DA’s Racial Remarks in Death Penalty Case Are Being Probed by OC’s Law Enforcement Watchdog

OC District Attorney Todd Spitzer’s racial remarks during a death penalty decision meeting has now become the focus of an investigation by the county’s law enforcement watchdog.

The probe by Orange County’s Office of Independent Review (OIR) centers on statements about Black men dating White women that Spitzer has acknowledged making when deciding whether to seek the death penalty against a Black defendant, Jamon Rayon Buggs, as well as complaints about the DA’s office’s handling of its victim’s rights obligations under Marsy’s Law.

“We are investigating these allegations,” said Sergio Perez, who as OIR director is tasked under county law with investigating law enforcement misconduct, in an interview with Voice of OC this week.

“The allegations are quite serious because they get to the heart…of the criminal justice system’s commitment to treat everybody fairly, regardless of who they are,” he added.

“And whenever there’s a question about that kind of treatment, then we run the danger of a crisis in confidence in the criminal justice system. We want to be sure decisions are being made for the right reasons in the right ways,” added Perez.

“The goal is to ensure people have an objective and transparent accounting of what took place.”

Spitzer – who led the charge years ago to expand the watchdog office’s jurisdiction to the DA’s office when he was a county supervisor – is promising to cooperate.

“I am the one who originally insisted on expanding the Office of Independent’s oversight to the Orange County District Attorney’s Office. Of course we will fully cooperate with any investigation,” Spitzer said in a statement to Voice of OC.

“There is absolutely zero truth to the allegations,” he added.

Spitzer has acknowledged that at an Oct. 1 meeting on whether to seek the death penalty against Buggs, he asked prosecutors about the race of the defendant’s former girlfriends and said he had “seen Black men date White women in certain circles in order to have others around them be more accepting.”

Spitzer contends that was entirely appropriate for him to bring up Black men dating White women when discussing whether to seek the death penalty, because he “simply was exploring [the defendant’s] ability to identify, properly or not, the race of the female victim in that moment before he executed two victims.”

Yet several prosecutors in the room appear to have seen it differently.

According to a memo written by then-prosecutor Ebrahim Baytieh – who’s now running for judge – he and two other prosecutors from the meeting agreed that Spitzer’s remarks had to be turned over to the judge in Buggs’ case.

Baytieh wrote the prosecutors agreed that the comments had to be disclosed to the judge under the state’s Racial Justice Act, which requires disclosure of potential racial bias.

Baytieh also had a different account from Spitzer about what the DA said. In Baytieh’s account, Spitzer said “he knows many black people who get themselves out of their bad circumstances and bad situations by only dating ‘white women.’ ”

In his memo, Baytieh – who oversaw special prosecutions at the DA’s office as a senior assistant DA – pushed back, according to his memo.

“I then specifically stated that we should not under any circumstances give any weight or even discuss the race of the victims when we are deciding about the appropriate punishment to seek because, among other legal and ethical reasons, doing so implicates the recently signed Racial Justice Act,” Baytieh wrote.

The DA responded with an alleged story about a Black man he once knew, according to the memo.

“DA Spitzer then stated that while he was a student in college, he knew as a matter of fact that one of his fellow black students who lived in the same location as DA Spitzer only dated ‘white women,’ and that DA Spitzer knew for sure that this black student did so on purpose to get himself out of his bad circumstances and situations.”

The lead detective in the Buggs case has also taken issue with Spitzer’s handling of the issue, writting a letter to the judge saying Spitzer ruined the death penalty case by making inappropriate racial remarks and then trying to cover it up.

Newport Beach Detective Court Depweg wrote to the judge that he had been told by multiple current and former DA officials that Spitzer “made an unsolicited, derogatory, and racist comment about Black men/persons” at an Oct. 1 meeting on whether to seek the death penalty against Buggs.

Spitzer denies the cover-up allegations.

Perez said his investigation would hear out all sides.

“We aren’t conducting an investigation with a foregone conclusion,” Perez said.

“It’s our job to collect the facts and to report those facts to the people of Orange County. And that’s what we intend to do,” he continued.

Spitzer has also been accused by the mother of one of Buggs’ victims of violating Marsy’s Law by not informing her ahead of telling the court he would no longer seek the death penalty – allegations Spitzer has disputed.

Perez said he’s interested in speaking with any witnesses who have more information about the issues he’s probing.

“We are interested in hearing from people with firsthand experience with regards to the allegations,” he said.

“And we hope people feel confident in stepping forward to the OIR as an independent, objective body that will whenever possible maintain the confidentiality of those individuals while also ensuring that the people of Orange County get that verifiable, objective, independent account of what took place.”

Perez, who was appointed to the watchdog role in May 2020, wrote a public investigation report last summer that called out “troubling cultural currents” in use of force training and policy at the OC Sheriff’s Department while also crediting the department for being transparent and cooperative with the probe – “with few exceptions.”

Perez’ report found that the department’s culture may be fueling deputy misconduct, harsh treatment toward people already in custody or in mental health crises, and a lack of internal probes into unauthorized use of force.

The watchdog agency used to only have jurisdiction over the Sheriff’s Department.

But back in 2015 when he was a county supervisor preparing to run for DA, Todd Spitzer successfully led the charge to expand OIR’s jurisdiction to include the District Attorney’s office.

Now, as DA, he’s the focus of an investigation by that very agency.

Perez says he looks forward to Spitzer’s cooperation in the probe’s fact-finding efforts.

“I hope and expect that the District Attorney will be constructive and cooperative in his engagement with our investigation,” he said.

“Oversight is really important in times like this, when folks have serious doubt about the way their government is conducting its business.”

Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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