SANTA ANA — In what appears to be a face-saving move for embattled Orange County Dist. Atty. Michael R. Capizzi, prosecutors and defense attorneys have struck a deal to avoid a retrial of former Budget Director Ronald S. Rubino on money-skimming charges resulting from the county's bankruptcy.
Under a proposed plea-bargain arrangement, the judge will dismiss two felony counts accusing Rubino of helping then-Treasurer Robert L. Citron skim nearly $100 million in interest belonging to other public agencies. In return, Rubino will plead no contest to a lesser charge: a misdemeanor accusing him of altering or falsifying a public record.
Rubino, who professed his innocence throughout a six-week trial that ended in a hung jury Sept. 13, will receive no jail time and no fines--only 100 hours of community service and two years of unsupervised probation.
The agreement allows Rubino, 44, to change his plea to not guilty a year from now, a move that could result in an outright dismissal of the charge and clear his name.
"The district attorney has assured me and [the trial judge] that this ends all proceedings against me related to my county employment and Orange County investments, borrowings and bankruptcy actions," Rubino said in a letter outlining the deal to the county Board of Supervisors. A copy was obtained by The Times on Thursday.
Assistant Dist. Atty. Jan J. Nolan, the lead prosecutor in Rubino's trial, declined to comment on the reported settlement.
"The only thing I can say is we'll be in court for a status conference Monday afternoon and we'll make a decision then as to whether or not to retry the case," Nolan said.
But Charles Wehner, one of Rubino's lawyers, confirmed that a deal had been struck.
"I regret to say this agreement has been reached that will be placed on record [in court] on Monday," said Wehner, who had pushed for an outright dismissal of the case. He declined further comment.
Rubino also would not talk about a settlement, but he provided details in his letter delivered Thursday afternoon to each member of the Board of Supervisors. The board was set to decide next week whether to lift the spending cap on Rubino's defense fees from $500,000 to $855,000.
The proposed settlement comes three weeks after visiting Los Angeles County Superior Court Judge J. Stephen Czuleger declared a mistrial in the case when jurors voted overwhelmingly--9 to 3--in favor of acquittal. At the time, some jurors pleaded with Capizzi not to retry the case, saying there was no evidence linking Rubino to any wrongdoing.
The agreement will scuttle a retrial, scheduled to begin Tuesday.
Czuleger, who according to Rubino's letter was instrumental in shaping the plea bargain, is expected to give his stamp of approval Monday when both sides meet in court for a hearing set to discuss a possible retrial.
Capizzi's decision to settle the case contradicts his earlier pledges to retry Rubino.
In interviews after the mistrial, Capizzi vowed to try again to make the charges stick, insisting "there was evidence that indicates criminal activity."
But since then, several jurors in the first trial, some county supervisors and members of the public have called on Capizzi to drop the prosecution. Board Chairman Roger R. Stanton also has turned up the heat on Capizzi by calling for a management audit of the district attorney's office to determine the cost of bankruptcy-related prosecutions.
The plea agreement appears to be a carefully crafted compromise.
By agreeing to a deal, Capizzi would secure a small punishment from Rubino and does not run the risk of suffering an outright loss in a second, costly trial.
For Rubino, the agreement means he doesn't have to undergo the emotional trauma and costs of a second trial, which he said has threatened to bankrupt his family. Rubino can also clear his name by asking the court a year from now to dismiss the remaining charge.
Insisting that he was not guilty, Rubino indicated in his letter that he felt pressured into accepting the deal because Capizzi would not drop the charges.
"Despite the jury's 9-to-3 vote for acquittal, Mr. Capizzi has steadfastly refused to dismiss the indictment outright, and made clear his intention to seek a new trial on a new indictment at some unspecified time in the future," Rubino's letter states. "It was obvious he intended to continue this unfounded prosecution indefinitely without regard to the jury's message or the cost to the public.
"A retrial, now or a year from now, could only result in a full acquittal or second hung jury. . . . It was with great discomfort that I accepted this plea agreement. . . . I am not guilty of any crime, but it is in the best interest of my family and friends, and of the public, to put an end to this ordeal. We cannot afford to continue the costly battle to prove my innocence."
Legal experts, supervisors and several jurors who voted to acquit Rubino doubted that Capizzi's prosecutors could secure a guilty verdict in the case.