Out of His Skull

Illustration by Robert PokornyTony Rackauckas is the closest you get to God in local government—not the nice God who hands out benedictions, bountiful harvests and mercy, but the God whose word can book you space in a lake of fire for eternity. As the county's district attorney, he's the guy who makes the decisions that put people in jail, that send them to prison for six months, six years or life, or that get them out of jail free. But as with a lot of politicians, TR's drive for power is insatiable. And when that impulse is frustrated, it morphs by some law of Freudian psychology (I'm thinking here of the sublimation of the sex drive, but you get the picture) into something twisted and—linked to the limitless power of his office—something really, really dangerous. That's what this story is about.

Randy Payne ran headlong into the buzz saw of TR's political ambition last summer. A 10-year deputy DA with glowing personnel reviews, respected by judges, victims and their families, defense attorneys and cops on the street, Payne was the prosecutorial equivalent of a young Vincent Bugliosi. And he supported TR's first run for DA in 1998. “For all I knew, Tony was this new guy who was going to do great things,” Payne told me on the phone from his new home in Salt Lake City. “Little did I know he was going to end up trying to ruin my life.”

The life-ruining went like this. Early last year, Payne prosecuted James Witbaard on a molestation charge, eventually winning a conviction. Meantime, a judge let Witbaard out on bail. In April, following Witbaard's conviction, TR lieutenant Rosanne Froeberg, Payne's supervisor in the sex-crimes division, added this memo to Payne's personnel file: “You should be very proud of yourself. I certainly am. Keep up the great work!”

Then the feces hit the ventilation system. While Witbaard was on bail, it turned out, someone abducted 14-year-old Elizabeth Smart from her home 700 miles away in Utah. Witbaard turned up on and then was quickly dropped from a lengthy list of suspects. TR freaked out and unleashed a kind of chain reaction—his terror about being publicly pantsed transmitted to Chief Assistant DA Chuck Middleton, and then from Middleton to Froeberg. She called Payne in and grilled him—challenged his integrity, his smarts, his faith, his lawyerly talent.

Payne says Froeberg then asked the question that illustrates what the DA's office is all about—not about law and order, or Elizabeth Smart, or the possibility that a sex freak was on the loose, but about the remote—let's call it impossible—possibility that TR would show up on national TV news magazines as the moron who freed the guy who kidnapped Elizabeth Smart. It was about image—and image, for TR, a man who spends $17,000 of the public's money each month on a full-time PR staff—is about power.

“Do you have any idea how this could make Tony look?” Froeberg allegedly asked Payne.

“I cannot emphasize enough how concerned they are about Tony Rackacukas's image,” Payne says now. “It's all about image.”

TR's obsession with publicity cost Payne his job. Rackauckas suspended him for eight months. Sensing that his job in the Orange County DA's office was headed toward an ignominious end, he quit in July 2003 and moved to Utah.

“I can't work for a man who the [state] attorney general thinks is a crook,” Payne said. “Fear is what runs that office. I'm glad to be out of that atmosphere.”

The fear, again, is about losing face and then losing power. And now there's new evidence to support Payne, a really honorable and ideal prosecutor, the kind of guy who likes to put bad guys in prison and was, frankly, insanely good at it. It's not just Payne's word, which is solid platinum, but internal DA documents obtained by the Weekly, documents from the DA's own friends and colleagues that show how far TR was willing to go to manufacture a popularly held opinion that he is absolutely, without question, the single greatest cop/prosecutor/investigator since Eliot Ness. The documents reveal paranoia, arrogance, abuse of power and a secret alliance with the largest daily newspaper in Orange County.

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By the time Payne was put on leave, the DA was already pretty wound up. In June 2002, the grand jury criticized Rackauckas for obvious mismanagement of the DA's office. They revealed that he'd used public funds to pay huge booze bills at private men's clubs and out-of-town resort bars; documented two cases in which he'd blocked criminal investigations into key campaign contributors; said he flouted anti-crony rules when he hired relatives of campaign supporters with poor or no experience; asked Rackauckas why he'd given a $600 Glock handgun to a longtime Newport Beach organized-crime suspect as a birthday present; and ridiculed the DA for punishing numerous whistleblower employees with demotions or suspensions. A few months later, the Times would report that the California Attorney General's office had wired one of TR's top lieutenants to spy on the DA and had come up with gold: transcripts showed that Don Blankenship, head of TR's criminal investigation division, had lied for his boss in an official AG probe.

