Prosecutors Were Deciding Whether Or Not To Seek The Death Penalty. Their Boss Wanted To Know If The Black Suspect Had Dated White Women, Memos Say.

The Orange County district attorney’s office said it fired Senior District Attorney Brahim Baytieh for an issue in a separate case, not because he raised concerns.

Gary Coronado / Los Angeles Times via Getty Images

Orange County District Attorney Todd Spitzer hosts a press conference to kick off his reelection campaign on Jan. 26, 2022, in La Palma, California.

Eight prosecutors were weighing a man’s life, discussing in a small conference room whether or not to seek the death penalty when their boss, Orange County, California, District Attorney Todd Spitzer, wondered out loud if the Black murder suspect had a history of dating white women, according to internal memos obtained by BuzzFeed News.

One prosecutor, a supervisor within the office with two dozen years of experience, called the question “irrelevant” and “inappropriate” during the Oct. 1, 2021, meeting, but the district attorney persisted. According to one memo, Spitzer continued and said “he knows many black people who get themselves out of their bad circumstances and bad situations by only dating ‘white women.’” He went on to describe a Black man he’d known in college who “Spitzer knew for sure” had done so, the memo said.

The supervisor, Senior District Attorney Brahim Baytieh, said he tried to shut down the comments, reminding Spitzer that a new California law not only prohibited prosecutors from considering race while weighing sentencing but also required them to disclose such conversations to the defense attorneys before trial. Baytieh put the events of the meeting into writing with the intention that his memo would serve as legal disclosure in the case. But his concerns never made it to defense attorneys, and instead, according to another memo, Spitzer prohibited staff from discussing the matter and removed them from the case. Two months later, he fired Baytieh, claiming an internal investigation that had been underway since August showed Baytieh had failed to disclose evidence in an unrelated case.

The firing is just the latest turmoil to rock one of the largest district attorney’s offices in the country. Sitting in Southern California, Orange County is home to more than 3 million people, and the district attorney’s office reviews about 75,000 misdemeanor and felony cases a year. Yet the same office charged with pursuing justice has faced allegations of sexual harassment, favoritism, and racism from its own employees, who have said they’ve been targeted with retaliation by Spitzer and other leaders within the office when they’ve failed to toe the line. According to the internal memos obtained by BuzzFeed News — written by Baytieh and Spitzer himself — three prosecutors who were in the room when Spitzer talked about Black men who date white women believed the comments needed to be disclosed under the California Racial Justice Act to avoid possibly violating the law.

Spitzer initially declined to comment on the memos through a spokesperson. After this story was published, he told BuzzFeed News in an interview he believed his comments were intentionally mischaracterized and called the Baytieh’s memo an attempt to embarrass him and “save [Baytieh’s] butt.”

“It was clearly for one reason and one reason only — he was sending a shot across the bow to say, ‘If you think you’re going to discipline me [...] you’ve got another thing coming,’” Spitzer said.

Spitzer’s office also provided an additional memo written by Spitzer and dated Jan. 30, which addresses Baytieh’s memo. In that document, Spitzer writes that on Jan. 7, he challenged Baytieh’s recollection of his wording. But he didn’t deny that he’d discussed his belief that some Black men use their relationships with white women to gain social acceptance.

“The only thing I stated was that I have seen Black men date White women in certain circles in order to have others around them be more accepting,” Spitzer wrote. He added in the memo that he provided Black conservative talk radio host Larry Elder as an example.

The initial conversation that concerned Baytieh and other prosecutors came as they were discussing whether to seek the death penalty in a 2019 double murder. Jamon Rayon Buggs, a 44-year-old personal trainer, was accused of killing a man and a woman in a Newport Beach home, shooting both in the head.

After the two murders, Buggs is suspected of going to Irvine in a jealous rage, looking for a man he believed to have been involved with a woman he had dated. Instead, Buggs went to the wrong home and was arrested after the resident caught him peering into her apartment through a balcony window.

Buggs had a violent past, including a history of domestic violence that prosecutors discussed as they weighed the possibility of seeking a death sentence. It was then that, according to the memos, Spitzer began to inquire about Buggs’ previous girlfriends and whether the women he’d assaulted had been white.

