OC DA 2022: Sex & Drugs & Rocky Race

It’s going to be a long, difficult, dirty race for District Attorney, as a well-heeled and experienced Democrat is finally challenging a Republican for the (nonpartisan, but who are we kidding?) position. I don’t plan to endorse in the race yet (maybe at all!) because I want to focus on the facts and the candidates from an uncommitted position. One might think that I’ll end up being for Pete Hardin, the Democrat, but depending on what I see from him (and from incumbent Todd Spitzer) I could imagine myself sitting it out. I’m taking not only a “wait-and-see” attitude, but a “wait-and-report” one. So this is my first installment of what will be a long and probably painful (at least for me) series –although if no one else enters the race then we’re virtually sure to have a winner in the June primary.

I was lured to Todd Spitzer’s campaign page by either an ad for Spitzer or some friend’s Facebook post; against my better judgment, I felt driven to dip my toe into the fracas. Here’s his opening salvo against Hardin, which I will assess below. (Caution, don’t attribute the sentiment in the graphic behlow to me or to OJB just because it appears here as a quote; that would be wrong and extremely stupid.) Sayeth Spitzer:

Hardin’s long list of reasons why he is unfit to hold any public office continues to grow by the day. It is insulting to every Orange County resident that he is trying to manipulate and lie his way into the District Attorney’s office. I refuse to let it happen! #NoLAinOC

“District Attorney Todd Spitzer” Facebook Page

Well! We certainly charged out of the gate fast!

I left the first comment (at least the first one visible to me) on this post, slightly cleaned up for grammar etc.:

Can you back this up with specifics?- Where does he live and vote?- What did he lie about?- When and why was he “forced to resign”? What is his relevant history of sexual misconduct?- When and how did he prey on victims, etc.? I’ll presume that he does oppose cash bail. I won’t try to elicit a clear and complete explanation of what his wanting to “change OC into LA” means in practice here, as I’m more concerned about assessing the truth, based on facts, of the alleged actual misconduct above. (I’m happy to see it explained, but I hope it could be in a separate comment.)

The other two comments I can see are: “Why isn’t he in prison?” and “need to print this out and distribute it” — so it seems to be having its desired effect, at least for two people.

We’ll spend a long, leisurely time addressing this one — as we will with Hardin’s (and the VOC’s, and others’ … and I’m looking at you, “Orange Watch,” whoever and whatever you are) allegations against Spitzer in the days and weeks to come. For now, let’s focus on this one. I take the allegations made here seriously; here are my takes at this point.

On residency: First, I don’t know whether Hardin is a Los Angeles resident, but I’d certainly like to know the facts behind the allegation. I think that “resident” here is defined as something like “legitimately domiciled for voting purposes,” rather than, say, merely “owns a [perhaps second] house in.” Second, I don’t know whether Hardin has to be an Orange County resident to run for (and maybe serve as) Orange County’s DA; I recall that someone in LA was going to run for Sheriff four years ago, but didn’t. My guess is that you can run for another county’s office so long as you’re a state resident; maybe you have to cure your lack of county residency before taking office — but that’s just a guess. (Boy, I’m going to miss Neal Kelley, to whom I’d generally direct such questions!) Is it better to live in OC, all other things being equal? Sure. Are there many other things that outweigh it? Sure. Many.

On resume (Vern, how do we insert diacritics here now?): I’d like to know where and how he allegedly lied and whether the lie was intentional and material. (If it wasn’t intentional, it wasn’t a “lie.”)

Forced to resign: According to reporting I’ve seen, probably in the VOC, Hardin did have an extramarital affair, which when discovered required him to resign his commission. He did, however, receive an honorable discharge, which suggests to me that it was only the mere fact of the affair, rather than any aggravating factor, that led to an honorable rather than a general discharge. Frankly, as one moves up the ranks in the military’s “up or out” system, good people are regularly cast away; this act may have been a good grounds to make such a decision to winnow him. My sense, by the way, is that this particular sort of infraction is generally overlooked; if he was singled out for a reason other than just making winnowing easier we don’t know whether it was because he’s done something good (challenging dubious policies) or bad (engaging in dubious policies.) I don’t know that that’s a fight that Spitzer should want to pick.

