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1. I Suppose That I Should Write About This
Former OC Supervisor and State Assemblyman Chris Norby was arrested last night on charges of domestic violence and child endangerment, booked into Fullerton Jail, released on $10,000 bond, and presumably spent the rest of his night somewhere else than at home with his wife and family. I won’t be gloating about this; as yet, I have no basis to do so even if I were so disposed. But given how our paths intersected during over the course of the 2012 election cycle, I think it’s appropriate that I write about that today.
My interest in whether Chris Norby had committed an act of domestic violence in 2010 greatly influenced what many people in Orange County know about me and how they think about me — due to strong reactions from various critics, including one that purchases a whole lot of newsprint ink. I can now talk about some of it that I previously could not. (Some of it I can’t and won’t discuss; as an attorney I have lasting duties of confidentiality. In any event, nothing told to me in confidence included more than hearsay — I don’t recall ever personally meeting or speaking to Martha Norby directly or through a direct intermediary — but my reaction to what I heard secondhand was enough to motivate what happened next.)
As a candidate for Orange County District Attorney, an election that will be decided on June 3, I realize that my story is probably of some general interest. Voters are supposed to be judging my character and competence — as well as those of my opponent. I’m also very aware of the problem of grandstanding — something for which I have criticized my opponent and something that I want to avoid. Luckily for me, most of what I have to say simply repeats statements that I made at the time. Some people will think that they show me in a good light; others won’t. What they will tell you is something about my character and my values and how I think about the legal system and problems of prosecution– something that voters ought to be able to know.
2. My “Obsession”
In the month before the Nov. 6, 2012, election, in which I was running (albeit not all that hard) against State Senate Minority Leader Bob Huff, readers were treated to a revealing caricature of me in the print version of the October 7 OC Weekly of a type that one really does not want to see (but that one’s friends may find amusing.) While I had expressed my disagreement with the Weekly’s “a pox on both major parties” editorial stance — I think that they have fair basis to pox much (by no means all) of the County Republican Party and some (by no means most) of the County Democratic Party, I was assured that my graphic attempted humiliation was not motivated by that.
As I failed to take the hint and act humiliated, the Weekly’s grievance was later clarified, emphatically, by a story two days before the election with the headline “Greg Diamond Wants To Be A California State Senator But He Can’t Stop Obsessing About Another Man’s Marital Relations.“ (Frankly, I’d prefer that people not click that link — I think that the story was highly unfair, although as I’ll explain below I accept that the author thought that tearing me a new orifice was the moral thing for him to do — but in the interest of full disclose I think that the link needs to be there. If nothing else, it shows the price I’m willing to pay to do what I think is right.)
One thing that you should know about me — and I see this as a strength for a District Attorney, though those who judge a DA only by how many accused person they put behind bars might not — is that I can almost always see and understand the other side of an argument, even when it’s an argument aimed against me. Many people in politics are ruthless bastards who will dig under any rock to try to find material that they can fashion into vicious and misleading attacks on their opponent. The author of that article, Scott Moxley, pretty clearly thought that I was that type of person: as it happens, I’m not.
Moxley, though, couldn’t know that about me — and so he went after me hammer and tongs. I didn’t like it, I didn’t think it was justified — but I could understand why he thought it was appropriate. If I had been sniffing around Norby’s marital relations either for the fun of it or simply to score political points with sniggering insinuations, then his bashing me would be perfectly justifiable. And that’s clearly what he thought I had been doing.
In fact, though, I was responding to cries for help that were being send out, somewhat erratically and with indiscriminate targeting, from Chris Norby’s wife Martha (or Marta) to her friends and associates (and not even always close associates) about what she alleged was happening within her home. She was widely broadcasting, on a person-to-person basis, her desire for help. Some of those pleas reached me. That does not mean that they were true — it just means that they were expressed.
