State Secretly Taped Talks in D.A.’s Office

The state attorney general’s office directed a top assistant of Orange County Dist. Atty. Tony Rackauckas to secretly record conversations with fellow employees as part of an investigation of the district attorney’s office.

Rackauckas has learned of the covert taping and is trying to question Michael Clesceri, his assistant chief of investigations, about the work he did as an operative for the state attorney general’s office, according to a letter Clesceri’s lawyer sent to the district attorney’s office.

The request is setting up a clash between Rackauckas and the attorney general’s office, which has instructed Clesceri not to answer questions about the operation, Clesceri’s attorney wrote in his Nov. 13 letter.

The attorney general assisted the Orange County Grand Jury during a lengthy investigation of Rackauckas’ office that led to a report this summer that accused the district attorney of misusing office resources and interfering in cases to benefit political supporters. The attorney general did not file any criminal charges, however.

The letter does not identify whom Clesceri recorded during his undercover work, when the work was done or how the evidence was used.

But the specter of a law enforcement agency using secret recording devices to gather evidence about another law enforcement agency is highly unusual and likely to further strain the already tense relationship between Rackauckas and Atty. Gen. Bill Lockyer, who has criticized the district attorney’s conduct in office.

“What it sounds like is an extreme form of an internal investigation of the D.A.’s office, but it’s about as extreme a form of an internal investigation as you can imagine,” said Laurie Levenson, a former federal prosecutor now teaching at Loyola Law School in Los Angeles. “I think it will send chills down the backs of prosecutors, wondering who are the good guys and who are the bad guys?”

USC law professor Erwin Chemerinsky said he knows of no similar investigation of a California prosecutor’s office.

“The whole thing is just extraordinary ... like the plot of a bad movie or something,” Chemerinsky said.

Neither Clesceri, Rackauckas nor a spokesman for Lockyer would discuss the matter.

Clesceri, who also is a Fullerton city councilman, has been on medical leave with an undisclosed ailment from the district attorney’s office since May. His attorney, Michael Stone, wrote the office to request that Clesceri not be forced to sit through an internal interview with his boss, Donald Blankenship, about his work for the attorney general.

Stone wrote that Clesceri’s medical condition would make him unavailable for the interview. He also said he believes Clesceri has been placed in an “impossible” situation, ordered by his boss to explain his role in the criminal investigation and instructed by the attorney general to remain silent.

“Frankly ... this is a nightmarish situation,” Stone wrote. “That is, no matter which way my client turns, he runs afoul of the attorney general or the district attorney.”

Clesceri, 37, a police officer for nearly 20 years, was working as a Tustin police sergeant when Rackauckas hired him as a supervisor in his 200-member investigations bureau in 1999. At the district attorney’s office, Clesceri helped organize a regional gang enforcement team.

The investigation of the district attorney’s office resulted in a grand jury report that faulted Rackauckas and his administration for several alleged improprieties, including sending an investigator in a county car to conduct surveillance on Rackauckas’ adult son in Riverside County and using his position to hire friends and relatives of political supporters.

The report also noted that Rackauckas personally intervened in some cases on behalf of campaign contributors. In one instance, Rackauckas ordered his investigators to stop an inquiry into a friend, businessman Patrick Di Carlo.

Rackauckas filed a lengthy response to the grand jury’s report, explaining that he handled the cases properly and did not misuse resources. He said the grand jury had been unduly influenced by political enemies.

In September, Lockyer said he did not believe Rackauckas committed any crimes, bringing an apparent end to the attorney general’s investigation.

But Lockyer’s chief spokesman, Nathan Barankin, took a step back from those comments this week and said Lockyer does not believe anything in the grand jury report amounted to criminal conduct.

Lockyer sent Rackauckas a letter in October criticizing him for not taking the grand jury report seriously. Also last month, Orange County’s auditor opened an examination into the use of a special fund by Rackauckas’ chief investigator -- another issue raised by the grand jury and attorney general. The investigator improperly used the fund to pay for meals and alcohol consumed during meetings with lawmakers and lobbyists, according to the grand jury report.

Now the secret recordings may have even more far-reaching implications for the Orange County justice system, Levenson said.

“My guess is once this comes out, every defense attorney in Orange County is going to want a copy of the taping,” she said, so they can determine whether any of the information can be used to help their cases.