Sexual misconduct: I’m taking this charge seriously. I don’t know what to make of it yet, except that it will reflect badly on either Hardin for doing it or Spitzer for flinging it unjustly. So let’s skip down to:

Preyed on victims and witnesses: I’m taking this one seriously as well — partially due to the likelihood that it may just be the same charge under a different heading. Some anonymous source said something about pressuring witnesses and victims to go out with him, etc. — and if Spitzer is really making that charge then he damn well had better have his shit together. The word “preyed,” of course, is a bit vague — unless Spitzer means that Hardin actually ate people.

And now we get to policy! Well, sort of:

Supports ending cash bail: I suspect that he does. So why does a public safety fanatic like Spitzer attack him for it? Think about it: There are some people in our system who are released on their own recognizance; there are others who are denied any release on bail. Presumably, these people would remain in the same categories under a No Cash Bail regime. So we’re left with the people in between, who are either risks of flight or risks to public safety. Does Spitzer think that risks to public safety should be able to be let free pending trial so long as they have the money? As this will by definition mean freeing people who pose a public safety risk, why would Spitzer be for that? If we’re only thinking about flight risks, I’d suggest that if they show real signs of being one, they shouldn’t be let out — and, if they don’t, then they can. Someone who is really guilty of something heinous would flee regardless of how much they put up, if allowed. Oh, but wouldn’t they be deterred by bounty hunters? Uh, if people flee, who said that we can’t still have bounty hunters? Cash bail is just a way to support the bail bonds industry at the cost of discriminating by wealth; imagine how much less white collar crime we’d have if it were eliminated. Does that sound “woke”? It sounds to me like I’m tougher on crime than Spitzer is. All this charge means is that I’ll be looking into whether Spitzer has gotten, or now gets, contributions from the bail bonds industry. This was a foolish line of attack.

Wants to Turn OC into LA: Oh, dear. Let’s get into this separately — like, maybe in another installment. For now, let’s go to an interview that Spitzer also posted, and about which I commented, which is no longer available on his page but which is still available on my “All Activity” list. Sometimes that’s part of why I comment on things.

Spitzer on Drugs (Meaning ‘Addressing the Topic of,’ Not, You Know…)

Spitzer then posted a link to an interview he did about drugs — and so he gets this free advertising too (as will Hardin):

[Vern will have to embed the interview, because I still don’t understand our fancy new posting system; “Embed” gives me https://www.facebook.com/plugins/post.php?href=https%3A%2F%2Fwww.facebook.com%2FToddSpitzerforOC%2Fposts%2F281544910653625&show_text=true&width=500]

His comment introducing this was: “I discuss Fetanyl poisoning, why these deaths are not overdoses and how I will charge drug dealers with murder who pedal [sic] this deadly drug and kill the innocent.”

Beyond that, you can tell more about what he was saying by reading my (edited for typos) comment in response:

If everything said in this interview about the toxicity is fentanyl is accurate — such as “three specks can kill you” — I’m surprised that it’s not being used for mass poisonings of food, water, and maybe even air. Because (so far as I know) that’s not happening, that makes me wonder whether the drug is quite as spectacularly deadly as claimed.

Because the mens rea (culpable state of mind) of someone who sold or gave away a drug unaware that it was laced with Fentanyl would be reckless at worst, I presume that this is based on a “felony murder” approach. But honestly, the difference between someone who unsuspectingly gives someone else a fentanyl-laced Ambien versus a fentanyl-laced hamburger doesn’t seem like it should be life in prison versus reckless manslaughter at most and possibly no prosecution.

I wonder what the estimate of how many more people spend life in prison (or whatever serious sentence) is under this plan, as well as how much the prosecution and incarceration would cost. And, of course, I wonder how many of those serving time for murder will be young kids who were cutouts for dealers who may not even to be able to testify about higher-ups who might have more significant culpability.

If asking these questions makes me “woke” — as opposed to just a lawyer with substantial learning about why and how we use criminal law and recognizes the costs of such a strategy (and the likely unwillingness of Orange Countians to pay taxes to fund it) — then I don’t think “woke” is the right word.

First of all, it’s silly to say that Fentanyl overdoses are not “overdoses.” They are overdoses — unless one wants to change the meaning of “overdose,” as Spitzer perhaps does. Let’s get it clear: if someone came up behind me while I was ambling down the street and jabbed me with a solution containing a hyper-deadly dose of fentanyl, which hyper-kills me, I would have died of an Fentanyl “overdose.” It would just be an overdose that did not derive from my intention to use Fentanyl, or my use of Fentanyl at all, or my acquiescence to its administration. But from my body’s perspective … it’s an overdose.

