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SANTA ANA (CNS) - A former top-level prosecutor in the Orange County District Attorney's Office filed a legal claim claiming she was compelled to retire early because of multiple instances of retaliation in connection with whistleblowing on two capital cases, including the mass shooting in Orange last year.
Retired prosecutor Tracy Miller filed the claim, a legal precursor to a lawsuit, alleging misconduct on the part of District Attorney Todd Spitzer and his top assistant, Shawn Nelson, stemming from the handling of the sexual harassment allegations involving retired prosecutor Gary LoGalbo as well as the prosecution of murder defendants Jamon Buggs and Aminadab Gaxiola Gonzalez.
The allegations outlined in the claim could become evidence in the Gaxiola Gonzalez and Buggs cases, which could prompt defense attorneys to seek to have the cases dismissed.
District Attorney's Office spokeswoman Kimberly Edds said her office has not had a chance to ``fully review'' Miller's claim and did not have an immediate response.
Miller worked for the office for nearly 25 years and was a senior assistant district attorney since 2019, according to the claim.
``Spitzer... forced her from that position by purposeful and intentional retaliation and by creating a hostile work environment,'' the claim alleges. ``This environment was created by gender-based harassment, which was hostile, intimidating, offensive, oppressive, or abusive, and continual and calculated to undermine Miller's effectiveness and authority.
``This environment was created in retaliation for Miller's refusal to adopt race-based practices, her refusal to accept race-based attorney assignments and her refusal to remain silent when race was offered as justification for Spitzer's decision-making process.''
The claim alleges the ``retaliation'' was meant to ``disable Miller from, protecting her female subordinates who had properly and painfully reported sexual misconduct by a male superior, Gary LoGalbo, who was Spitzer's best man at his wedding. Miller was punished for refusing to allow Spitzer to lionize the predator, gas-light, and further savage the reputation of the victims. This environment was created in retaliation for, and in order to disable Miller from, disclosing or at least delaying her reporting of Spitzer's conduct in death penalty cases.''
Miller went to her office's human resources director Matthew Pettit around December 2020 and claimed sexual harassment and creating a hostile work environment regarding LoGalbo, the claim said.
Miller alleges in her claim that Nelson ``would repeatedly say that Gary LoGalbo did not have real victims of sexual harassment'' in front of Spitzer.
Miller said when she reported more sexual harassment from LoGalbo Nelson ``defended'' him and ``referred to the female victim as a `chicken' for not coming forward earlier.''
In January 2021 Miller reported another harassment victim to Pettit and afterward Spitzer ``falsely accused the new sexual harassment victim of being dishonest,'' she said in her claim.
``Spitzer, in retaliation for this victim reporting sexual harassment, directed Miller's subordinate to have this new sexual harassment victim `written up' for being dishonest,'' she added in the claim.
Miller said she reported that alleged retaliation to Pettit in February 2021.
Miller was interviewed as part of an outside law firm's investigation of the LoGalbo claims, and days after that forwarded on another potential victim, the claim said.
``Later that same day, in an executive meeting, in retaliation for her protected activity, Nelson presented a plan to significantly diminish Miller's material responsibilities and effectiveness,'' the claim said.
``Such retaliatory conduct included taking away many of the specialty units Miller supervised. Nelson proposed to assign Miller to the branch courts, a position that under the prior administration, was assigned to the newest senior assistant district attorney.''
On March 11, 2021, Spitzer sent a group text to Miller ``and her peers to humiliate and damage Miller's reputation,'' by saying she was ``not doing her job and getting Spitzer a press conference,'' according to the claim.
The claim also points to Spitzer releasing a copy of the outside law firm's probe, which she said outed her as ``Witness 21'' in the report, she said. A follow-up report from the outside law firm recently faulted Spitzer for releasing a copy of the report.
``Many in Spitzer's inner circle, such as (office spokeswoman) Kimberly Edds, Shawn Nelson and (DA Investigator chief) Paul Walters, stopped speaking to Miller,'' the claim alleges.
Miller said other executives would work around her. She alleges that in May 2021 an ``angry'' Spitzer shouted at her and one of her assistants and when she attempted to respond, he ``yelled, `Why are you speaking? Be quiet,'' according to the claim.