Spitzer’s comments have also raised concerns from a victim’s family, who now worries the case has been tainted and that the district attorney’s office decided to seek life without the possibility of parole against Buggs, instead of the death penalty, in order to keep the comments secret.

Rick Welsh, an attorney who represents Brenda Partch, the mother of one of the murder victims, Darren Partch, said his client was “shocked and appalled” by Spitzer’s comments and the possible impact they could have on the case.

“She wanted the death penalty and instead it looks as though in order to hide these inappropriate racist and shocking statements that Todd Spitzer made in that meeting, he chose life without the possibility of parole instead of the death penalty to try to keep those statements from becoming public,” he said. “She’s just so angry and saddened.”

Mark Rightmire/MediaNews Group/Orange County Register via Getty Images

Ebrahim Baytieh, deputy district attorney, points during his closing argument in Orange County Superior Court in Santa Ana, California, on Sept. 25, 2014.

According to one of the memos, Spitzer, a former member of the California State Assembly with a long history in Orange County politics, ignored the arguments to stop asking about the race of the suspect’s past girlfriends, even if they had been possible victims of domestic violence, and continued talking.

“DA Spitzer then stated that while he was a student in college, he knew as a matter of fact that one of his fellow black students who lived in the same location as DA Spitzer only dated ‘white women,’ and that DA Spitzer knew for sure that this black student did so on purpose to get himself out of his bad circumstances and situations,” read the memo drafted by Baytieh and dated Dec. 3, two months after the meeting.

In a second memo drafted by Baytieh, two other prosecutors in the meeting agreed with Baytieh, saying the conversation was “potentially discoverable” and that it should be shared with the judge in the case.

But instead, Spitzer removed the prosecutor in the case, “walled off” all of the attorneys who witnessed the incident, and prohibited them from discussing the case with anyone.

“You are directed to have no communication regarding People v. Buggs,” reads a Jan. 26 memo from Spitzer to the attorneys, barring them from sharing any information with the new prosecutors.

Spitzer told BuzzFeed News his comment wasn’t “out of left-field,” but brought up because “race is a front and center issue in this case.” He denied that the comment could be a violation of California law.

“At least from my perspective, that was an absolutely legitimate issue for discussion,” he said.

Defense attorneys brought up race during their arguments with prosecutors, he said, including that Buggs lived in the predominantly white community of Newport Beach.

Spitzer said he made the comment because he wanted to discuss the issue of “cross racial identification” — a phenomenon where people are more likely to incorrectly identify someone of a different race and background from their own. Both Partch and Wendi Miller — the people Buggs is accused of killing — were white, as was Buggs’s ex-girlfriend.

“I was exploring whether he was making a mistake on who he was executing, if he thought it was his ex-girlfriend or someone else,” Spitzer said.

According to Baytieh’s memo, Spitzer did not bring up the possibility of the victim being misidentified during the meeting. Spitzer also told BuzzFeed News on Wednesday that he did not mention the topic in the meeting.

“I was trying to discuss it, but it got shut down,” he said. “I wish I had done a lot of things different.”

After Baytieh and Spitzer met for lunch on Jan. 7, where Spitzer said he discussed the memo, Baytieh sent out an email responding to Spitzer’s concerns and making slight changes to his original memo.

The prosecutor changed the reference that Black men date white women to “get themselves out of their bad circumstances” to instead read “to enhance their status by.” The same change was made to the portion that referenced Spitzer’s Black friend dating white women to “get himself out of his bad circumstances.”

According to the email, Baytieh made the changes at Spitzer's request. The changes, however, didn't seem to quell the concerns from some prosecutors within Spitzer's office about the generalization he'd made about Black men during the meeting.

"Todd has doubled down on his generalization of Black men," one senior deputy district attorney in the office told BuzzFeed News. "He has gone on record with news outlets stating his belief that Black men date white women to 'improve their stature in the community.' He fails to understand that his beliefs and generalizations are, at their core, racist."

The senior deputy district attorney spoke on condition of anonymity for fear of professional retaliation.

"Todd's form of racism is likely unconscious and passive, but it is the most dangerous type of racism in the criminal justice system because it is the most difficult to fight," the senior deputy district attorney said.