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Later that summer, TR might reasonably have seen hope for a rise in his political stock. The brutal abduction, rape and murder of Samantha Runnion, a five-year-old Stanton girl, was precisely the kind of moment when tough prosecutors usually shine.

“It was known in the office that [the Runnion case] was going to be [TR's] saving grace, to save him from all his negative publicity,” said Payne, the former prosecutor.

Instead, TR watched while CNN's Larry King hailed Orange County Sheriff Mike Carona—TR's easy-going, articulate competitor for public attention and the guy who nabbed Runnion's alleged killer—as a “genuine American hero.” Republican campaign strategists immediately touted Carona as a possible statewide running mate for Arnold Schwarzenegger. The two men posed together for pictures. Even President George W. Bush took time during an unrelated White House ceremony to praise the sheriff.

TR, meanwhile, botched his interviews, appearing arrogant one minute and positively inarticulate the next. On the CBS Early Show, TR fumbled a simple question about whether he would seek the death penalty for Runnion's alleged killer, Alejandro Avila. “You know, I—I'd like to explain,” the DA said. “I mean, this is a horrendous case. This is—it's a—it's a—it's a very, very destructive kind of crime.” Reviews of the DA's performance were bleak. There was no talk of higher office, no celebrity match-ups and no glowing editorials. In a letter to the Los Angeles Times, a local citizen summed up one view, calling TR weak and concluding that “it is really unfortunate” that he was a prosecutor on the important Runnion case.

The DA responded to the snubs by blaming someone else. He forced the resignation of Tori Richards, his loyal, $72,000-a-year media relations director. Determined to win favorable publicity, TR hired a new press secretary, the veteran public relations specialist Michelle Emard, and looked for his next opportunity.

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Opportunity arrived that fall, but it was hatched in the summer of disappointment. Back then, Deputy DA Michelle Lyman, an environmental law expert, was pushing toward the courthouse one of the biggest legal cases ever to shape up in Orange County. Lyman was pressing her suit against a number of oil companies—most notably ARCO—for dangerous leaks of the fuel additive MTBE. Suddenly TR showed up, shoved Lyman aside, and offered ARCO a deal that was pennies on the kinds of dollars Lyman had been talking about.

Lyman was furious and quit in protest, and now it's easy to see why. In a similar 1998 MTBE case, officials in South Lake Tahoe accepted $69 million to settle oil-company violations. But TR rolled over. Despite years of knowingly polluting Orange County's soil, threatening the invaluable local groundwater supply and refusing necessary cleanup efforts, the oil companies persuaded the DA that something more modest was in order. TR finally accepted $5 million for litigation costs and another $3 million for cleanup consultants. He refused to make them pay even $1 in civil penalties for their crimes. The deal was so lousy that, five months later, Orange County water officials filed another MTBE cleanup suit against the oil companies.

Following the grand jury report, the AG's investigation and the Runnion case, the ARCO settlement should have been whatever comes after your third strike. Instead, and here's what's interesting, TR succeeded against all odds in transforming the ARCO case into a victory. And not just a victory, but also something like a legal landmark—the Constitution, Plessy vs. Ferguson, Brown vs. Board of Education and TR vs. ARCO.

On Dec. 17, 2002, TR drove to his ARCO press conference at Islands Golf Center in Anaheim. He hadn't taken any chances with the event. According to DA documents, at least five DA employees, including three highly paid prosecutors tasked for the spectacle, spent dozens of hours in prep time. And it was like God—the nice God—was on TR's side. It had been pouring biblically that morning, but by the time TR arrived at Islands, the rain clouds had Brillo-padded the sky of dirt, leaving it an eye-numbing blue. There were TV cameras, a few print reporters and about 30 county employees in an arc behind the DA. He'd been waiting for this moment of glory for six months. He wasn't going to be modest.

(Left to Right)
Susan N Michael Schroeder with
TR on election night, 2002

Reading from a simply worded six-page script, TR told the reporters—and remember that these guys were outnumbered almost 5-1 by TR supporters; they were lonely, really—that he'd risen “to the occasion” and accepted “the challenge” to (and this part was highlighted in his speech with six asterisks for emphasis) “protect and preserve the supply of drinking water in Orange County for present and future generations.” TR then announced that the four-year-old MTBE pollution case against ARCO and Thrifty gas stations—one of the “most important and complex environmental cases in the nation,” he said—had been settled out of court for $8 million. The DA staffers and county bureaucrats he'd handpicked to attend applauded on cue.

