Part 2 of 2: A comprehensive review of the evidence from attorney, Rick Welsh.
Re: Todd Spitzer, The Death of Scott Clark & The Lie That Is Spitzer’s Letter
After hiring a private investigator and filing Public Record Act requests, significant and troubling information about Spitzer’s “investigation” has come to light. It appears that Spitzer intentionally misled us. Is he engaged in a coverup? On January 13, 2020 Todd Spitzer met with Christy Clark and I to inform us that his office would file no charges in Scott Clark’s killing. He announced it that same day to Orange County’s citizens by posting the letter he read to us. But at that January meeting Spitzer pointedly refused to provide any additional information aside from the contents of his vague letter and worse, deeply troubling in fact, he refused to answer any of our questions.
From the evidence and information obtained we know Scott was killed when Jamie Mulford and a second driver engaged in a road rage incident. As they approached the intersection where he was crossing, Mulford made a right turn from the left lane in front of the second car. They collided and that second car veered into the intersection killing Scott. Yet Spitzer refuses to prosecute anyone!
Based on what we know, the thorough investigation Spitzer promised Scott’s widow Christy and to me, her attorney, never happened. The case against Mulford should never have been dismissed. She should be prosecuted. But instead, the OCDA took unjustifiable action that benefitted only Mulford, the woman who caused Scott’s death while still on probation for having killed Jerome Anderson in 2010 when she was driving under the influence. There is no transparency from the OCDA under Spitzer, instead he attempts to actively keep evidence hidden as long as possible. It is clear from his treatment of Christy at our January 13th meeting, his handling of Scott’s case and other cases, Robicheaux in particular, that he has no concern for crime victims, definitely not for Scott’s widow, Christy. To Spitzer, public safety is nothing more than a catch phrase to be used during political campaigns.
1. The Evidence Proves Mulford’s Guilt:
In August of 2017 the Orange County Sheriff’s Major Accident Reconstruction Team (MART) investigation concluded that Mulford caused Scott’s death by making a right turn from the left lane in front of the second car. In November 2017, Whitney Bokosky, the original Deputy District Attorney assigned to the case, filed felony vehicular manslaughter charges against Mulford. She intended to use the second driver, who had no prior record, to testify against Mulford to prove gross negligence, which arises largely from the road rage. Unlike the second driver, Mulford, with a significant prior criminal history, had already proven herself to be a threat to community safety.
a. Spitzer Kept Hidden The Evidence That Proves Mulford’s Guilt:
The most powerful evidence, which Spitzer refused to release until forced to in response to public record act requests, comes from three independent witnesses to the incident. These witnesses place Mulford in the left lane when she turned right in front of the second driver. This led to the cars colliding and the second car veering into the crosswalk where Scott was killed. Two witnesses were close behind these women in the right turn only lane. Nobody had a better view of the cars’ lane positions as they approached the intersection where Scott died.
But there is more than just these witnesses. Photos show damage to the right front of Mulford’s car and to the left side of the second driver’s car consistent with the collision the witnesses saw. There were even physical markings from Mulford’s tires on the second driver’s car consistent with her having turned directly in front of the second driver. There are also reports and conclusions from four accident reconstruction experts who independently analyzed the evidence. Three of the four reached conclusions that are consistent with what the eyewitnesses saw happen that night. There was a single aberration, Wes Vandiver, who alone stated that there was no physical evidence consistent with Mulford having been a cause of Scott’s death. The other three reached conclusions that were consistent with what the independent eyewitnesses saw happen. There is ample evidence that establishes Mulford’s guilt in Scott Clark’s death!
b. There Was No Adequate Justification For Dismissal:
Sometime around August of 2018 Whitney Bokosky, an experienced and effective trial attorney, was replaced as the assigned deputy by Brian Orue, a far less experience and effective attorney. In December of 2018 he told Christy that he intended to dismiss the charges Bokosky filed against Mulford, basing his decision entirely on the Vandiver conclusion. He did exactly that in January of 2019. In our discussions about that dismissal, he never mentioned the independent eyewitnesses. He simply concluded that due to Vandiver, there was insufficient evidence to ethically prosecute the case (1).The day before the case was dismissed Christy and I met with Spitzer who personally promised Christy and I that that he would continue investigating the case to seek justice Mr. Clark, his family, and the community. He assured us the office would keep us updated about their progress. He promised transparency. Those promises have proven to be entirely illusory.