Spitzer told BuzzFeed News that Baytieh’s memos and his own were turned over to the judge in the Buggs case to review. The files were sent under seal, and he said he did not know when they were turned over.

On Feb. 9, Baytieh was fired because, Spitzer said, an independent investigation determined the veteran prosecutor had failed to turn over evidence in a 2010 murder conviction, a case that was overturned last year. The case had come under scrutiny after the district attorney’s office and Orange County Sheriff’s Department became tangled in a scandal over the targeted use of snitches in the county jail.

Baytieh declined to comment on this story.

In a Facebook post, he noted his sudden departure from the office and seemed to address the allegations levied against him.

“People who know me, including my colleagues, opposing counsel, and judicial officers, know that I always carried out my responsibilities by following the highest ethical standards,” he wrote.

Spitzer, in a statement, said the internal investigation into Baytieh’s handling of the 2010 case began in August, two months before the meeting discussing the death penalty and Buggs. The investigation was completed Feb. 8, the day before Baytieh was fired.

The district attorney’s office declined to provide a copy of the investigation.

“I made it unequivocally clear when I ran … that I would not tolerate the ‘win at all costs’ mentality of the prior administration,” he said in a statement. “My prosecutors will not violate the Constitution and the rights of defendants in order to get convictions.”

Baytieh’s sudden firing caused shock and raised questions among his colleagues inside the district attorney’s office, where he had gained a reputation as a diligent and effective prosecutor. He last year launched a campaign to serve as an Orange County Superior Court judge, touting his integrity and independence. At one point, Spitzer himself had referred to Baytieh as the office’s “north star.”

Internal reports and lawsuits against the county, however, have alleged the office is an environment where retaliation and favoritism have become commonplace.

One 160-page county report made public in May 2021 found that a leader in the department, Gary Logalbo, who also had been the best man at Spitzer’s wedding, had sexually harassed women deputy district attorneys.

The report detailed that after Spitzer learned about the allegations against his friend levied by one deputy district attorney, he allegedly told two others in the department’s leadership that she had “lied and was untruthful” in her reporting of the harassment. Spitzer then met with the woman’s supervisor at a law library and directed the supervisor to “write up” the victim for allegedly lying about her harassment claims against Logalbo.

The investigation found that no retaliation took place, but only because the supervisor refused Spitzer’s instruction, and a senior assistant district attorney also pushed back on the effort, leading to the incident to be reported to the county’s human resources department. Four women have recently filed lawsuits, alleging sexual harassment, discrimination, and retaliation.

In a statement, Spitzer said the department responded “promptly and appropriately, and no employee was subject to retaliation.” Spitzer also denied having ever witnessed or been told about the allegations, adding that he was “sickened” by Logalbo’s actions.

“I have been unequivocally clear that I never personally witnessed the alleged behavior or anything similar during my interactions with this former employee, or was I ever told of any such behavior,” he said in the statement. “Had I been aware of these allegations at any time, I would have taken swift and decisive action.”

Another investigator in the agency has also filed a lawsuit claiming Spitzer sabotaged a case involving multiple allegations of rape against a wealthy surgeon, Grant Robicheaux, and his girlfriend, Cerissa Riley, who were accused of luring, drugging, and raping several women. The county has denied her claim, and her lawsuit is still pending.

The allegations have cast a cloud over the district attorney’s office among its own rank and file, who have said the fear of retaliation within the office is real.

A day after Baytieh’s firing, Spitzer sent out a tweet and press release that he had been endorsed by the Association of Orange County Deputy District Attorneys, the union representing trial prosecutors and other staff.

“It means a great deal to me to have earned the trust and respect of Orange County’s front line prosecutors and all sectors of the DA office employees,” he tweeted, citing the union’s endorsement.

Behind the scenes, deputy district attorneys were reaching out to the association. Many questioned the reasoning behind the firing and, in light of the news and rumors, asked the union for another vote to reconsider its endorsement of Spitzer.

“I understand that the news / rumors of the day have prompted questions about whether CAC will be re-doing the DA enforcement vote,” the union chair, Cyril Yu, wrote to members in an email obtained by BuzzFeed News. “The answer is no - there will not be a re-vote.”