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Press coverage of the settlement was sensational—if you were Tony Rackauckas. KFI-AM, KFWB-AM, KCBS-TV and Fox 11 News ran stories portraying the DA as a tough and wise prosecutor as well as an environmental champion. The Register published three glowing articles on Dec. 17 and 18. In one, reporter Larry Welborn editorialized that TR's work “could be the model for other counties.” The Times' headline could have been written by the DA himself: “O.C. Wins Big Money Pledge From Arco to Clean Up MTBE.” A Times editorial concluded, “District Attorney Tony Rackauckas should be applauded.”

How the ARCO case went from just one more political disaster for the DA to a kind of legal Mount Rushmore is a story we told you a few weeks ago. If you weren't reading carefully, let me remind you that Emard, the DA's official spokesperson, told us that TR turned the Titanic of ARCO into the climbing of Everest by funneling details of the story to a paper he knew would write his kind of story: your Orange County Register.

But now, thanks to internal DA documents reviewed by the Weekly, we know more—much more—about the DA's campaign to make his sucker's deal look like the Louisiana Purchase.

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The DA's battle plan regarding ARCO involved a simple three-pronged approach to the county's three largest newspapers: keep Times editors nervously in check by challenging the integrity of a key reporter; block OC Weekly's access to critical documents in the ARCO case; and, finally, funnel those same documents to the Register's Welborn anticipating that he'd write a story that was 100 percent press release.

And—this is important—TR was doing all this in a very specific context. Daily newspapers are…well, daily, of course, which means that reporters are cranking out several stories a week, just beating the hell out of their keyboards to produce at least some minimum number of stories (at the Reg, they call this Rule 140—140 stories every year). Now, any good postmodernist will tell you that there's a difference between writing and actual authorship—monkeys can do the former but not the latter. And, sadly, most reporters are simian in this regard: they're working so Saturn-plant fast, relying often on what you might call pre-assembly—i.e., phrases and quotes and actual editorial commentary made for them by someone else. They are not skeptics in this process, not most of them, but willful participants in a system designed to convey ideas from powerful people into the marketplace without interruption.

That, as the philosopher said, was “the listening” into which TR was speaking: a group of largely overworked, gullible, credulous, obsequious people ready to take what the powerful DA told them on Dec. 17 and rush it, mostly unchecked, into the next morning's paper. Of the six or so reporters facing this Wild West movie collection of Indians on a hill—the DA, of course; several staffers; his PR team; lawyers working on the ARCO case; other colorful bureaucrats (including firemen)—of those reporters facing those Indians on an insanely complex environmental issue involving petrochemicals, the movement of underground sources of water, etc., there were, Emard figures, but two or three questions, and those of such a weeknight, corporate-softball-league variety that TR had to know right then that he'd sold these typing chimps on his genius, courage and 100 percent Americanism.

“There were definitely no tough questions [at the press conference],” Emard told the Weekly. “Everyone just accepted what they were told about what a great deal the settlement was for Orange County.”

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Start with the Times. During the first three and a half years of his tenure as DA, Rackauckas enjoyed a symbiotic relationship with Times reporters. When TR faced prosecutor Wally Wade in a March 2002 rematch for the DA's job, it was Times reporter Stuart Pfeifer who saved the day—orchestrating a surprise campaign endorsement from DeWayne McKinney, a man whom Rackauckas had wrongly sent to prison for 19 years. Following Pfeifer's exclusive, front-page Sunday edition story on their Hallmark greeting-card moment—TR smiling and shaking hands with a guy he'd basically screwed—Times columnist Dana Parsons declared TR victorious in an election more than a month away.

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But relations turned nasty by September 2002. By then, Pfeifer's coverage had become more critical. (Pfeifer declined to comment for this story.) TR directed deputy DA Susan Schroeder to tell Pfeifer's editors at the Times, Shelby Grad and Jack Robinson, to reprimand Pfeifer or watch him join me on the DA's enemies list.

Keeping the Times off balance was brilliant because it was so simple: Times editors are squeamish about charges they might harbor opinions—not just unsavory opinions, but any opinions. And as Pfeifer's generous ARCO coverage in the Times suggests, TR played on that sensitivity beautifully.

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Equally beautiful was TR's skillful deflection of the Weekly. But that story, as internal DA documents show, is woven into the fabric of his handling of the Reg. On Dec. 6, I contacted the DA's office to ask about the status of the MTBE case. I was stonewalled. We learned later that the DA had barred his staff from cooperating with the Weekly on anything. None of TR's employees ever told me no, we won't help you. They were never that straightforward. They simply refused to return my calls.