From the evidence we have obtained we now know that Orue, in his attempts to explain his decision, never mentioned or disclosed to us the eyewitnesses whose statements, considered together with all the evidence, dramatically contradict Vandiver’s conclusion. Orue completely ignored the obvious physical evidence which contradicted Vandiver. In reality, this evidence, that Spitzer kept hidden from us, is consistent with the Sheriff’s MART expert’s original conclusion that Mulford caused this accident. The case against Mulford should have never been dismissed. Stunningly, we also know now that Vandiver, with no apparent regard for an obvious conflict of interest, was at some point retained by Mulford.
c. The Lie In Spitzer’s Letter, Cherry Picked Evidence To Justify Injustice:
i. Considering All The Evidence, There Is Only One Reasonable Conclusion, Mulford Caused Scott’s Death:
Spitzer noted in his January 2020 letter that according to the three experts retained by the OCDA, there were two reasonable conclusions from the physical evidence and thus the case could not be proven beyond a reasonable doubt. Surely it is not coincidence that he fails to note or describe the two “reasonable conclusions.” One is what the eyewitnesses saw happen, which is also consistent with what the second driver said happened. The other “reasonable” conclusion is Mulford’s story about what happened. That night, Mulford said she was in the right lane, where it would be legal to turn right, when she turned, and the second driver was driving straight but was in the right turn only lane.
In order to find consider Mulford’s story “reasonable,” Spitzer had to and did ignore the most compelling evidence, the evidence he kept hidden. He ignored the independent eyewitnesses who saw Mulford turn right from the left lane. He ignored the second driver who also said that Mulford turned right in front of her from the left lane. Finally, he ignored, failing in fact to even mention, the Sheriff’s expert’s conclusion that Mulford caused Scott’s death by turning right from the left lane in front of the second driver.
Significantly, Spitzer ignores Mulford’s lies. The evidence establishes that she lied. The independent eyewitnesses put the lie to Mulford’s story. They saw her in the left lane when she turned right in front of the second driver. They saw her turning in front of the second driver, making the illegal turn from the left lane that led to Scott’s death! This evidence, which Spitzer kept from us as long as possible and which he conveniently ignored, is consistent with the charges Ms. Bokosky filed against Mulford. It is consistent with the Orange County Sheriff’s MART (Major Accident Reconstruction Team) expert’s conclusion. It is consistent with the physical evidence from this incident. And it is consistent with the final two expert’s conclusions. What they saw is completely inconsistent with the Mulford story in which she turned from the right lane and not the left lane. It is the lie Mulford told the night knowing she had caused Scott’s death, even while she was still on probation for the case in which she killed Jerome Anderson while she was driving under the influence in 2010.
Spitzer knows that the jury instructions state that when there are two conclusions, one reasonable and the other unreasonable, you must reject the unreasonable conclusion. No jury, presented with the evidence in this case, would find two reasonable conclusions as Spitzer contends. The evidence proves otherwise, there is only one reasonable conclusion, that Mulford caused Scott’s death by making an illegal right turn from the left lane in front of the second driver with whom she was road raging.
ii. The Evidence Proves That Mulford Acted With Gross Negligence:
The Spitzer letter states that it was unanimously concluded (2) by his attorneys that the evidence was insufficient to prove gross negligence on the part of either party. He managed to get the legal standard correct, “’[A] person acts with gross negligence when he or she acts in a reckless way that creates a high risk of death or great bodily injury and a reasonable person would have known that acting in that way would create such a risk.’ (CalCrim 592.)” But notably, his letter contains only summary conclusions. It has no legal analysis or discussion of the evidence.
Mr. Spitzer, put the evidence before a jury. Any reasonable jury would find it to be grossly negligent for a person, while engaged in a road rage incident with another driver, after dark, to make a right turn from the left lane in front of the second vehicle, at an intersection where a pedestrian is already legally in the crosswalk as the independent eyewitnesses described! It is clearly reckless, negligent, and illegal to turn right from the left lane in front of another car. Doing so with a pedestrian already present in the crosswalk shows Mulford’s disregard for human life and indifference to the consequences. It is no mere coincidence that Scott Clark died that night; and he did die as a direct result of Mulford’s gross negligence.
Apparently recognizing the incoherence in his attempted legal analysis, Spitzer summarily states that “the issue of a possible road rage incident cannot be confirmed by any admissible evidence.” That is a fabrication! Whitney Bokosky, an accomplished and respected trial attorney, intended to call the second driver to prove the road rage. The law permits it. Although there must be other consistent evidence supporting it. But contrary to Spitzer’s bizarre and unsupported claim, there is evidence to prove it. The incident described by the eyewitnesses indicates road rage. But critically important, and also never mentioned by Spitzer, Mulford’s driving that night was so bad that while stopped at a red light the second driver took a photo of Mulford’s vehicle and license plate.
Spitzer’s intentionally vague January letter which asserts there are two “reasonable” conclusions and no gross negligence so misleads as to be nothing more than a lie, and an offensive lie at that!