This was not just one complaint, or a repetition of just one accusation of just one event. The people to whom she spoke directly were apparently all over the political map. (Because it’s now widely known that she was doing this, and because she has now officially lodged a complaint, the mere fact of it is not something that I think still needs to be kept in confidence.) Those friends, knowing that I’m an attorney with the ability to both investigate and maintain confidentiality, and sometimes knowing of my interest in domestic violence prevention, came to me for help. I agreed to try to find out the truth. Soon enough, that blew up in my face.
I want to emphasize one thing right here: even today, after this arrest, I do not presume that Chris Norby is guilty of anything. I have my opinion of the likelihood– but we’re at the point where mere opinion no longer matter.
Norby’s defenders (who include some people with whom I’ve become good friends since that time), believe that what Norby is quoted as saying in the Register article linked above (and freely available) is true: “Norby said his arrest was the result of “false accusations” made by his wife. He declined to go into specifics, but described himself as a victim.” Could be. It’s worth finding out.
Our frequent commenter David Zenger – someone with whom I now have a contentious and strained relationship when it comes to partisan politics, but whom I deeply respect for the commitment he and I share to opposing public corruption — made the argument in defense of Norby with great force this morning in a comment to Art Pedroza’s story on the arrest:
Marta may be intelligent on some level, but she is a complete nut. This speaks volumes about Norby’s judgment but I really doubt there was any violence (except from her). This happened before and the cops leaked the story to the Voice of OC.
Zenger could be right — although I strongly believe that the social scientific evidence shows that in general these sorts of accusations, especially from a vulnerable immigrant woman with young children (and now one adolescent daughter) like Marta, usually have some substantial basis in fact. But Marta could be an exception, and I don’t mean that anything but earnestly. In my work with the feminist community on such issues over the years, I have often gotten flak because while I am deeply committed to opposing domestic violence I’m not automatically prepared to take the accuser’s word as true. I’m simply committed to taking it seriously and to act on it if it stands up to scrutiny.
I’m also committed to the DA’s office, starting at the top, showing respect to the accusers and accused — just as the best cops do on the beat. As DA, I will be prepared to investigate with an open mind, without fear or favor to anyone — and to ensure that anyone under my leadership does likewise. I will also want to adopt best practices from other jurisdictions as to how best to combat domestic violence, child neglect, and elder abuse within the bounds of the state and federal constitutions — and of ethics.
So I acknowledge that Marta may be “a complete nut” — though I would never use that sort of insulting and dismissive terminology — but I sure would not start with that as a premise or as a basis to dismiss what she has to say.
I’d also note that such ad hominem attacks on an accuser’s credibility don’t prove her accusations false. Marta Norby may (or may not) be erratic and prone to exaggeration and yet still be telling the truth in this instance. To deny anyone a presumption that they may be credible based on their supposed “nuttiness” is to give anyone who would persecute them carte blanche to do so because — in the horrifying words we’ve heard from so many real and fictionalized depictions of abuse — they’re told that “no one will ever believe you over me if you report that.” (And do you know what domestic violence can do to someone — especially someone with kids to tend to, living in a foreign land? It can make them seem erratic — even nutty.)
As DA, I would stress the need to take accusations, even from those with less power — or maybe even especially from those with less power — seriously enough to warrant a real investigation. Here’s an uncomfortable example: if a prostitute claims that a police officer forced her to “give him a freebie” in order not to be arrested– something that they claim is routine and about which I have no personal basis to offer an opinion — then I don’t intend to dismiss it, as some might, simply because “he’s a cop and she’s a whore, so he’s obviously more credible.” If you take that attitude, then you lead the worst cops into temptation because they can act abusively with impunity — and you put the other cops in a position where they have to choose between loyalty to the force and loyalty to the truth.
I have great respect for police who do their job well — who understand that being licensed to use a gun, a taser, a nightstick, and even one’s fists to defend the interests of the state is not only an awesome privilege but an awesome responsibility. I want all of the police who can’t live up to that ethical burden gone — because there are plenty of people out there who could replace them and do the sort of job that we have the right to demand.
