Appellate Court Throws Out Perjury Charge Against Ex-Capo Assistant Superintendent

A retired Capistrano Unified School District assistant superintendent indicted in 2007 on allegations of helping to create an "enemies list'' of political opponents was cleared Tuesday by an appellate panel.

Susan McGill had a conspiracy charge against her dismissed last year, and the appeallate panel ruled that she should be cleared of one remaining count—a felony perjury charge.

Earlier this month, the panel led by Presiding Justice David G. Sills, who is officially stepping down Wednesday, raised the possibility of McGill being the victim of prosecutorial misconduct.

But Sills, who wrote the opinion with Justices William Rylaarsdam and Eileen Moore concurring, concluded that while McGill did not get a fair chance to defend herself against allegations of lying to a grand jury, prosecutors were not guilty of misconduct and sanctions would not be granted.

The ruling caps off an investigation that stemmed from a failed attempt in 2005 to recall the Capistrano Unified School District trustees. The recall was initiated when parents objected to the construction of a $38 million administration building—mockingly referred to as "Taj Mahal''—while many students attended classes in portable classrooms.

Retired Capistrano Unified Superintendent James Fleming was indicted in 2007 over creation of the so-called enemies list of political opponents. The charges included misappropriation of public money in an effort to defeat the recall election, but all of the counts against Fleming have been thrown out, including the .

Prosecutors appealed the dismissal last year of two charges against Fleming, but the appellate justices determined that he did not commit any crimes when he collected the names of the recall supporters from the Orange County Registrar of Voters.

Orange County prosecutors alleged that McGill lied to a grand jury, which was investigating Fleming, when she said she did not know about or help make a report on the list of recall supporters.

A conspiracy charge against McGill was thrown out Feb. 26 of last year.

McGill and the school district's then-public relations officer, David Smollar, went to the  Registrar of Voters office to look at the names on a list of recall supporters after the registrar declared there weren't enough valid signatures to put the recall on the ballot.

The justices concluded that Smollar did most of the work, taking down the names and giving them to Fleming. McGill and Smollar did not have a friendly working relationship and McGill assumed Smollar would give the names to Fleming, the ruling states.

The justices, in considering Fleming's case, ruled there was nothing illegal about compiling the list.

But during the grand jury investigation of Fleming, when prosecutors "badgered'' McGill with questions about who gave Fleming the list, they eventually decided McGill lied to grand jurors about her involvement in the list.

Smollar, though, was never called as a witness and grand jurors should have asked to question him, the justices ruled.

"The grand jury had the duty to make its own credibility determination as to whether McGill really had knowingly lied before handing down its indictment, and Smollar's testimony would have undoubtedly helped that credibility determination,'' Sills wrote.

The grand jury also failed to ask McGill to return and explain the allegation of lying, the justices noted. In fact, another grand jury should have been convened to consider the perjury allegation, the panel ruled.

Orange County prosecutors later explained to the appellate justices that they did not call Smollar to testify because they thought he would make a poor witness due to his bad working relationship with McGill.

The justices recently raised the possibility of prosecutorial misconduct when McGill's attorney received information from a district attorney's investigator that Smollar had given the list to Fleming. The statement from the investigator did not surface until 2009.

"On the surface, it looked bad,'' Sills wrote in the opinion.  "And so we determined to give the district attorney's office the same chance it never gave to McGill—the chance to explain what, on the surface, appeared to be a very damning case of concealing evidence, and why sanctions should not be imposed.

"But having received the district attorney's office's response, we now give a gentle answer,'' the opinion states. "What seemed at first to be a case of bad faith turned out to be a simple case of legal error, not prosecutorial misconduct, and not appellate level bad faith.''

The deputy prosecutor handling the appeal was not aware of the potentially exculpatory evidence as he relied on court records, the justices determined.

"Second, both the appellate deputy and the trial deputies handling the
grand jury investigation honestly thought that there was no need to disclose
the investigator's recounting of Smollar's statements because, on balance,
there was plenty of evidence that `negated' the possible innocent explanations
of McGill's testimony,'' Sills wrote.

"I thinking that, they were, of course, in legal error,'' he added.

McGill's attorney, Kevin Gallagher, said his client was relieved.

"She's just very happy that it's over—justice has been done,'' Gallagher told City News Service. "She's suffered greatly over the past four years.''

Orange County prosecutors did not immediately respond to a request for
comment.

- City News Service