Ed Miller himself successfully prosecuted Jimmy “the Weasel” Fratianno, once believed by authorities to be the West Coast executioner for the mob.
IT IS THE LARGEST AND BEST-financed law firm in San Diego County. Its 569 employees include 186 attorneys and 64 ftill-time investigators scattered around eight offices from South Bay to North County. It maintains a special juvenile division, as well as departments exclusively devoted to litigating fraud, corruption, and narcotics cases. As many as fifteen former members of this firm have been appointed to the bench. Its top lawyer earns nearly $100,000 a year to administer an annual budget of $23 million. For the last seventeen years, this vast and influential legal empire has been run by the same man: District Attorney Edwin Miller.
Brian Michaels first went to work for Miller in the U.S. Attorney’s office.
To understand how Ed Miller ended up as San Diego’s top prosecutor, you have to go way back — as far as 1942, when he was a member of Newport Harbor High School’s championship football team. Miller, the son of an Orange County insurance salesman, was, by his own account, a member of a demanding clan.
Richard Huffman: Miller sits atop a “large government civil-service office."
His grandfather, Louis Miller, had been mayor of Anaheim in the early years of the Great Depression. His family, he says, was composed of “rock-ribbed Republicans.” As a young man, he was expected to produce — and produce he did. He was president of the student body and a member of the football, basketball, track, and baseball teams. His grades were good enough to win him an academic scholarship to Dartmouth.
1966. Miller in meeting with LBJ
Miller set out for Dartmouth in the middle of World War II and signed up for V-12, a program that allowed him to pursue his studies while training to be an officer in the U.S. Navy. At nineteen, he was commissioned, but by then it was 1945, and he never saw battle.
What Miller did see was a lot of other college campuses, to which he traveled as a member of the Dartmouth track team. One such trip took him to the College of William and Mary in Williamsburg, Virginia. There, during a sporting event that stretched over the spring break. Miller met a sorority girl named Barbara. The courtship lasted five years. The marriage, so far, has lasted thirty-three.
Nicholas Kasimatis says he backed Thomas over Miller because Miller was seen by many veteran prosecutors as an opportunist.
Miller’s Dartmouth degree and his uneventful stint in the navy would prove valuable assets in his assent to power. But first, there was a detour, a seven-year hiatus during which he began his working life, first as a drug salesman, then peddling everything from cosmetics to toys as an independent manufacturer’s representative working on commission. In December of 1953, the couple married, and within a year, they were back in Southern California, where Miller had decided to attend law school.
Judge Tony Maino III, an ex-Marine officer and former prosecutor for thirteen years under both Keller and Miller, was challenged by Miller’s prosecutors in every drunken driving case that came before him.
Miller chose UCLA. “I picked it specifically because the tuition was cheap,” he recalls. After graduation. Miller did not rush back into the life of a wage earner. Instead, he and Barbara headed for Europe, where they spent 1957-58, mostly with friends in Vienna. “It was right after the Hungarian Revolution,” he says. “So it was really an exciting place.” The foiled 1956 uprising against the Soviets dominated conversation; then the Soviets again flexed their muscles, launching the first Sputnik satellite into space. In the minds of many Europeans, the United States was looking ill prepared to carry out its role as guardian of the free world. The European trip left an impression on Miller that he carried back with him to the States in 1959.
Steve Casey gets himself in trouble with Miller because of his propensity to speak off the top of his head.
ON THEIR RETURN, THE Millers visited an uncle in San Diego — Harold “Dutch” Smith, a 1932 Olympic diving champion — who at the time was operating a men’s clothing store in La Jolla. Miller says he and his wife “fell in love with the place” and decided they would make San Diego their home. “So we drove down the coast one day and stopped at Del Mar,” says Miller. “We looked at a few places and found a duplex and made a lease agreement. Then I went on into town and met the city attorney, and he hired me on the spot.”
Although he originally planned to stay with the city attorney only a few years after he joined the staff in 1959 and then enter private practice, a succession of deaths in the city attorney’s office propelled him into the position of assistant city attorney. After two city attorneys died in office and the chief expert on utility rates left to join the state public utilities commission. Miller became a senior man.
During those early days of his public career. Miller’s consumer advocacy caught the attention of Lionel Van Deerlin, a television reporter for Tijuana’s XETV, then the local affiliate for the American Broadcasting Company. At about the same time. Miller defied the political tradition of his Orange County family and become a Democrat. He says it was not an easy decision, but the promise of the young and charismatic John Kennedy, coupled with the education he received from Europeans two years earlier, necessitated the change. “I just felt that the country went to sleep in the Fifties,” says Miller. “Nixon was simply an extension of that condition."
