A jury in San Diego Thursday found that a former high- ranking Orange County prosecutor was forced to retire due to harassment from District Attorney Todd Spitzer and his top assistant, Shawn Nelson, now a Superior Court judge.
Tracy Miller sued Orange County, Spitzer and Nelson in a whistleblower retaliation and harassment lawsuit after she retired following 25 years in the office. The jury awarded Miller $3 million in economic damages and later awarded $25,000 to Miller in punitive damages from Spitzer. The jury found that Nelson did not act with malice.
The jury also found that the county failed to stop the harassment.
Miller’s attorneys argued for $330,000 in punitive damages from Spitzer. Miller’s attorney, Bijan Darvish, said it amounted to about 10% of Spitzer’s salary for the eight years he “robbed” her off in her career.
The legal fees from the county may amount to about $1 million.
Spitzer testified Thursday afternoon post-verdict that his wife handles the family’s finances so he was unfamiliar with the details of their economic situation.
“I see credit card bills once in a while,” he said. “I don’t have a real good understanding of our monthly outflow.”
He dabbed at his eyes as he testified that any personal damages would amount to a “significant hit for everything we’ve worked our entire lives for” as a family.
Spitzer, who turns 65 in November, said he has two years left on his term in office and then hinted he would not be running for re-election.
When asked when he planned to retire, he said, “Potentially in the next two years — probably pretty strongly in the next two years.”
Spitzer said any punitive damage award is “going to change our life trajectory.”
He added, “We’ll have to work longer. Our daughter was planning to transfer to university. I haven’t been able to calculate that, but I’ll definitely will have to work longer now.”
Spitzer acknowledged under cross examination that his family owns three properties, one that’s rented out and the other that is not. He said due to his career in public office as a lawmaker he is in three separate pension plans that have varying formulas.
Darvish implored jurors to “send a message” with punitive damages that will halt “this kind of misconduct… deter harassment against the witnesses who testified.”
Attorney Tracey Kennedy, who represents the county, said the verdicts already sent a message
“His punishment is the verdict,” Kennedy said, adding it will dog his political fortunes.
“His career as DA is short-lived,” Kennedy said. “A couple of years at best… The message has been set. He understands this.”
Kennedy argued that the punitive damages “should be zero,” but if jurors want a dollar figure she suggested “at most, $50,000.”
Darvish responded, “We haven’t seen one second of remorse from Mr. Spitzer.”
The case was moved to San Diego because of Spitzer’s status as Orange County’s top prosecutor and Nelson’s position on the Orange County bench. Another key witness in the trial was Orange County Superior Court Judge Chris Duff and some of the evidence involved Orange County Superior Court Judge Ebrahim Baytieh.
Seven of the verdicts were unanimous, nine were 11-1, five were 10-2 and two were 9-3 on the questions of harassment and retaliation. On damages, the votes were mostly 9-3.
Miller had reached the highest level of executive as a senior assistant district attorney for about three years before she left the office.
She alleged in her lawsuit that Spitzer and Nelson forced her to retire by creating a hostile work environment after she moved to shield younger prosecutors in the office who had reported being sexually harassed by another prosecutor, Gary LoGalbo, who was best man at Spitzer’s wedding and who retired during the harassment investigation and died before the case went to trial.
Darvish accused Nelson during closing arguments on Tuesday of falsely testifying that Miller was a liar who made up her allegations.
When Miller complained about Nelson, Spitzer did nothing about it, Darvish argued.
Darvish pointed to testimony from retired prosecutor Beth Costello, who acknowledged she wrote a scathing letter about Spitzer showing a private social media page video of her engaging in “pole fitness” at a meeting of top executives days after he was sworn into office.
“He showed a video of Beth Costello, who’s an instructor for dancing as pole dancing in its exercise, and he showed the video on a big screen of the executive meeting of her doing her exercise class,” Miller testified in the trial.
Spitzer noted Costello could be fired and that the pole dancing was “inappropriate” conduct unbefitting of a prosecutor, Miller testified.
Miller told Spitzer what he did was inappropriate, prompting Spitzer to show “more clips of her pole dancing and said, This behavior is unbecoming to a DA, and he wants to think about her position,” Miller testified.
