On June 5, 2018, voters in Orange County, including Fullerton, will trudge to the polls to cast their vote for, among other races, the County District Attorney. Thus far, the choices we have been offered rival those for a certain federal election campaign last year. Or a South Park episode from a decade prior.
In one corner we have the incumbent, Anthony Rauckauckas, who was first elected in 1998. Throughout his tenure, he has developed a reputation of refusing to seriously investigate allegations of wrongdoing by public officials, including but not limited to the various violations of open meeting laws in connection with the OC Fairgrounds giveaway (involving favorite FFFF target Dick Ackerman, discussed here ). Rauckauckas was also responsible for personally handling the murder trial of Fullerton PD Officers Manuel Ramos and Jay Cicinelli, which resulted in defense verdict after key evidence (including the false claim that the officers followed department policy) were unchallenged at Trial. And to top it off, the District Attorney office has been completely ensnared by the Jailhouse Informant scandal, which includes everything from alleged lying to defense attorneys about the existence of said informants to failure to forward exculpatory evidence which was inadvertently obtained by the informants. The scandal is a complex one and no one article can possibly do it justice (here’s a link to a series of articles to get you started) but it is serious enough that the District attorney is now barred from prosecuting the death penalty case of Scott Evans Dekraai.
And in the other corner, we have Todd “Wahoo” Spitzer. Admittedly, the Wahoo incident may sound petty compared to the charged of official corruption where Rauckauckas is concerned but the story itself – leaving the scene at a Wahoo fish taco after a preacher came up to talk to him, grabbing his gun and handcuffs from his car and then arresting the man for threatening him – paints a very, very poor picture of Spitzer’s character and temperament. There is also a corruption probe launched against him by the current District Attorney and while he can easily brush it off at the moment given the source, the allegations (if made by somebody else) could prove damaging. Remember, Todd Spitzer raised $235,000 for his campaign for Central Committee (by contrast, most CC candidates don’t even bother opening a committee meaning their expenditures are less than $1500). And his expenditures included all expense paid tickets to Hawaii for both himself and political donors, as well as groceries, meals and hotel expenditures.
Tough choice. Fortunately, Mario Mainero has put himself forward as a third alternative, although he is still in the exploratory stage at this time.
Mainero is a graduate of University of New Mexico School of Law, who worked as Chief of Staff to Supervisor John Moorlach from 2007-2009 and as a professor at Chapman Law School ever since, where he teaches Evidence, and director of bar preparation, where he teaches Criminal Law, Criminal Procedure, and Constitutional Law. In contrast to his reputation as a firebrand (earned while working for Moorlach), I found Mainero to be very even tempered and soft spoken, although clearly opinionated and concerned about the direction of the District Attorney’s office. Mr. Mainero was kind enough to grant me an interview with really no hassle of any kind, despite his busy schedule (he was busy working on grading essays for State Bar Examinations) and despite the fact that FFFF isn’t exactly a high profile media institution at the county level. Unfortunately, while I taped the interview, I erased over portions of it (including what would have been some great pull quotes) so the interview will have to take this format rather than a standard Q&A.
The first question was the obvious one: Why are you unhappy with the current choices for District Attorney? Mainero didn’t flinch in this count. He noted that the District Attorney’s handling of jailhouse informants appears to constitute basic constitutional violation of the Sixth Amended right to counsel (as articulated in Massiah v. U.S. 377 U.S. 201) as well as the failure to turn over exculpatory evidence (as articulated in Brady v. Maryland 373 US 83 ). He noted that, while he did not have the prosecutorial experience Rauckauckas had before becoming county DA “It is clear that I know more about criminal procedure than Tony Rauckauckas does, and my students know more about criminal procedure as well.”
As for Spitzer, he conceded that he his highly intelligent “high energy” and enthusiastic but that the Wahoo incident, and the complaints concerning his work environment, raise concerns about his judgment and potential turnover at the DA office if he is elected. Still, while not defending Spitzer, Mainero is aghast at Rauckauckas’s conduct in launching the probe into his conduct . He emphasized that Rauckauckas has no business investigating Spitzer given the political conflict created by the latter’s decision to run for the office, and the matter should have been handed over to the Attorney General Office. Asked if he would do the same if, in some hypothetical situation, he won in 2018 and learned that a potential challenger in 2022 had allegations of criminal conduct, he confirmed that he would.
Mainero was also critical of Rauckauckas’ decision to personally try the criminal case against Ramos and Cicinelli. “Rauckauckas is not really an in the courtroom kind of persuasive person,” he noted. This is not in and of itself a problem, as the District Attorney’s job is managerial, but it also means he should have known his limitations and should have known it was not appropriate for him to try that case with the lack of recent courtroom experience and lack of familiarity with the Judge trying the case.
As to Rauckauckas’s long record of avoiding prosecution of wrongdoing of public officials, he noted that “The public has a right to feel confident that a decision not to prosecute was not done for political reasons.” To address this, Mainero made several promises: First, he stated that, if elected he would eliminate the position of Chief of Staff. “The DA does not need a chief of staff. That (position) is a political operative.” In addition, he proposed the creation of a political crimes unit to specialize in the investigation of allegations of wrongdoing against public officials.
Mainero also promised to avoid politics by not endorsing candidates for office and not seeking endorsements as well. And given the way in which the DA’s office has been run, he believes the entire department would benefit from a retraining on ethics and Supreme Court rules on Criminal Procedure. At the same time, Mainero stressed that he wants to work with the existing attorneys at the DA’s office and that he believes he could avoid the turnover he fears would occur if Spitzer was elected. “All I care about is if the DA’s do their job.” As to any DA’s who may ultimate endorse one of his opponents he noted: “This (race) is not about me, this is about the need for a District Attorney Office that is professional and ethical.”
One issue he admits may prove controversial for some was his views of how the DA should handle the death penalty. “I think we have to be realistic about where we live… The federal courts in California are not going to re-institute the death penalty in California any time soon” and that, regardless of how anyone feels about the death penalty in general, the DA should be focusing on the most effective use of the resources he is given. “Why should we spend a quarter of a million dollars more per trial than you otherwise would and get essentially what you get for life without the possibility of parole?” – noting that the money saved can be used more effectively for prosecution of other crimes which are systemic in Orange County (gang crime, human trafficking, identity theft, elder abuse).
Finally, although this would not directly bear on his work as DA, Mainero is justifiably proud of the efforts he did to roll back the retroactive pension spike as much as he could while working for Supervisor Moorlach (as opposed to his potential opponent, who supported the increase). “Think of it this way, if you’re going to buy an annuity, you’ve got to fund it so there’s money out there, But if you say to folks, ‘for that thirty years (you’ve been working) we’re now going to increase the amount attributable to your pension’, you never pre-funded that.” Mainero was also as well one of the public advocates for the criminal investigation of the handling of the OC Fairgrounds sale, which Rauckauckas refused to do.
The election for OC DA will be held in the June 2018 Primary. If no candidate obtains 50% of the vote, there will be a runoff in November among the top two candidates. If, at that time, the top two candidates are Rauckauckas and Spitzer, then those will be our choices. But in the Primary the vote for the alternative will not be a vote for the worse of two evils, it will be a vote for an alternative. If you believe we deserve a better choice in the OC DA’s race, be sure and encourage Mainero to make the plunge and run this June.