Did Appeals Court Read Own Ruling Clearing OCDA and Capistrano Unified Schools' Susan McGill?

Categories: School Daze
In their California 4th Appellate District, Division 3, ruling in McGill v. Superior Court of Orange County, the justices exonerate both Susan McGill and the Orange County District Attorney's office (OCDA), which brought charges against the Capistrano Unified School District's former assistant superintendent.

But, in reading the entire decision, it's unclear why the justices did not follow through with its previous threat to cite the OCDA with prosecutorial misconduct.

Brew a strong pot of coffee, build a fire to curl up next to and read the entire ruling here. See if, like me, you're at a loss as to how the OCDA is skating justice following a five-year legal battle over the creation of Capo Unified's so-called "enemies list." McGill, who was the final district administrator facing criminal counts in the case after charges against Superintendent James Fleming had been tossed out, was accused of perjury and conspiracy.

Here are but five examples, taken directly from the decision, that show the OCDA maliciously went after McGill, who retired in June 2006, which is two months before the grand jury began what would end up being a nine-month investigation into whether Fleming alone misused public funds:

  • McGill was among the very first witnesses to testify, testifying relatively early in the process in mid-August 2006, right after the testimony of Kate McIntyre, who had been Fleming's personal secretary. McGill was not the "target" of the grand jury's investigation. In fact, she was specifically told at the beginning of her testimony that there was "no expectation or intention" at that time of any charges against her "as a result" of the investigation.

  • The perjury charge centered on what the OCDA claimed was a discrepancy in McGill's grandy jury testimony. She said she planned to go to county Registrar of Voters office on her own--and without Fleming directing her to--to write down the names of people who signed various petitions seeking the recall of school board members. Why? Because she anticipated a lawsuit against the district and wanted to know why some signatures had been ruled valid and others had not. David Smollar, the district's public relations man, joined McGill on the registrar trip against her wishes. She testified that Fleming knew they were going to copy the signatures and that she assumed Smollar would forward the list to Fleming. But among the "things" Smollar left behind when he retired around the same time as McGill was a short memo, ostensibly from McGill to Fleming, and no "cc" to Smollar, that basically stated, "per your request, here's a list of signature-gatherers." The OCDA eventually concluded this was a smoking gun. Nine months after McGill testified, her secretary, Barbara Thacker, was called to testify before the same grand jury that was still ostensibly investigating Fleming and had made clear McGill was not a target. Thacker had no memory of McGill giving her a memo to type for Fleming, but--as the justices write: [A]fter being asked substantively the same question over and over (and over and over) again by two separate deputy district attorneys each taking turns asking that same question--Thacker said that McGill had probably given her the memo to prepare. Though she was now unwittingly a target of the investigation, the justices note: McGill was never asked to return to the grand jury to explain the memo, or given the chance to allow it to refresh her memory of the events concerning the trip to the registrar's office.

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