She alleges he would often say ``You just shut up'' when she tried to make a point at a meeting.
``Spitzer then admitted that his treatment of Miller was retaliatory by stating, `You take your little notes about me that end up in reports,''' the claim alleges.
When Miller's assistant confronted Spitzer about the angry display he allegedly apologized and said ``He was mad because of what Miller stated in the LoGalbo report,'' according to the claim.
The claim also raises issues about Spitzer's interaction with the father of 9-year-old Matthew Farias, who was killed in the March 31 attack in Orange.
The boy's father, Rafael Farias, has been charged with attempting to file a false or forged instrument and attempted grand theft. He pleaded not guilty Oct. 5 and is pending trial. The alleged victim in the case is Blanco Tamayo, Matthew Farias' mother, who survived the shooting.
Spitzer told an executive committee of his office that he spoke with Rafael Farias over the phone and that his criminal case came up during the conversation, according to the Miller claim.
That information would have to be turned over to Gonzalez's defense attorneys and Spitzer would have to be interviewed by an office investigator and that information would have to be turned over to the attorneys for Gonzalez and Farias, according to the claim.
The investigator spoke with Spitzer on Nov. 30 and Miller concluded that Spitzer's account of the conversation with Rafael Farias was ``materially false and misleading,'' according to the claim.
At that time, Miller was also aware that Spitzer had made remarks during a meeting about the Buggs case that critics have charged were at least racially insensitive and that it ``infected another capital case,'' according to the claim.
She accused Spitzer of ``seeking to sanitize his comments and prevent, or at least delay the mandatory discovery of these statements to the defense in the Buggs case.''
Adding to the urgency was the Racial Justice Act, which required turning over such evidence to defense attorneys.
Miller also accused Spitzer of assigning a prosecutor to a case because she is Black and that he once said during a meeting that he needed a specific investigator to accompany him to an NAACP meeting because, ``I need a brown or a black face there.''
Miller felt that Spitzer's statements to the investigator could be seen as ``obstruction of justice.'' So she instructed the prosecutor in charge of the officer's auto theft task force unit to interview her.
Miller alleged that Spitzer had jeopardized both the Gonzalez and Buggs cases as well as the careers of all the prosecutors involved in both cases. She ordered that her comments be sent to the prosecutors and to the defense attorneys for the Gonzalez and Farias cases.
Miller alleged that Spitzer delayed the release of her interview.
City News Service has made a public records act request for the report, but the office has not responded. City News Service has obtained a memo from Spitzer from Jan. 31 in which he complains the investigator ``failed to contact me'' and that the report was ``completely misleading, lacks necessary context, and draws inferences which are not based on facts.''
Spitzer characterized the call with Farias as ``accidental and completely unintentional,'' but said the report implied ``there was something nefarious.'' He said as soon as he learned Farias was a defendant he ``ceased contact.''
Spitzer said he took Farias' call to console him as a victim, according to his memo.
Spitzer said the investigator should have done a follow-up interview with him to ``clarify the misperceptions contained in the report.''
Spitzer also acknowledged speaking with the prosecutor on the Farias case and to the defendant's attorney, who, he said contacted him and was ``appreciative that I was concerned about (Farias') mental state.'' Spitzer said he spoke with the prosecutor on the case to ask him if he would consider that Farias had just ``experienced the horrific death of his child.''
Spitzer said the prosecutor appeared ``unhappy'' with being called about the case.''
Miller also alleges in her claim that Spitzer threatened to dismantle a program she oversaw for at-risk youth that attempts to steer them away from gangs as retaliation. And that was what prompted her to retire early, so the program would not be ended.
Spitzer is having a meeting with all of the office's staff, which has submitted pages of questions about the handling of the Buggs and Gonzalez cases and raises issues of low morale due to a rash of political scandals.
Spitzer is also likely to face new questions about race as video has surfaced of a speech he made before the Iranaian American Bar Association in which he used slurs for Blacks and homosexuals in a discussion about hate crimes in the community. Spitzer quoted the slurs of defendants in various cases instead of using epithets.