Judge to Rule on Motion to Recuse Orange County DA in Holy Jim Fire Case

California Wildfires: The Holy Fire At Lake Elsinore On August 9, 2018

Photo: Getty Images

SANTA ANA (CNS) - An Orange County Superior Court judge on Wednesday will rule whether the Orange County District Attorney's Office should be recused from prosecuting the case against a man accused of igniting a massive forest fire in 2018 based on Todd Spitzer's comments before he was elected district attorney.

Forrest Gordon Clark, 56, is charged with aggravated arson of five or more inhabited structures, arson of an inhabited structure, arson of a structure or forest and criminal threats, all felonies. Clark also faces sentencing enhancements for arson of multiple structures.

Clark's attorney, Jason Phlaum of the Alternate Defender's Office, filed a motion last month to recuse Spitzer's office from prosecuting the cased based on statements Spitzer made as he was running against then-District Attorney Tony Rackauckas in 2018.

Phlaum alleged that investigator Albert Banh questioned Clark when he "showed signs of mental distress."

Phlaum pointed to a news conference Spitzer attended Aug. 8, 2018, in which he characterized Clark as a "monster."

Spitzer added, "Who would go out with low humidity and high winds in the highest temperatures this time of year and intentionally set the forest on fire?"

Spitzer also made a joke about Clark's first name in reference to the blaze, Phlaum said.

"The irony here is not lost on me that his name is Forrest Gordon Clark," Spitzer said. "But he's intentionally destroyed our forest."

Phlaum also noted that Spitzer said the blaze should be renamed from the Holy Jim Fire to the Holy Hell Fire.

During an interview with a television station, Spitzer advocated for the death penalty for Clark, though the sentence the defendant faced was life.

The blaze, which started Aug. 6, 2018, in the Holy Jim Canyon area of Trabuco Canyon in the Cleveland National Forest, blackened 23,000 acres and destroyed 18 structures. The blaze was not fully contained until Sept. 13.

Prosecutors for Spitzer and the Attorney General's Office opposed the motion. If Orange County Superior Court Judge Patrick Donahue grants the motion the Attorney General's Office would take over the case.

Deputy District Attorney Keith Burke argued that while Spitzer was a candidate for district attorney he was also the chairman of the Orange County Board of Supervisors. In social media posts and in news interviews Spitzer was identified as an Orange County supervisor, Burke said.

Burke argued that Phlaum had not shown there is a conflict of interest, which is the first requirement in granting a recusal motion. Phlaum must also prove the defendant can't get a fair trial, Burke added.

Burke argued, "the fact that a prosecutor may view a defendant as a monster, or worse, does not mean that the prosecutor cannot set aside those feelings and prosecute the defendant in an even-handed manner."

Spitzer's advocacy for the death penalty in the case does not pose a conflict because he was making a statement of policy.

"This does not in any way lead to a conclusion that Spitzer would fail to apply the law as it actually exists once he assumed the office of district attorney," Burke wrote.

Burke also noted that while Spitzer campaigned on a theme that he would be tougher on crime than Rackauckas he also thanked Rackauckas' for filing the case against Clark.

Burke also noted Spitzer has not added any charges and has actually dismissed two counts.

Deputy Attorney General Alana Cohen Butler offered a similar argument.

"The evidence shows DA Spitzer did not reference this case as part of his campaign in 2018," Butler wrote. "Rather, he made statements about this case in his capacity as a representative of the area affected by the fire.

"Moreover, this case was charged before DA Spitzer took office and defendant has not shown evidence of unfair treatment in the years this case has been pending under DA Spitzer's administration."

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