Ex-prosecutor accuses OC DA Todd Spitzer of raising race as issue in death penalty case

ORANGE COUNTY, Calif. - Orange County District Attorney Todd Spitzer allegedly told a group of prosecutors discussing the case of a Black murder defendant that some Black men intentionally date white women to escape "bad circumstances or bad situations," according to a December memo written by a recently fired prosecutor and obtained by City News Service Wednesday.

But Spitzer on Wednesday told CNS the fired prosecutor, Ebrahim Baytieh, misrepresented his comments and generated the memo as a way to "extort" him after an internal probe was launched into Baytieh's handling of an unrelated murder case.

According to the Dec. 3 memo penned by then-Assistant District Attorney Baytieh, Spitzer was in an October 2021 meeting with other prosecutors to discuss whether to seek the death penalty against a Black man accused of a 2019 double-murder in Newport Beach. While discussing alleged prior acts of domestic violence by the defendant, Spitzer "specifically and expressly asked about the race of the defendant's prior female girlfriends/victims," according to the document.

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Baytieh wrote in the memo that he did not know the ethnic background of the victims, and the prosecutor assigned to the case said "he does not consider or take race into account," prompting Baytieh to add "that the race of the victims is completely irrelevant and it will be inappropriate for the OCDA to consider or give any weight to the race of the victims."

But Spitzer "stated that he disagreed and he knows many Black people who get themselves out of their bad circumstances and bad situations by only dating `white women,"' according to the document.

"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 (AB 2542)," Baytieh wrote in the memo.

Spitzer responded "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," according to Baytieh's memo.

According to Baytieh's memo, the comments were allegedly made during an Oct. 1, 2021, meeting of prosecutors to consider whether to seek the death penalty for Jamon Rayon Buggs, who is charged with killing 48-year-old Wendi Sue Miller of Costa Mesa and 38-year-old Darren Donald Parch of Newport Beach in April 2019.

Buggs, who is Black, had dated Miller, who was white.

Responding to the release of the memo Wednesday, Spitzer released an email from Baytieh in which the former prosecutor suggested he should change the wording of his memo from "bad circumstances and bad situations" to "enhance their status."

Spitzer also released a memo he wrote on Jan. 30 saying that defense attorneys representing Buggs had raised the issue of race in their client's life, and because Spitzer said he wanted to explore the possibility, "cross- racial identification" wasn't a factor in the accused killer's motives. Spitzer noted that many death penalty cases are overturned on the issue, which usually involves a witness wrongly identifying a suspect based on racial bias.

Spitzer said he had only raised issues about whether the defendant, who was allegedly on the prowl for his ex-girlfriend's new lover, killed the woman based on cross-racial identification.

On Dec. 22, 2021, Baytieh wrote another memo outlining how two other senior prosecutors in the office had concluded that the Dec. 3 memo describing Spitzer's comments should be turned over to Buggs' defense team. They based the analysis on the Racial Justice Act as well as the Brady law that governs the obligations of prosecutors in turning over evidence to defense attorneys.

"My legal conclusion that we are obligated to discover the information in the attached memo to the defense attorneys is based on the totality of all the information, guided by the very broad language of the Racial Justice Act and the teachings of the United States Supreme Court: `the prudent prosecutor will resolve doubtful questions in favor of disclosure,"' Baytieh wrote.

On Jan. 26, 2022, Spitzer issued a memo to all of the prosecutors involved in the October meeting that the Buggs case was being reassigned to a new prosecutor, who would be supervised by Assistant District Attorney Susan Price, who is now running for Long Beach mayor. Everyone else involved in the October Buggs meeting -- including Spitzer himself -- was to be "walled off from any involvement in the case" going forward, Spitzer wrote in the memo.

Spitzer also announced in the memo that prosecutors would not seek the death penalty against Buggs, but would seek life in prison without the possibility of parole.

Spitzer told City News Service Baytieh's implication that he made racially charged comments that were inappropriate to the prosecution of the Buggs case "is simply outrageous."

Spitzer argued "race is a critical issue in this trial." He said he opted not pursue the death penalty for Buggs because defense attorneys have said their client suffered chronic traumatic encephalopathy playing football in high school and college and was subjected to racist taunts going to predominantly white schools.

"I did not believe we would be able to get death," Spitzer said. "The defense presented a whole series of defenses that I believe are compelling."

Spitzer also called into question the timing of Baytieh's memo being made public.

"He never brought anything to my attention until he wrote a memo to me, until Dec. 22 -- that was his Merry Christmas and enjoy your new year to me," Spitzer said.

Baytieh was fired on Feb. 9, with Spitzer saying the move was in response to his handling of a separate murder defendant, Paul Gentile Smith, who was convicted in 2010 but was granted a new trial over claims of prosecution misconduct.

Spitzer pointed out that the outside law firm investigating the Smith prosecution interviewed Baytieh on Nov. 3, "and it is my unequivocal belief that (the Buggs prosecution) was not a concern to him -- it became of utmost concern to him after he was interviewed. He had a sense he had a significant problem. He was going to use the race card to send a shot across the bow and extort me. ... He played the race card to send a message to me -- `I'm untouchable because now if you do anything against me in Smith I can accuse you of racism."'

Spitzer's Democratic challenger in this year's election called on Spitzer to resign over the alleged comments.

"Todd Spitzer's consideration of race while deciding whether or not California should execute a Black man isn't just appalling, it's disqualifying," Pete Hardin said. "Our system of justice must be colorblind, and the chief law enforcement officer just showed himself to be anything but. Todd Spitzer's racist remarks and dated thinking have infected cases across the office and cast a shadow over every prosecution involving a person of color."

Spitzer responded that he has heightened his office's commitment to prosecuting hate crimes and recently established a new unit for those offenses.

Several Republican and Democrat prosecutors have pulled their endorsements for Spitzer, they include San Diego District Attorney Summer Stephan, Riverside District Attorney Mike Hestrin, and Alameda County District Attorney Nancy O'Malley.

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