That said, it’s true that some Fentanyl overdoses are (so far as I know) not derived from accidentally introducing too much Fentanyl into the bloodstream while trying to introduce some of it, or some of some other drug, which is the classic definition of an “overdose.” (One tries to takes a “dose,” but one takes in over the amount desired for a non-fatal effect.) The main exception to that, which Spitzer doesn’t mention, is an intentional overdose, generally for the purpose of suicide (in the case of recreational narcotics), though an narcotic overdose may occur in palliative care if that’s what it takes to eliminate heinous pain, in which death is a byproduct, and certainly people do intentionally overdose on alcohol — “getting shit-faced” — without deadly consequences (at least not from ingestion alone, in people with functioning livers and the like.)

The other exception to the classic self-administered narcotic overdose is when another drug (or non-drug) is laced with the narcotic. If this is in food or drink, and the person is unaware of it, this is poisoning. If this is part of narcotic use — such as adding fentanyl to heroin — then it’s probably a poisoning, but certainly not prototypical one, to the extent that a speck or two (but not three!) may be presumed to enhance the experience. (There’s probably a gradation here: I’d call lacing cannabis with fentanyl a poisoning, but maybe not meth — but here I’m way out of my element, and I’m not going to go around interviewing meth addicts to determine out how they like their doses adulturated.)

But the real issue here is the idea that one’s level of intention in providing someone with fentanyl is irrelevant — which includes saying that whether one even knows that the drug has been added to something else one was selling is irrelevant. There’s certainly an argument for this, under the “felony murder rule” — the one that is used to charge everyone involved in, say, committing a bank robbery with murder if a teller is killed — but there they know that they are committing a bank robbery.

So, no — I don’t think that knowledge and intent should be completely irrelevant when it comes to charging people with murder. (In civil law, perhaps the mens rea of those dealing certain drugs liable to fentanyl lacing might be judged by a “strict liability” standard — but that is very different from charging them with murder._

Let’s be clear as to what what Spitzer is doing: he wants to make people so afraid to deal drugs in OC — for fear that those drugs might, unbeknownst to the people selling them, contain a few “specks” of fentanyl and kill someone — that they will not dare to deal drugs here. Could work, I guess! (Never has, but could! Demand is high here!)

So, there is a method to what seems to me like madness. And so long as no favor is shown — seriously, children of the wealthy get murder raps for their unknowing negligence and bad luck, including those who contributed only as accessories, under the felony murder rule. No cutting deals with only the rich kids to testify for immunity or lesser charges, either; that kind of class discrimination undercuts the policy’s deterrent value. (Which reminds me: OC had a notorious cocaine culture, as I recall, in the ’70s and/or ’80s. Did Spitzer ever go to any parties back then? Would he have whipped out his gun and cuffs like he did in Wahoo Fish Tacos to nab a drug abuser? Idle speculation….)

So, seriously: Spitzer should go ahead and run on that! Scaring an entire county straight is a cogent plan — and it probably offers a stark policy difference between the candidates! But I have to say, a question arises in my mind, one that may have a valid answer: has Spitzer actually be doing this for the past three years of his term? If not, why not? If so — then, I ask in all earnestness, how has it been going? Has there just not been much fentanyl around after all? Or has he been failing to follow through with murder charges just until this current campaign season? Or — I will readily admit the possibility — maybe he has been doing it and murder trials are way up and overdoses way down. Could be!

(OK, I’m taking a deep breath. Mr. Hardin, you can expect similar treatment, you, you, you — woke Angeleno!)

Next time, we will start here, with Spitzer’s response to (I believe) Anaheim Democratic Club Jorge Gavino:

(Oh, what the heck, here’s a preview.)

So much to say here. And, if the prosecutions he mentions Newsom saying were “called for” at the end have anything to do with the policies Spitzer is endorsing — and seriously, what sort of reprobate has been suggesting not prosecuting child-killers, child molesters, and drunk drivers who kill, if such a person actually exists? — then thank you to Gov. Newson for apparently giving succor to our DA.

Final note: I left “sexual deviants” out of the above paragraph because I frankly don’t know what the Spitzer means by that — sadomasochists? People who engage in bondage — or “water sports”? He should clarify, and I hope it’s not a broad category. Spitzer and I are both old enough to remember when LGBT people were prosecuted as “sexual deviants” for sex with other consenting adults — and if Spitzer charged even one of them for deviance not other illegal, then that was literally “too many.” Maybe stay away from that term without a bit more clarification, Mr. DA!

Next installment: Turning Slumbering OC into Woke LA! What the hell does he mean?