On Dec. 10, I contacted Pat Markley, public information officer at the Orange County Health Care Agency, the people responsible for monitoring MTBE violations. I asked Markley to explain how her agency handles MTBE cases and for a list of contaminated locations and levels. She said she would collect the information and get back to me shortly.

Documents show that within two minutes of my call, Markley sent an urgent, high-priority “HELP!” e-mail to 12 other county officials.

“Moxley would like to know what HCA's role was, information we found—test results, studies, etc., and if we provided any written comments on the Arco MTBE case,” she wrote.

Thirty-eight minutes later she sent another e-mail, which said, “We have to be really careful with the Weekly!”

The next day Markley called and told me that reporters were not going to be given access to the county's MTBE information because the DA's lawsuit was ongoing. “Providing you information could jeopardize the case,” she said.

What Markley didn't say was that HCA environmental director Denise Fennessy had been in contact with the DA's office to coordinate a plausible reason for denying my request for information. In a Dec. 10 e-mail from Deputy DA Aleta Bryant to Deputy DA Joe D'Agostino and Emard, Bryant said she had talked with Fennessy about strategies and expressed her concern about my inquiries. “I noted that, of course, we could not tell their agency what to do, but that, with settlement being so close, and the case still being subject to the confidentiality mandate imposed by the mediation process, our preference would be that they not discuss any details of the ARCO litigation with the press at this time, and especially not before any proposed settlement has received the court's blessing and become final,” wrote Bryant. “They decided that they would not provide any detailed statement to OC Weekly regarding anything related to the ARCO litigation.”

Twenty-four hours later, at 3:21 p.m. on Dec. 11—one day after falsely suggesting that the court had made confidential all county MTBE information—Bryant e-mailed Welborn at the Register. “Hi Larry,” she wrote. “As you requested, I am attaching to this e-mail a list of the typical compliance violations that were committed by ARCO at their gasoline station sites throughout Orange County. Hope this helps.”

That same day, Bryant e-mailed Reg graphics reporter Chantal J. Lamers. The e-mail is fascinating because it proves HCA officials knew they were participating in a conspiracy. “Hi Chantal,” Bryant wrote. “Here is the graphic that has been forwarded to me so far by the OC Health Care Agency. They are still looking for additional or better ones, if they exist. They are supposed to let me know sometime tomorrow if they find them. If I am able to get my hands on a different or better one tomorrow, I will let you know. Hope you find this helpful.”

Fired TR PR director Emard
remembers the Arco press conference clearly:
Journalists “just accepted what they were told.”

The DA and HCA were not done sharing allegedly confidential information with the Register. Records show that at 12:05 p.m. on Dec. 13, the DA's office e-mailed Welborn precisely the information I had requested three days earlier: a list of contaminated sites.

At 2:53 p.m. that day, Bryant sent the following e-mail to Emard: “I am attaching copies of Exhibits A and B [of the ARCO settlement] to this e-mail for your reference and in case you want to forward them on to Larry Welborn.”

Five days before DA staffers had notified other reporters about the settlement, they had given the Register reporter an exclusive two-hour briefing, and then interviews, charts, graphics, lists and settlement exhibits for the case. But their generosity was not yet exhausted. Bryant ended an e-mail to Emard by listing “for Larry Welborn” the telephone numbers of TR's ostensible opponents in the case, Jim Holscher and Sandra Ikuta, ARCO's two top attorneys. They “will be able to assist him,” too, she wrote.

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One of the most interesting, not to say ironic, aspects of the DA's media campaign involved the fabrication of quotes. TR says he hates “dishonest” journalism. In fact, last month, explaining to the Register why his office would not speak with Times reporter Pfeifer, TR compared Pfeifer to notorious New York Times reporter Jayson Blair. In a July 11 posting on his own website, TR alleged that a Pfeifer “quote” of a county supervisor in a June 11 article was “pure fabrication.” It was a weird claim to make because it was so easily proved false: Pfeifer didn't quote the official, he paraphrased him. And he paraphrased him accurately.

But here's TR, now, in the Reg and on his own website, saying Pfeifer is the Jayson Blair of the Los Angeles Times, and that, hell, he's too busy worrying about the “protection and safety” of local citizens to engage in dirty-tricks campaigns against journalists.

And hey, you've almost got to admire Rackauckas for the balls it takes to say it, because a key tactic in the DA's ARCO media campaign was precisely this: the fabrication of quotes.