For a District Attorney simply to say that they will be willing to investigate without precondition or strong presumption has a tremendous deterrent effect on potential lawbreakers — be they the minority of bad cops, or corrupt figures in city and county government offices. The prospect of really serious investigations, by persons from outside the county as may be necessary, into accusations against those wielding public or private power is enough to stop a lot of potential wrongdoing cold. It can also impart the sort of faith in the system that fosters public cooperation with the police and the prosecutors — something that is desperately needed, far more than rousts and shows of military-level strength — that we need to clean up the county.
Reliable investigations — ones into which the public can truly put its faith — are critical. I thought about this, in considering whether to run against someone who may have millions of dollars more than me at his disposal, in the context of the recent accusations against Miguel Pulido. (I use him as an example not because I presume his guilt, but because he’s prominent, in the news, and provides an example discuss public faith in the DA’s office.)
If I — despite my being a Democrat like him — commissioned and monitored a serious and thorough investigation of Pulido’s real estate deals, I think that if I cleared him people would believe that he really did do nothing at all wrong. I say that because I would love to prosecute him — or any Democrat — if it truly does appear to be engaged in corruption. I wouldn’t be “hurting my party”; having lawbreakers in my party hurts my party — as well as our government overall.
Similarly, I would love to prosecute any Republican engaged in corruption because I don’t want them in charge of their party, or our government. (For third-parties and NPPs, just the “I don’t want them in charge of our government” part applies.) If you let people who play crooked compete with those who play it straight, then even people inclined to be good learn that in this environment you’re better off playing it crooked — or at least looking the other way when others do so.
I’m going to do my absolute best as District Attorney to stop that poisonous tendency.
In contrast– and I’d love to see this debated widely — I do not think that a Tony Rackauckas commissioned and monitored investigation of Miguel Pulido (among many others, including most Republicans) would be taken by the public as conferring “a clean bill of health.” I think that it would more likely be met with a “well, it’s Rackauckas, what do you expect? He almost never goes after anyone with any power unless he has to.” Readers, if you think that I’m wrong about this, feel free to put yourself on the record to the contrary so that other readers can speak to you directly about your opinion! (Anonymous comments may not survive in this post, folks.)
When it comes to prosecuting official corruption, our DA’s office is generally considered to be a joke. (This has been noted in the comparison between State Senator Rod Wright of Los Angeles being convicted of felony perjury charges in Los Angeles County for falsifying his residency on official forms (both as a voter and as a candidate) and State Senator Mimi Walters of Orange County apparently doing the exact same thing – perhaps even more egregiously — and facing no apparent threat of prosecution. Beyond that, based on what I have seen in both the government accountability and the employment law portions of my practice (and in discussions with other attorneys), the general sense is that the DA’s hands-off stance — and least until his hand is forced — provides no real deterrence to wrongdoing.
Case in point: DA Rackauckas tried to suppress the devastating audiotape of the Kelly Thomas killing — and then, only when it was leaked, he decided to go ahead with the case. However, he went ahead with what should have been a strong “excessive use of force” case against both officers and possibly manslaughter as well by making the headline a murder charge against Officer Manuel Ramos based on a theory so loopy that even members of Kelly’s Army have found it unconvincing when I explained to them how it would be evaluated legally.
I’ll make this a long aside: there might have been a murder charge to be brought against Ramos, but it would have been based on speculative facts about a conspiracy between those beat cops and the Slidebar (and possibly other businesses in the vicinity of the Fullerton Transportation Corridor) to deprive Kelly Thomas of his civil rights by trumping up a reason to arrest him and remove him from the property, potentially taking him outside of the shelter of police immunity. Supposedly this possibility was investigated — but it never made it into Rackauckas’s case. Maybe they found nothing — in which event the question is how hard they looked and how open they were to evidence. (Maybe they found something relevant, but didn’t like it.)