An advance was certainly in store for Miller, though it is difficult to conclude that he could have known that Van Deerlin would be elected to the U.S. House of Representatives in 1962 from a new, heavily Democratic district created by the 1960 census. (Van Deerlin had tried twice before without success to win a seat in the House.) But Miller’s switch to the Democratic Party and his professional friendship with Van Deerlin served him well. In 1966. when Van Deerlin was a third-term Democratic congressman. President Lyndon Johnson was called upon to name the first U.S. Attorney for San Diego. Johnson, however, was in a fix. At the time, both U.S. Senators from California were Republicans; since there was no senior Democratic senator from California for advice on the appointment, Johnson turned to the California delegation in the House — and to Lionel Van Deerlin.
It was not just Miller’s reputation as a consumer advocate that attracted Van Deerlin. He needed a qualified Democratic attorney to recommend to LBJ, and after just seven years in the city attorney’s office, Miller became the first-ever United States Attorney for the Southern District of California in San Diego. Miller, still a registered Democrat today — but not active in party politics — has a commemoration of his appointment in the conference room of his office suite on the fourteenth floor of the Wells Fargo Bank Building downtown. It is a piece of memorabilia hung among a group of photographs showing Miller with a variety of political greats: a black-and-white photo of himself, Johnson, and former U.S. Attorney General Ramsey Clark. There stands Miller, opponent of former California Chief Justice Rose Bird, a prosecutor with eleven pending death-penalty cases, an advocate of drug-possession laws long abandoned as too Draconian for a civilized society, with the founder of the Great Society and his attorney general.
WHEN MILLER TOOK over the newly created office, most of the federal prosecutions in Southern California were for crimes associated with the proximity of the international border: immigration violations and drug smuggling. He moved quickly to change that. While still maintaining a tough position on traditional border crimes (he sent people to federal prison for mandatory five-year sentences for possession of “any quantity” of marijuana). Miller also launched an attack on organized crime and gambling, taking on some of San Diego’s most influential power brokers in the process.
Miller himself successfully prosecuted Jimmy “the Weasel” Fratianno, once believed by authorities to be the West Coast executioner for the mob. Assisting Miller in this undertaking was a young member of the state attorney general’s staff — Richard Huffman. Fratianno, who operated an Imperial County trucking firm at the time, had long proved elusive to authorities, who so far had been unable to prove their suspicion that the half dozen or so people who had disappeared while last in Fratianno’s company had, in fact, been murdered. Especially galling was that the reputed mobster had federal contracts for highway construction. But those contracts were the key to Miller’s prosecution. Fratianno claimed that each of his drivers was an independent contractor doing piece work, and he paid them below the rate required by an obscure federal law enacted at the behest of organized labor. Miller seized on that obscure law and used it to go after Fratianno in much the same way that federal prosecutors decades earlier went after Al Capone for income-tax evasion. Because Fratianno was such a sought-after target in law-enforcement circles. Miller’s successful prosecution was considered quite a coup. But his elation was short lived. Fratianno was fined $10,000, placed on probation, and remained a free man.
In 1968 Miller’s federal prosecutors took aim at even bigger game, the influential and well-heeled Alessio family, which had close financial and political ties to the even more influential C. Amholt Smith. Smith and John Alessio, head of the Alessio empire, were political and financial partners. Between them, they owned valuable properties all over San Diego, including the Westgate Executive Hotel and Westgate Plaza Hotel, the Fashion Valley Shopping Center, the Westgate-California Tuna Cannery, the Yellow Cab companies of Los Angeles and San Francisco, the San Diego Padres, San Luis Rey Downs, and a tuna fleet managed by National Terminal. C. Arnholt Smith and John Alessio were the power brokers in San Diego, known not only for the overwhelming extent of their political influence but also for their philanthropic endeavors.
Alessio was an associate of Smith in a firm called Westgate California Enterprises, the umbrella company under which most of their property was organized. He was also executive director of the Caliente racetrack in Tijuana. There, Alessio’s brother, Russell, worked as manager of international bookmaking, controlling bets from all over North America. One day, as Russell Alessio was crossing the border to return to his El Cajon home, he was stopped and arrested by federal agents. Although Miller suspected Russell Alessio of more serious crimes, he was forced to base his prosecution on another peculiar statute because of a problem with the protected witness allegedly created by San Diego police and District Attorney James Don Keller. Alessio was subsequently prosecuted and convicted of interstate travel in aid of racketeering enterprises.
