a second grand jury to accommodate the jurors if they chose to conduct a civil investigation instead hearing the criminal case his office was preparing to present.

The grand jury had no intention of investigating his office, Capizzi testified, saying his office had been told by the former grand jury foreman that the grand jury had no reason to do so.

After the hearing, Capizzi described the defense tactics as "delay, delay, delay. We were ready to hear this [recusal motion] in the first week in January."

He also described his suggestion about appointing a second grand jury as a "totally innocent" way for the panel to conduct its own civil investigation and yet "permit us to continue with the criminal implications."

Capizzi, saying he hoped the trials against officials would occur this year, said he has a duty to fight attempts to remove him as prosecutor.

"It's my job to prosecute these cases," he said. "If we start agreeing to step down, every defendant will ask for a recusal hearing."

The hearing continues today. Lawyers are expected to present their final arguments Friday, and Ouderkirk has said he will rule May 10.

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