So instead, Rackauckas went forward with the obviously weak theory that Ramos’s statement that his fists were going to beat Thomas up — as reflecting an intention to commit murder rather than simply to intimidate him, with the threat of force, into compliance. (That use of intimidation is not a good thing to do to someone you know is a schizophrenic — especially one who has good reason to think that he may be able to outrun you.)
Rackauckas’s reliance on this theory in a murder case is part of why some critics complain that he intentionally booted the case — an allegation I’m not prepared to adopt. If the theory was weak enough, and the charge made only to grandstand to the public (and make them forget his trying to suppress the audiotape, then maybe that explains the question of why he had to try to scrape off of rust and prosecute the case personally: because no one else wanted to do it. Meanwhile — the weak murder case detracted from the manslaughter case and especially from the excessive use of force case against Cicinelli.
For those who have wondered about my qualifications for office, given that I’ve only fought corruption as a civil plaintiff’s attorney rather than as a criminal prosecutor (although I did do some white collar crime defense work in New York), bear in mind that I wrote about this case from the start, as it was unfolding — and that I got it right while Rackauckas blew his analysis of it. I don’t need polished courtroom skills as the guy in charge — but I do need to know how to analyze and spot the weaknesses in a big case and when to send subordinates out to fix them. I have no doubt that I can run rings around my opponent when it comes to that — especially because I just don’t care how things play to public prejudices, but only in how to properly enforce the law. (If I don’t get re-elected because I’ve done my job right, I’m fine with that. I’m not fine with doing the job wrong. I’ll have much more on that topic on Monday.)
So, back to that “obsessed” headline.
I’ve never been “obsessed” with Chris Norby’s private life, especially for the purpose of political embarrassment. My obsession is with protecting the weak and vulnerable and with honestly and effective serving justice. As “qualifications for Orange County DA” go — a topic about which I plan to write for this Monday — that comes second only to having a license to practice law in California.
I am obsessed with cleaning the corruption and the unconstitutionality out of Orange County. (Two court decisions finding practices the DA crows about unconstitutional in a matter a few months? Really?) Many people in Orange County can tell you that I’m a bulldog when I think I’m doing the right thing for the public good. I can say “no” to anyone who warrants it — as well as some things I won’t write here.
3. My Investigation — and Its Consequences
I had taken exactly one step to investigate at the time that the article prompting the Weekly story came out: attempt to confer with one or more alleged witnesses to the 2011 altercation between Chris and Marta Norby and to obtain photos of alleged physical injury.
I had also abandoned that investigation because the City of Fullerton wouldn’t cooperate. Looking at their reasoning — this was before I started doing Public Records Act litigation, as I do now — they had a good point about it falling into an exception. I thought that maybe there was a counterargument to be made — but I had neither the time nor money to pursue it. So I just let it rest.
And then someone — one of the pseudonymous posters at Tony Bushala’s influential (but now on hiatus) blog, “Friends for Fullerton’s Future” — dug it up. They claimed to have done a Public Records Act request of other people’s Public Records Act requests — it happens, but rarely quite so conveniently times — and tried to use it as a means to attack Sharon Quirk-Silva, Norby’s opponent in that Assembly race, at whose behest they thought I was acting.
There was only one problem with that theory: it wasn’t true. Sharon had had no idea that I was going to turn in such a request. I vaguely recall it not pleasing her, that or we never discussed it. I sent her a note of apology if my freelancing had caused her any problems — and explained that I had done it because I had heard these various secondhand and third-hand reports about Norby and I personally wanted to know the truth.