“During the time that I was the United States Attorney, it became very clear to me that San Diego was ripe for a change in its power structure,” says Miller of his decision to run for district attorney. “I felt that C. Arnholt Smith and his sometime partner, John Alessio, were dominating the political arena in this community, and I felt that that dominance reached into the district attorney’s office,” says Miller, whose suspicion that the district attorney was dominated by the men was based, in large part, on what he considered the improper intervention of the D.A. in a federal bookmaking case being built against Russell Alessio. The feds had secured a witness who claimed to have seen Russell Alessio and suspected bookie Floyd Smith passing money at an El Cajon restaurant. In order to make their case, federal prosecutors sought and won a judge’s grant of immunity for Floyd Smith in exchange for his cooperation before the grand jury. But after Smith’s appearance before the federal grand jury, San Diego police moved in and arrested him on state charges. The result was that Smith became a less effective witness for the feds, believing that his grant of immunity had been compromised. Miller publicly accused District Attorney James Keller and the police of trying to frustrate the federal investigation because it embarrassed the Smith-Alessio interests. When Miller challenged Keller on the issue, Keller said he had “neither honored nor accepted the immunity.”
Miller and his associates in the U.S. Attorney’s office had a twofold reason for going after the Alessios. First, Miller believed that Keller and the San Diego police deliberately ignored evidence of bookmaking activity in the city associated with the Alessios. Second, Miller believed that illegal gambling profits were being funneled through the Tijuana racetrack and back into the United States to fund the family’s widespread business interests.
Keller was retiring after twenty-four years in office when Miller decided to seek the D.A.’s post himself. Keller’s heir apparent was his second-in-command, assistant district attorney Bob Thomas, a career prosecutor with no political experience. The animosity that developed between U.S. Attorney Miller and District Attorney Keller would become an issue in the Miller-Thomas race. The two regularly traded charges about the integrity and effectiveness of the two offices they represented. Miller accused the D.A.’s office of selective prosecution designed to protect establishment political interests. Thomas accused Miller of being soft on drug prosecutions.
According to Municipal Court Judge Nicholas Kasimatis, who worked for Keller as a deputy district attorney and supported Thomas in the election, Miller’s suspicions about Smith were correct, even if his suspicions about Keller were wrong. Keller, says Kasimatis, was buffaloed by Smith’s widespread civic endeavors. “He was totally naive about C. Arnholt Smith,” says the judge. “He just thought the world of C. Arnholt Smith.” In retrospect, says Kasimatis, a Thomas victory would have been “a disaster” in terms of public confidence in the D.A.’s office. Smith, he says, gave more than $200,000 to the Thomas campaign, just as his own financial empire was beginning to unravel under federal scrutiny. (Miller says that his own campaign chest totaled about $176,000.)
Kasimatis says he backed Thomas over Miller because Miller was seen by many veteran prosecutors as an opportunist, with little in the way of prosecutorial experience. “He was like an intruder coming in, like someone who just wanted the job,” says Kasimatis. (Kasimatis, who stayed on and worked another twelve years in the D.A.’s office under Miller, says that after the election, “I changed my opinion right away. I had some misperceptions about Mr. Miller.”)
TO HELP HIM IN HIS FIRST-ever run for office, Miller sought the advice of fellow Dartmouth alumnus John Van de Kamp, now the Democratic Attorney General of California. The two had become acquainted three years earlier when Van de Kamp worked in Washington at the executive office for U.S. Attorneys and Miller was U.S. Attorney in San Diego. In 1970 Van de Kamp had just finished a stint as campaign manager for Jesse Unruh when he learned of Miller’s plans.
“I ended up spending most of the last two months of the campaign down there,” says Van de Kamp. ‘‘I was not the official campaign manager, but in some ways I was the de facto campaign manager. I was with him every step of the way.” Van de Kamp, who had the experience of several campaigns behind him (including his own unsuccessful 1968 bid for Congress), checked the political turf and concluded that the odds were against Miller. What made the difference, he says, was Miller’s ability to fashion a bipartisan coalition of supporters who were able to come up with the money necessary to make a serious challenge.
Miller’s financial backers, says Van de Kamp, told him not to worry about the cash — they would raise it. All Miller had to do was campaign. Among those that Miller names as his primary financial backers for the 1970 campaign were developer Harvey Furgatch; Robert O. Peterson, head of the Jack in the Box fast-food chain; Dick Silberman. an associate of Peterson’s who helped him mastermind a takeover of the board of directors of Southern California First National Bank; banker Malin Burnham, who officially managed the Miller campaign; Aleck Cory; and Tom Hamilton. Peterson, Silberman, and Burnham were considered by some observers at the time as the emerging “new establishment” in San Diego politics, supporting “liberals” like Maureen O’Connor (who later married Peterson) and Jim Bates when they ran for city council.