Costello, however, testified that she had a rapprochement with Spitzer after he was elected and said she felt he had a “big heart” now.
“Beth Costello was another of his victims — that’s why she wrote that letter,” Darvish argued. “And he didn’t dispute a single fact… He did not dispute … to harassing Beth Costello.”
Darvish also said Spitzer and Nelson would refer to the women managers as “babysitters” for rookie prosecutors in the branch courts.
“They say the women babysit and the men manage,” Darvish said.
Darvish pointed to testimony from Assistant District Attorney Susan Price who found the belittling “incredibly offensive.”
Price, however, testified that since her sons were babysitters she did not feel it was meant to be a sexist comment, though she found it offensive.
Darvish also noted how Miller was told that in executive meetings with the other top prosecutors she was not allowed to speak without permission. She also noted how when a county-hired attorney issued a report on the sexual harassment allegations against LoGalbo, Spitzer sent it to everyone in the office, which essentially outed Miller and other accusers.
“There’s only one reason to send that out — to continue the harassment of the victims,” Darvish argued.
A follow-up report from the outside counsel concluded that Spitzer had violated county policy by sending out the document.
Darvish accused Spitzer of threatening to remove Miller as head of an anti-gang program for youths that she founded or to diminish it. “It was done to drive Tracy out,” Darvish argued.
One of Miller’s friends in the office testified that she looked “unhealthy, upset” from the stress, Darvish argued.
Kennedy argued that employees like Miller were “at will” workers, meaning they could have been fired at any time when Spitzer took office. But instead of firing her she was promoted, Kennedy said.
Spitzer never disciplined Miller in any way, Kennedy argued. She said there was no documentation that Spitzer and Nelson wanted to get rid of Miller.
Kennedy also downplayed Miller’s role in helping prosecutor Clarisse Magtoto when she reported allegations of harassment against LoGalbo.
Orange County Superior Court Judge Chris Duff was in management as a prosecutor when Spitzer asked him to write up Magtoto for being untruthful, Duff testified. Duff, who was later elected judge, said he resisted the order because he was advised not to by county human resources officials and because he felt it was potentially illegal.
No one asked why Spitzer was concerned about her honesty, Kennedy argued.
Kennedy argued Duff and Miller “jumped to a conclusion” that it was about LoGalbo.
“Something has to happen before you can sue” for harassment, Kennedy argued. “You can’t sue because you fear something will happen.”
Kennedy denied that Spitzer moved to reduce the anti-gang program to punish Miller. She said they had issues funding the program.
“There’s no evidence he took any steps to dismantle” the program, Kennedy said.
“Nothing happened to her,” Kennedy argued. “She was not retaliated against.”
Miller “did not like Todd or Shawn from the start,” Kennedy said. “It was a changing of the guard.”
Darvish argued in his rebuttal that Duff was retaliated against and the defense ignored that.
No one asked why Spitzer was upset with Magtoto because “it was absurd that he wanted to write her up,” Darvish argued.
Whenever Spitzer got bad headlines “He blamed Tracy Miller… He blamed everybody else,” Darvish argued.
“He even tried to blame” a judge, who found Spitzer had violated the Racial Justice Act when mulling the death penalty in one case, Darvish argued.
Spitzer was also angry with Miller for blowing the whistle on Spitzer’s meeting with the father of a victim of a mass shooting in Orange who had been facing his own criminal case, Darvish argued. Spitzer was criticized for suggesting leniency for the defendant.
In a statement he issued later Thursday, Spitzer said when he took office in 2019 he said he “inherited an office in chaos,” referencing the Snitch Scandal involving the illegal use of jailhouse informants.
He said he kept his predecessor’s executive management team in place for stability.
Spitzer said he grew frustrated with Miller’s performance but added, “In hindsight, I realize that I was not as sensitive to the issues Ms. Miller was facing at the time as I should have been, and for that I am truly sorry.”
Spitzer said he respected the jury’s decision and he is “heartbroken over the fact that any of my actions could have been interpreted as anything other than a good-faith effort to clean up the public corruption in the Orange County District Attorney’s Office and to create a work ethic that adheres to what Orange County residents demand of its District Attorney.”