2. Spitzer Does Not Care About Victims, Or About Justice, But He Protected Mulford!
When Spitzer promised to continue investigating this case to seek justice for Scott, his family, and the community and to keep us informed about the progress we know now that there was already sufficient evidence to ethically prosecute Jamie Mulford with gross vehicular manslaughter in Scott’s killing.
But it seems that they took no steps towards justice. They certainly did not objectively investigate. The most significant step taken proved to be a betrayal of Spitzer’s promises, and of his obligations as Orange County’s District Attorney. It benefitted only Mulford, the most culpable of the two drivers involved in Scott’s death. Mulford, literally the least credible witness to the incident that took Scott’s life, was asked by the OCDA to be a cooperating witness in the case! This was done merely weeks after Spitzer’s promises. Disturbingly, Spitzer and his office staff refused to answer any questions about why she was allowed to be a cooperating witness. In fact, Spitzer even refused to acknowledge that she was made a cooperating witness(3).
It appears the case was presented to the grand jury as we learned that a witness received a grand jury subpoena for March 24th. By then, Mulford was already a cooperating witness. They must have hoped to indict the second driver, both drivers are criminally culpable. But, calling Mulford to testify before the grand jury as a cooperating witness would ordinarily require a grant of immunity. Because she lacks any credibility it is incomprehensible that her cooperation and testimony could have done anything but hurt a prosecution. Not only was she on probation for Mr. Anderson’s 2010 death, she had three DUI convictions, and was arrested after Scott was killed because the drug recognition expert believed she was under the influence. Needless to say, the grand jury returned no indictment.
During his election Spitzer promised to stop giving deals to killers and third strikers in exchange for dubious cooperation. But that is exactly what Spitzer did in this case. He turned his back on justice and he turned his back on his own promises by inviting Mulford to be a cooperating witness. In doing this, he bestowed upon her the benefits from a grant of immunity. She is even using her status as a cooperating witness in her lawsuit against the DMV as he tries to regain her license to drive (or kill?).
Spitzer Promised Justice, But Delivered Injustice:
In light of what we have learned about the “investigation” into Scott Clark’s death and from how Spitzer treated Scott’s widow, Christy, he is no victim advocate! Unfortunately, this case is no aberration but is emblematic of Spitzer’s vindictive nature! Nothing angered Spitzer more than comments that had been posted on the Justice For Scott Clark Facebook Page! He made that perfectly clear when we met in January.
It should come as no surprise that the OCDA is once again embroiled in scandal. Spitzer is fighting the court and rape victims as he seeks to dismiss rape charges against a Newport Beach surgeon in the Robicheaux case! In doing so, he offers the excuse that there is insufficient evidence to corroborate the victims. He completely ignores the reality that Robicheaux’s multiple victims corroborate each other and the significant quantity of GHB, the date rape drug, was found in the doctor’s possession. It is frighteningly similar to Spitzer’s and Orue’s justifications for first dismissing charges against Mulford and now refusing to file any charges in Scott’s death. It is even alleged in new pleadings in Robicheaux that Spitzer was colluding with the defendant’s attorneys(4). As we all know, sunlight is the greatest disinfectant, is that why Spitzer prefers to keep everyone in the dark?
Spitzer is also embroiled in an evidence scandal arising from Sheriff’s deputies failing to book evidence until long after their reports said it was booked. Not surprisingly, that scandal seems to have raised its head in this case. Some of the most important evidence relied upon by the accident reconstruction experts was obtained on February 1, 2017 and was reportedly booked that day. But it was not booked into evidence until December 26, 2019, almost three years later!
Mr. Spitzer made illusory promises to Christy and to Orange County voters, promising justice, promising transparency, and promising an end to the scandals. He has failed to deliver justice. He has failed to deliver transparency. And significant scandals already rise under his watch. Orange County is still in need of a person of integrity to take control of the Office of the District Attorney. Todd Spitzer is not that person!
Richard T. (Rick) Welsh
Richard T. Welsh, Esq.
1.Those very same words have been used by Spitzer’s OCDA as they attempt to dismiss multiple rape charges against a Newport Beach surgeon. Victim’s Opposition to Motion to Dismiss filed May 28, 2020 in People v. Robicheaux, 18HF1291.
2.Those very same words have been used by Spitzer’s OCDA as they attempt to dismiss multiple rape charges against a Newport Beach surgeon. Victim’s Opposition to Motion to Dismiss filed May 28, 2020 in People v. Robicheaux, 18HF1291.
3.Mulford’s attorney, however, said exactly that in a declaration signed under penalty of perjury which he submitted to the court to aid Mulford’s attempt to regain her driver’s license!
4.Victim’s Opposition to Spitzer’s Motion to Dismiss filed May 28, 2020 in People v. Robicheaux, 18HF1291.
Orange County District Attorney Todd Spitzer
Orange County Sheriff’s Department, CA
OC Board of Supervisors
Los Angeles Times
OCRegister
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