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O.C. Inquiry Is Linked to Utah Abduction

Prosecutor in Buena Park fondling case is suspended after the defendant becomes a figure in Elizabeth Smart investigation.

November 03, 2002|Stuart Pfeifer | Times Staff Writer

An Orange County prosecutor's handling of a local sexual battery case is under scrutiny after Utah detectives began investigating whether the defendant played a role while out on bail in the high-profile kidnapping of a Salt Lake City girl last summer.

The inquiry by Utah authorities led Orange County Dist. Atty. Tony Rackauckas to suspend Deputy Dist. Atty. Randy Payne, the veteran sex-crimes prosecutor who handled the case involving two young female victims from Buena Park earlier this year, according to officials familiar with the situation.

James Witbaard, 51, was arrested in January on suspicion of fondling the two girls, who lived in his neighborhood. Witbaard spent 23 days in jail before posting bail. He pleaded guilty in July to felony sexual battery and was sentenced to time served plus five years' probation and counseling.

In Salt Lake City, Elizabeth Smart was snatched at gunpoint from her home June 5 while Witbaard was out on bail. The 14-year-old girl is still missing.

Salt Lake City police became interested in Witbaard after learning that he visited Utah last summer, said Salt Lake City Police Capt. Cory Lyman, commander of a task force investigating Smart's disappearance.

Lyman stressed that Witbaard is only one of several people whom investigators are examining and that they have no direct evidence linking him to the Smart abduction.

Witbaard's attorney said his client had nothing to do with the Utah kidnapping and predicted that detectives will soon move on to other suspects.

After learning of the Utah investigation in September, Orange County prosecutors opened an investigation into Payne's handling of the case. Payne was placed on paid administrative leave Oct. 4, according to district attorney officials familiar with the matter.

Payne's other cases, including one scheduled for jury trial three days later, were assigned to other prosecutors in the office.

Several prosecutors, judges and defense lawyers expressed surprise at Payne's situation. They described him as a fair-minded but tough prosecutor who has handled several high-profile child molestation cases.

"He's the best trial lawyer I've ever had in my court," said Orange County Superior Court Judge Suzanne S. Shaw, who recently presided over a case that Payne prosecuted. "He's prepared. He knows the evidence inside and out. He doesn't have an agenda.

"This guy ought to be training other deputies in how to handle cases," Shaw said. "This is amazing to me."

Last year, Payne prosecuted Boy Scout volunteer Kenneth Teague, who was convicted of 16 felony molestation counts and sentenced to more than 100 years in prison. In September, Payne filed charges against a part-time vocal instructor for the All-American Boys Chorus for allegedly molesting a teen-age boy for several years.

Rackauckas declined to comment for this story. Sources said officials are examining several cases Payne handled, including the Witbaard case.

Witbaard's lawyer, Orange County Deputy Public Defender Doug Lobato, said Payne handled the case responsibly and that the plea bargain was fair, especially considering evidence problems the prosecutor faced.

Lobato noted that the charges did not involve significant sexual contact -- Witbaard was alleged to have smacked the girls on the bottom.

A psychologist who interviewed Witbaard after he was charged with assaulting the Buena Park girls found he was not likely to offend again, he added.

"My client is not a risk to anyone," he said.

At the time of his arrest for the Buena Park assaults, Witbaard was on probation for the sexual battery of a 40-year-old woman in Huntington Beach.

Lobato said he believes Rackauckas took action against Payne in an effort to protect his own image. The district attorney has appeared on national talk shows to speak about the rash of child abduction cases this year, notably that of Stanton 5-year-old Samantha Runnion, who was molested and killed.

"I guess there was a possibility of some bad publicity coming out of this," Lobato said.

Responding to a tip, Orange County probation officials arrested Witbaard Sept. 12 for leaving California without authorization. During a search of Witbaard's car, probation officers found a kitchen knife, an ax and photographs of adult and preteen females in bathing suits and underwear, according to an Orange County probation report. He is being held in Orange County Jail without bail.

Investigators vacuumed the car to collect potential evidence, such as hair or clothing fibers. Utah investigators have sent the evidence to a crime lab, where it is being evaluated, Lyman said.

Lobato, Witbaard's attorney, said his client was homeless and that he kept the knife and ax in his car to use while camping. He said there's no evidence his client abducted Smart and that he does not expect charges to be filed.

The Utah investigation is continuing, even though a man authorities initially considered a prime suspect in the case, handyman Richard Ricci, died Aug. 30 while jailed on an alleged parole violation.

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