I have a longstanding interest in the problem of domestic violence — one going back, believe it or not, to high school, when my politically active feminist high school girlfriend “raised my consciousness” (as we used to say in the mid-’70s) but good about issues I’d previously not much considered, including the then-only-emerging topic of women’s self-defense. (No, she never had to use it against me.) I had occasionally been involved in the issue as an activist; this type of threat was part of what I studied as a social scientist in graduate school doing my dissertation (though I haven’t read my dissertation in years and can’t remember whether any of that material (made the cut”); and, most importantly, it was the subject of the “note” (a student-written article) that I wrote for the Columbia Law Review, where I was a Senior Editor there, in 2002.
(Here, I’ll save Rackauckas’s opposition researchers some trouble: the citation is 102 Colum. L. Rev. 729. I’m happy to debate any part of it — though it’s been years since I’ve read it.)
The article addresses the problem of battered women who kill their attackers. (This can be those attacking them personally or those attacking their children; the self-defense justification is fundamentally the same.) My thesis was that protracted domestic violence often creates an environment that explicitly met most of the criteria for “kidnapping” under the Model Penal Code — and where it didn’t explicitly meet that criteria, the individual circumstances that came closest to being viewed as justifiable homicide were those that met the spirit of those other elements.
In other words, I argued that existing kidnapping law could be a good starting place to analyze the legal problem of battered women who kill. This was the first time I found that anyone had made that legal argument — I don’t know if anyone has ever used my analysis to guide a defense case in the dozen years since, but I do know that at least a few scholars have cited it.
In the course of researching and writing that article, I had read horror stories of what some women (occasionally men, but usually women) had gone through — and how they were victimized a second time by the court system because it raised the compelling consideration of “not declaring open season on men” far above the also compelling consideration of allowing women to extricate themselves from situations where they had good reason to think that their life was in danger over time, even if the moment that they could best prove it would be the moment when they were least able to exercise self-defense. (For example, while being choked to death.)
So, yes — I take domestic violence (and rape) extremely seriously — and I’m one of the people who will get prickly if and when other men around me joke about it or take it lightly. (I think that that’s a good characteristic for a District Attorney.) So I didn’t need any other motivation to investigate whether Norby really did this or not beyond satisfying my own curiosity. It was not idle curiosity; it was determined curiosity.
What I really wanted to happen was for him and Marta to waive any confidentiality regarding Marta’s police report — the one that she later recanted. (Some have argued that her recanting itself proves her lack of credibility. To them I say: go learn something about domestic violence.) Then people like me could try to talk to the witnesses and evaluate any photographic evidence. If Norby was cleared, fine. If not — the public needed to know.
So when the FFFF folks (some of whom have since become my friends, as most of them are both anti-corruption and anti-excessive force) came after me in a pack for wanting to investigate, I stood my ground. Every time (or at least it seemed that way) they would bring it up, I would renew my call for Norby to agree to the release of these files because the public needed to know the truth about him. All of these discussions remain visible in FFFF’s archives — and give people ample opportunity to assess my character, analytic skills, temperament, and (on good days) my sense of humor and (on bad days) my ability to take a punch. (These too are pretty good characteristics in a District Attorney.)
FFFF was a hotbed of pro-Norby (despite an undercurrent of disdain for him) and anti-Quirk-Silva political activism at the time — but it was also a hotbed of support for Travis Kiger over Jan Flory in the Fullerton City Council race. I was (as she will confirm) Flory’s biggest online defender — alienating myself quite a bit from my friend Vern — because I thought that she was good enough on these issues and much better on issues related to the Costa Mesa-fication of Fullerton. (Comparing the state of Fullerton and Costa Mesa today is the best argument for why I still think that I was right.) FFFF was a sharp and often-brilliantly written blog — the Weekly‘s best blog of 2011, as I recall — and the Fullerton recall race showed that it had a great deal of sway in turning elections. (People who aren’t familiar with political blogs have no idea how influential they can be. Politicians, by and large, get it.)