Documents show that on Dec. 9—eight days before the MTBE press conference—the DA's office e-mailed this message to the office of then-San Diego DA Paul Pfingst: “[W]e want to get third-party quotes on this case to help put it in perspective for the media.” The next day, Lizbeth Pursell, Pfingst's assistant, responded: “Paul would love to give you some quotes, but could you give me a little more information about the case so he can say something intelligent? He knows nothing about it.”

At 11:26 a.m. on Dec. 17—an hour and a half before the press conference—Rackauckas's office e-mailed two quotes for Pfingst to give reporters as his own:

• “I commend the work of the Orange County District Attorney Tony Rackauckas and his team for their tireless work on this unprecedented case. His unwavering commitment to the cause of environmental protection shows true leadership.”

• “This litigation sets a new standard for the prosecution of civil cases by the office of a district attorney. It sends the message that protecting the health and safety of our communities includes taking swift action to crack down on environmental offenses.”

Ten minutes later, Pursell replied: “The first quote is fine as is. Regarding the second, how about, 'This litigation exceeds the highest standard for the prosecution of environmental cases by the office of any district attorney'?”

Having cobbled together the San Diego DA's quotes, the OCDA's office went the extra mile for Welborn: they sent him Pfingst's phone number.

Did Welborn have a relationship with the DA's office that traded sympathetic coverage of the DA in return for easy access? Welborn insists he did not. “I have never received special access from anyone in exchange for favorable slants to stories,” he said. “It did not happen. It would never happen. To report that allegation in your newspaper would be untruthful.”

Welborn says he received information and a briefing on the MTBE case in advance because “we could be trusted . . . because we work hard at being accurate, fair and objective. I assume that other reporters—who are also fair and objective—could have received a similar briefing had they asked.”

But if Welborn is right—if he never promised the DA generous coverage—it's clear that's what TR got from the Reg: Welborn was the only key reporter to use Pfingst's fake quote; the only reporter to editorialize (in a Dec. 17 online story) that the ARCO settlement was a “model” for such lawsuits; and the only reporter whose articles failed to give voice to a single expert critic of the MTBE settlement. Not one.

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You would expect government officials who participate in conspiracies to be smart enough to keep their damn mouths shut, but that wasn't the case here. One of the key players in the DA's office—TR's hammer, really—is Susan Kang Schroeder. She's a player, and not just a $100,000-a-year deputy DA whom TR has come to rely on in all media matters. That's partly because Schroeder is the wife of Michael Schroeder, and if you don't know Mike, well, shame on you. He ran the California Republican Party for years and is TR's campaign manager. But for more than a year now, Susan has skipped the prosecution work TR regards as essential to keeping us safe in mind, body and property in order to buff Tony's image. And she's savage: Emard credits her with creating TR's media enemies list.

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Following their conquest of the media in the ARCO case, TR and Schroeder were ecstatic. They had neutered the Times and Register and blocked out the Weekly. “I remember Susan Schroeder gloating the day after the press conference because the Register had so much more information about the ARCO settlement than the Times,” said Emard, who was fired in May and has since filed a wrongful termination suit against TR. “In fact, Susan took extreme pleasure in assisting the Register in order to punish the Times. She loved leaking information to them so they could write stories the Times knew nothing about. This made it appear as if the Register was a more competent newspaper because it had 'scooped' the Times. I would hear her on the phone with Register reporters, saying, 'Well, it's crickets over there at the Times! It looks like they missed the story again! Oh, well. Too bad.'

“To Susan, 'crickets' represented a silent void.”

If it's crickets at the Times, it must be time for reflection over at Reg HQ on Grand Avenue. Before he knew of the internal DA records in the Weekly's possession, Pat Brennan, a veteran Reg reporter who shared a byline with Welborn on an ARCO settlement story, said accusations of a secret Register-Rackauckas deal were fanciful.

“I know of no such quid pro quo with the DA's office,” said Brennan. “The idea sounds pretty ridiculous, frankly. That would be an enormous breach of ethics.”

If Schroeder is happy merely molesting the Times—hassling its reporters, handing scoops to the Register—TR has a grander vision. In his world, there'd be no Los Angeles Times at all.

“The people of Orange County do not need the Times in order to know the District Attorney's office,” he wrote in his July 11 website posting. “The size of the readership of The Orange County Register . . . dwarfs the reach of the Times. The people of Orange County already know that I have one of the best prosecutorial offices in the nation.”

And can't you just hear in those words the trumpets calling candidate Rackauckas back to the starting line for Campaign 2006?

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For past articles on Rackauckas scandals, searchOC Weekly's online archive.