While Van de Kamp cites Miller’s financial backers as a key in the campaign, Kasimatis points to a last-minute, full-page ad the Miller campaign took out in a local newspaper the day before the election. A few days earlier, the D.A.’s office had announced that the county grand jury had returned indictments against several high-ranking city officials, including members of the city council, in an alleged kickback scandal involving the San Diego Yellow Cab Company. Miller suggested in his ad, says Kasimatis, that Keller timed the indictments to coincide with the election. “I think that ploy, just before the election, raised questions in people’s minds,” says Kasimatis — enough questions in enough minds to lift Miller to an upset over Thomas.
In the district attorney’s office, however, Miller found virtually no support. One former prosecutor who worked for both Keller and Miller says he doesn’t think a single deputy district attorney of the fifty or so in the office supported the interloper. The ship that Keller and Thomas ran was a tight one. The office featured linoleum floors and battleship-gray walls.
Coupled with the drabness of the decor was an insistence on uniformity and drabness in the personal appearance of the lawyers who worked there. Keller, for example, threatened to fire one deputy district attorney if he did not shave off his mustache. Its members were typically Republicans of the right, and their specialty was prosecuting traditional criminals. Some prosecutors, insiders say, were recruited by Keller on the strength of their past athletic accomplishments. Another tells a story of a young prospect showing up for an interview with Keller in his army uniform. “Can you gas ’em?” Keller is said to have asked.
“It was rapes, robberies, and murders. That’s all we prosecuted,” says Steve Davis, who worked for Keller about fourteen months, then for Miller for nearly nine more years before entering private practice in 1979. During his campaign. Miller vowed to expand the role of the D.A.’s office — to go after fraud, corruption, and white-collar crimes. Keller’s prosecutors viewed those pledges as a radical departure from the established role of the district attorney. Thomas was an old guard, tough guy, a hard-core law-and-order type who put crooks behind bars. Miller was viewed as a deal-making liberal, a Democrat who would be soft-hearted.
It was not until early in the morning on the day after the election, as Miller watched returns come in that it became apparent he had won. Of the 375,434 San Diegans that cast ballots, 191,331 voted for Miller. Thomas received 184,103 votes.
Thomas, said to be “mortally embarrassed” by his defeat at the polls, vanished from the office following the election. Today, friends say, he has essentially retired, occasionally offering free legal help to the elderly in probate matters. Kasimatis, who is a member of a dwindling group of former lawyers who worked for Keller, says that Thomas has even refused to attend functions of that group, which meets once a year to remember the old boss. One former deputy says he believes Thomas blames the old-guard Keller deputies for his loss by not working hard enough to elect him.
Despite some post-election acrimony in the D.A.’s office evidenced by derogatory remarks about Miller on the office bulletin board, Miller acted to implement his campaign promises. (One prosecutor who joined Miller’s office three years after the election says that, even then, he “detected a very strong, hostile undercurrent” against Miller.) Within a year of being sworn in. Miller’s newly created fraud unit had undertaken the largest land fraud case in the county’s history. A new special-operations unit was checking into political corruption and organized-crime activity. In 1973 Miller hired Robert Fellmeth, a Harvard Law School graduate and associate of Ralph Nader’s at the Washington-based Center for Responsive Law. “I sought him out,” says Fellmeth, today a professor at the USD Law School and founder of the school’s Center for Public Interest Law. “He had been in office for a couple of years and was known as somebody willing to experiment.” Fellmeth, whose earlier work with Nader included participation in a project that led to the publication of Who Runs Congress, says Miller first assigned him to try ordinary street crimes at the D.A.’s East County office in El Cajon before moving him into the fraud division in 1975.
Once there, says Fellmeth, he was able to persuade Miller to establish a local antitrust unit. The following year. Miller authorized Fellmeth to launch an antitrust suit against the San Diego Board of Realtors for alleged price fixing in brokerage commissions and against the national and state realtors’ associations for forcing contributions to their political fund by threatening to cut off noncontributors from the highly valued multiple-listing service. By the time Fellmeth left the D.A.’s office in 1982, he says, he had prosecuted twenty-two different fraud or antitrust cases.
Miller, says Fellmeth, became v recognized as a national leader in the prosecution of difficult fraud cases, “instead of just run-of-the-mill street crimes.” The payoff to society, says Fellmeth, is much greater in fraud and antitrust prosecutions for a number of reasons. Although the victims of street crime are in as much need of help from the district attorney as the victims of white-collar crime, he explains, white-collar prosecutions have greater deterrent effect and yield greater restitution to the victims. “We have criminal statutes that go well beyond robbery,” he says. “And we recover more hard-earned money taken from people who are fraud victims than from all victims of street crime in a year.”