The more that discussion of the race between Norby and Quirk-Silva race was met by my demands for disclosure, and Norby’s lack of response, the more the discussion there turned to the Kiger-Flory race. (Others candidates were also part of it, but those two were the main figures of discussion — and in the end Flory beat Kiger by a small handful of votes.) The irony is that had FFFF not raised the topic of my Public Records Act request, I would not have brought it up — and then I would have been in no position to ask the Norbys to agree to release the police report.
While it hadn’t been my initial purpose, making it hard to defend Norby online and serving as a foil for relentless attacks against Flory probably did substantially help Sharon, as it would have been hard for her to survive the onslaught of abuse that FFFF had helped direct towards “the Three Bald Tires” that had long propped up the Fullerton Police without asking any pointed questions of them. Pardon me for being self-serving, but they would not have gotten away with that had Orange County had a District Attorney who would really take seriously charged of police abuse of force even without a chilling video and audio of the killing of a homeless man being released. This is the sort of behavior — right down to Ramos’s initial and improper use of intimidation — that a county’s District Attorney is supposed to deter. And, if elected, I will.
FFFF was highly respected by writers at the Weekly, as well as by many others including Vern (and, when it came to their investigative reporting, me), and the Weekly came down on me like a ton of bricks. This piece is already too long, so maybe I’ll relive that experience another time. It was … spirited.
4. The Timing of These Charges
I want to refer people to the Voice of OC article on this matter, because it includes some strong denials by Norby and statements by his friend, Supervisor Shawn Nelson, who paid his bail. Some people may dismiss Nelson’s statements out of hand; I don’t. But neither do I credit them. (Anytime one man says that another man “would never hit someone,” I get apprehensive, because this sort of thing gets said often in cases where domestic abuse is later proven to have occurred. No one else except (and this is deeply troubling) the children knows what has gone on behind closed doors.
Nelson’s statements certainly contradict things that I heard second-hand — but that doesn’t make them wrong. I don’t presume that people always necessarily tell me the truth. I do think that there are plenty of people around that neighborhood who ought to be interviewed — and who ought to speak up if they are “percipient witnesses,” meaning that they saw, heard, smelled, or otherwise perceived anything relevant to the Norbys’ conflicts. I wish that we had dug down into this 2-1/2 years ago — or even 1-1/2 years ago, when my concerns about it became publicly known via FFFF.
Even though I have been concerned about Norby’s actions in the past, I do have one concern — something conveyed to me by Vern while I was writing this article. I’m concerned about the timing.
I don’t know exactly when this latest conflict — I don’t have to say “alleged,” because they blame each other — that led to Chris Norby’s arrest occurred. I do know that the arrest comes at a time when Norby has apparently been considering another run for City Council. On Council, he’d be expected to take a position critical of the Fullerton Police Department. I would not have expected to support him for that position — because of issues having little to do with policing — and I’m much more optimistic (given the level of information I have) that Chief Dan Hughes really is taking reasonable steps towards reform of the FPD. I have my strong arguments with the lack of police review — but a District Attorney who is really willing to look into charges seriously can render such a deficiency irrelevant while he or she is in office.
So here’s my concern: despite not being a fan of Norby myself, if I found that people in Fullerton were timing such an arrest to meddle with the political system and its ability to provide oversight over them, I would come down on them, friend or foe, with full force. Leaks of publicly held confidential information for the purpose of sabotaging political enemies are wrong. That’s part of the big problem with the NSA’s recent activities. I understand why journalists will publish stories on them; their interest is in public information rather than proper process. But it can be abused.
In the respect of demanding honesty, rather than loyalty, from my friends and my subordinates, I think that I’m more qualified to be DA than is Tony Rackauckas. And that qualification matters most — more than one’s personal ability to prosecute a case when we have plenty of well-qualified prosecutors who do so full time — to the person who sets the policy and tone of the office. I think that I’ve shown good character and a devotion to finding the truth at whatever personal cost.
In the Norby’s case and all others, I’m happily to let the truth be my guide. And I am willing and eager to foster the efficient and effective search for the truth — without fear or favor to person, party, or faction.