Last year, at any rate, San Diego prosecutors obtained convictions that sent 1500 people to state prison, the highest number ever in the history of the D.A.’s office and second only to Los Angeles County in California. The record number of prison terms won by San Diego prosecutors was not a mere result of population growth either. Compared to counties of comparable size, San Diego County fares well. In Orange County, with a population larger than San Diego County, prosecutors won convictions that sent 960 people to prison during the same period. In Alameda County, with a slightly smaller population, the figure was 975. Only Santa Clara, with a population similar to San Diego’s, was close, with 1300 people sent to prison.
IN 1974, THREE YEARS AFTER Miller took office, his fraud unit filed a civil suit against Earl Scheib Inc., alleging that the discount auto-painting firm had engaged in “a massive campaign of false advertising.” During the same year, Miller’s office filed civil suits against three nursing homes and a salvage food market, accusing the defendants of selling adulterated food products to the public. “I was obligated, because of my campaign promises, to go forward,” says Miller. “At the time I came into the office, we had only one full-time attorney who was handling fraud matters and a couple of attorneys who were handling special-operations cases.”
Today Miller’s fraud unit employs about thirty people, including nine lawyers and ten sworn investigators. His special-operations unit employs about twenty people, including eight lawyers and ten investigators. Miller has divided his office into groups of lawyers with supporting staffs based on prosecutorial needs. The superior court division has thirty lawyers; the municipal court division, twelve. The major violators unit, which handles the prosecution of career criminals, has six attorneys, and another specialized unit, the gang prosecution unit, has four. Nine lawyers handle just legal research, while another four review cases to determine what, if any, criminal charges will be filed and, occasionally, extradition matters. The narcotics division has five attorneys, and fifteen lawyers are assigned to juvenile court. Nine lawyers work in the family support division, and seven in the child-abuse section. The district attorney also maintains three regional offices — the South Bay office in Chula Vista, with sixteen lawyers; the East County office in El Cajon, with nineteen lawyers; and the North County office in Vista, with twenty-seven lawyers. Each of these sections is headed by a “chief,” who in turn reports to Miller’s two top subordinates — Assistant District Attorney Richard Neely (a former Keller man) or Chief Deputy District Attorney Brian Michaels (who first went to work for Miller in the U.S. Attorney’s office).
It was not until 1978 that Miller finally got to C. Arnholt Smith, the powerful financier whose money and machinations failed to keep Miller out of office eight years earlier. In October of 1973, Smith’s United States National Bank failed, prompting a massive investigation into his financial dealings by federal bank examiners, IRS officials, and other law-enforcement agencies. Those investigators concluded that Smith, using his position at the bank, was making bad loans to some of his many business enterprises to keep them afloat in what eventually became a grand Ponzi scheme. Although it was apparent as a result of the IRS investigation that Smith could probably be successfully prosecuted for tax evasion, federal officials declined. Miller concluded that Smith’s close friendship to Nixon may have played a role in that decision. He sought therefore to determine whether there might be state statutes under which Smith could be prosecuted.
Steve Davis was assigned to the case. “What he did was to call the Franchise Tax Board and say, ‘It looks to me like the feds are dropping the ball. Why don’t you guys consider doing a prosecution?’ ” Even though the feds did prosecute Smith in 1974 for bank fraud. Miller was not satisfied. Smith received only a $30,000 fine and probation after entering pleas of no contest to four federal charges. “Let’s face it,” says Davis, “Smith was a super-huge crook, so it was not real difficult to find crimes to prosecute him for.”
Though indicted by the county grand jury in December 1975 and again in March 1976, Smith did not go to trial until September 1978. “We spent the next couple of years like we were in prison in pretrial hearings,” says Davis. Smith’s trial — one of the longest ever in San Diego history — lasted from September 1978 until May of 1979. He was convicted of state income-tax evasion and grand theft and sentenced to three consecutive one-year terms on the county honor farm. After more than four years of appellate battles. Smith finally had to go to jail. His sentence, however, was reduced to just a one-year term, and he served nine months.
Charges of a politically motivated prosecution were raised by the defense in the C. Amholt Smith case, and they were later repeated by another San Diego political figure. Miller’s pursuit of former Mayor Roger Hedgecock, who was brought down in the collapse of another fraudulent financial empire, led to repeated claims by Hedgecock and his allies that Miller — who supported Democrat Maureen O’Connor in the special 1983 election — was politically motivated. Hedgecock was indicted by the county grand jury on charges of conspiracy to conceal campaign contributions and perjury and later convicted after a second trial was made necessary by a jury deadlocked 11-1 in favor of conviction.
Miller’s critics, however, have not all been the Smiths and Hedgecocks of the world. One of his earliest supporters, developer Harvey Furgatch, expresses disappointment in Miller’s leadership. Furgatch says he made “substantial contributions” to the Miller campaign, “thousands and thousands of dollars.”
An anecdote that Furgatch himself tells offers some insight into the character of Ed Miller. According to Furgatch, some years ago, he read in the paper a news account of an antitrust action that Miller had instituted against the developers of tract homes. “One day I read in the paper about a group of builders and developers that Ed Miller has sued on the grounds of antitrust,” says Furgatch. The basis for the action, according to Furgatch, was the common practice by developers offering tract homes to limit the number of decor options like carpet color and paint tint. When homebuyers bought one of the houses, they bought one of a limited number of interior schemes. If a customer wanted a particular color or style not in the plan, developers would refer the buyer to one of the contractors on the project and hope they could work something out. Because of the large scale of the projects, says Furgatch, homes would not have been completed on schedule if buyers started bringing in outside contractors to make the custom changes. “So I called Ed Miller, and I said, ‘Ed, what is this thing about the carpet?’ and he says, ‘Well,’ —this is the way he talks, by the way — ‘Well, there’s an antitrust thing and, you know, well.’ I said, ‘Ed, look. These guys are doing the buyer a favor by giving them the choice of color. They could say to the buyer, ‘This is what you get — blue.’ Now you’re coming along and trying to force them into just giving them one choice, period.’ Then I said, ‘The reason I’m calling you is because I’m doing pretty much the same thing. You really ought to sue me, too.’ He did!’’
Miller may be a prosecutor of integrity, but even some of his closest advisers concede that his critics could be right about one thing: Miller provides inadequate supervision over his deputies in the trenches and is generally too easy on those who make serious mistakes. And several judges complain that Miller’s deputies are practically out of control, while at the same time given virtually no leeway in making their own decisions in the courtroom. “He surrounds himself with some disturbing people,’’ says one judge, who, like most of his counterparts, spoke on the condition that his identity not be revealed.
One judge says he has taken supervision of troublesome deputy district attorneys into his own hands. “I call them back into my chambers and I sit them down and I say, ‘Don’t you fuck with me!’ ’’ says the judge. Kasimatis, while recognizing the difficulty inherent in operating such a large office, says he is still occasionally baffled by some of the Miller subordinates with whom he must deal. “He’s put some people in positions that I just scratch my head over,” says Kasimatis.
Richard Huffman argues that it is not Miller’s fault that San Diego is one of only a handful of counties in the state in which prosecutors are considered full-fledged civil-service employees, with all the protections that brings. Miller sits atop a “large government civil-service office,” says Huffman, which is subject to “a variety of external forces,” including personnel policies controlled not by Miller but by the county personnel department, the board of supervisors, and court orders. “If a person shows up, doesn’t steal from the cash register, and engages in no overtly deviant behavior, you can’t fire him.”
Still other judges question Miller’s understanding of the concept of judicial independence. Since he has taken office, Miller on several occasions has used the power of his office to shut down courtrooms by issuing peremptory challenges against judges he considers unfair. In one early case, in which Judge Douglas Woodworth threatened the D. A. with contempt over a decision to withdraw from a plea bargain in a rape case. Miller’s blanket challenge resulted in the judge’s transfer from the criminal to the civil division of superior court. In another case. Miller publicly ridiculed Judge Carlos Cazares after a 1980 ruling in which Cazares set free a man convicted of hitting another with a baseball bat. Cazares made his decision reluctantly, after concluding that the jury was confused when it completed its verdict form, inadvertently reversing the counts involving two different victims. Miller lambasted Cazares, calling his decision the most outrageous ruling he had seen in twenty years as a lawyer.
What these examples show is a sort of institutional friction between separate but equally powerful branches of government — the executive branch, represented by Miller, and the judicial branch, represented by various judges. Under the law, each side is vested with various but distinct powers. The D.A. can bring charges against a citizen, a judge cannot. A judge can nullify certain prosecutorial decisions on constitutional grounds, but the D.A. is not empowered to change a judge’s decision. In this balance, the district attorney — and for that matter, all lawyers — are permitted under California law to issue what is called a peremptory challenge to a judge at the outset of a case. Such a challenge, which requires no explanation, automatically disqualifies a judge from hearing the case at bar, and a new judge must be found to hear the case. Each attorney gets only one such challenge per case, and they are typically used by lawyers who want to protect their clients from particularly harsh judges or because the lawyer has a personality conflict with a judge.
It was over this issue that a fight between a judge and Miller broke out in the D.A.’s North County office in Vista in 1984. Municipal Court Judge Tony Maino III, an ex-Marine officer and former prosecutor for thirteen years under both Keller and Miller, was challenged by Miller’s prosecutors in every drunken driving case that came before him. The blanket challenge was the result of Maino’s dismissal of nearly a hundred drunken driving cases on grounds that the district attorney had made procedural errors. Miller’s challenge came just months before Maino was to stand for re-election and prompted an Escondido lawyer to file against him in the race. The lawyer later withdrew from the race after concluding that the D.A. had no legitimate basis for the challenges to Maino. Maino, however, fought back with a vengeance, delivering a fiery speech to the San Diego Trial Lawyers Association: “If the prosecutor wishes to create an image of himself as tough and the courts as soft, he should be willing to have the public spotlight placed on him for all his decisions, not just selected ones,” said Maino. Ultimately, Miller and Maino met to discuss the controversy and today have nothing but nice things to say to each other.
Huffman, who as then-assistant district attorney was responsible for briefing Miller on the Maino situation, concedes that he and his subordinates failed to research the issue fully, particularly neglecting to take note of Maino’s impending re-election bid. “It’s one of those cases where honest, reasonable people may disagree,” says Huffman of the incident. Nonetheless, says Miller, he has a right as an elected public official to criticize wayward judges. It is not, he says, an attack on the independence of the judiciary. “We have certain rights as prosecutors, and one of thoae rights is to challenge a judge,” he says. “If we believe a judge will not give us a fair trial — that we will not be treated fairly by that judge — then we have the right to challenge him and we will
IT IS UNLIKELY THAT MILLER will come to a meeting of the minds with some of his other detractors: those who believe he is insufficiently diligent in pursuing cops who abuse their power and cops who think he fails to understand the realities of police work. Minority critics complain that blacks and Hispanics often bear the brunt of overzealous police officers and that Miller is insensitive to the indignities they suffer. They point out that among the 185 lawyers who work for Miller, only four are black and a dozen are Hispanic. (When Miller took over the office in 1970, there were no blacks or Hispanics on staff and only one woman; today nearly half of the prosecutors in Miller’s office are women.)
Despite recent headlines regarding the Sagon Penn case and a Mexican youth wounded by a border patrol agent. Miller’s record in racially sensitive cases — or in cases involving police misconduct in general — is defensible. In the last four years, Miller’s office has prosecuted thirty-four law-enforcement officers.
On at least two occasions, Miller’s decision to prosecute cops has enraged the law-enforcement community. In November of 1975, the county grand jury, after interviewing twenty-one witnesses, refused to indict National City police officer Craig Short, who had shot twenty-year-old Robert Louis Rivera in the back and killed him. The shooting occurred during a foot chase following a reported purse-snatching at a South Bay church. Short allegedly opened fire after Rivera failed to heed his warnings to stop. No purse was found in Rivera’s possession. In a major departure from standard practice. Miller filed a criminal complaint against Short anyway, overriding the grand jury’s refusal to return a true bill. A judge later dismissed the manslaughter charge Miller had filed against Short. Insiders say the animosity engendered by Miller’s decision still lingers in the National City Police Department today.
When Miller took the case of Escondido police officer David DeLange to the grand jury in 1984 and won an indictment, law-enforcement officers across the county expressed bewilderment and outrage. DeLange, then twenty-five, had shot and killed Leslie Landersman, a bank robber’s hostage, at the end of a wild chase through the streets of Escondido. Landersman was felled by DeLange’s bullets as she tried to make good an escape from her captor. Miller prosecuted the officer for involuntary manslaughter, alleging the young cop was criminally negligent in the performance of his duties. The Escondido Police Officers’ Association demanded an investigation into the way the case had been pursued. In a letter to Miller, members said the D.A.’s investigation had been one-sided and “contrary.” Police Chief Jim Connole, now retired, reacted to a jury’s “not guilty” verdict by accusing Chief Deputy District Attorney Richard Neely (now assistant district attorney) of failing to provide relevant evidence to the grand jury, thereby putting DeLange through unneeded torment and expense. “It is unfortunate that Mr. Neely chose to present only those things to the grand jury that served his purpose,” said Connole.
Miller’s record in the sensitive area of wrongdoing by law-enforcement personnel is kind of like one of those optical illusions you played with as a child: if you look at it long enough, it appears to be something else. After all. Miller is also the D.A. who tried Sagon Penn twice; refused to file charges against border patrol agent Edward Cole in the 1985 shooting of twelve-year-old Humberto Carrillo Estrada, a Mexican national who was on the Mexican side of the border when he was shot; concluded that San Diego police officer Christopher Ball was “within the law” when his sleeper hold led to . the death of an unemployed black laborer in 1983; and determined that the 1983 shooting death of a sixteen-year-old Lakeside youth by sheriffs deputy William Cowles was not a crime because the teen had allegedly first pointed a revolver at the deputy.
In some cases, public outrage has been so fierce that Miller’s office has been subjected to outside scrutiny. Such was the case in Miller's decision not to prosecute anyone for the Carrillo border shooting, which prompted demonstrations outside Miller’s Mount Soledad home. That case was reviewed by the state attorney general’s office, which found that Miller’s decision not to prosecute was “not an abuse of discretion.”
THROUGH ALL THESE TRAVAILS and triumphs, Miller has had an official spokesman. Steve Casey, a forty-three-year-old former journalist, has served in that capacity for eight years. Before becoming the third “special assistant to the district attorney” serving in the capacity of spokesman for Miller, Casey worked at the Tribune. He began as a criminal justice and prison reporter but moved on to less heady stuff. He spent three years writing what he calls “non-sport sports” — investigative reporting on the sports pages and, when Miller hired him, had been writing a radio and television column for three years.
Casey’s is a high-profile position. He is often the first to speak from the D.A.’s office on matters of public attention. Some of his critics call him glib and arrogant. Others claim he participates in legal decision making for which he is not qualified. He denies the latter allegations and says he can’t understand the former. Casey, who is paid $60,000 a year, professes to having once been nervous when facing the press, but you wouldn’t know it by seeing him in action today. He has an easy, quick manner — sometimes getting himself in trouble with Miller because of his propensity to speak off the top of his head.
Even early in his job, Casey had that problem. In 1979 Miller’s office was being deluged by calls emanating from a La Mesa controversy over a nightclub featuring male strippers. The ongoing dispute included attempts by police to close the business, claims by the business owners of police harassment, and allegations among city council members that various councilmen had acted improperly in conjunction with the club. “Anytime anything would happen involving any of these issues, somebody would call for a D.A.’s investigation,” says Casey. “For days, I got calls — it seems like they were hourly — from one reporter or another wanting to know ‘Is the D.A. going to investigate the City of La Mesa?’ Finally, one day, at the end of the day — a pretty tough day — my batteries had run down, and the umpteenth call came in: ‘Is the D.A. going to investigate the City of La Mesa?’ I just reared back and said. ‘No, I’m glad you asked me that, though, because I just conferred with the district attorney, and he’s determined not to investigate the City of La Mesa. He will instead quarantine it.’ ”
It is difficult to tell what kind of person Miller is by talking to him. He is the kind of leader who needs a spokesman. He talks in a virtual monotone, and interviewing him is hardly a lively event. Miller is not an articulate man. His sentences ramble and are filled with qualifiers. A few hours with Miller corroborate what most everyone says about him: He is a man who intensely dislikes open conflict.
At sixty-one, Miller is at the height of his career. His office reaches to every corner of the county, and in addition to the executive suite he and his chief assistants occupy in the Wells Fargo Building, he has lawyers, investigators, and clerical personnel working on the seventh floor of the bank building and on the fifth, sixth, and seventh floors of the county courthouse. When Miller finishes his current term in 1990, he will have served as district attorney of San Diego County for twenty years. Some say it is time for him to step down, arguing that so many years in office create a dullness and inertia that even the most capable of leaders cannot overcome. Though Miller remains, many of his most talented lawyers have left. Huff man’s departure to the Superior Court bench two years ago has left a management void that has been difficult to fill. And although the office prides itself on the recruitment of competitive-spirited
young prosecutors, several observers note that Miller is not getting the kind of talent he once did. Fellmeth blames what he calls the “disgraceful” beginning salary offered by the D.A.’s office of $28,800 a year. That is far below the average $45,000 a year that beginning lawyers make in private practice, he says, and below the salaries in the midthirties paid by other public-sector employers, including the attorney general. But the hemorrhage of talent will continue, says Fellmeth, because of the number of experienced deputy D. A.s stuck in midlevel ranks and earning salaries in the $40,000 range. Besides, he adds, because of the county’s hiring practices that require applicants for deputy district attorney positions to pass the state bar before employment, all of the best talent has already been picked over by private law firms during law-school recruitment, well before they take the bar exam.
Van de Kamp, describing the situation in which Miller came to power, may have unknowingly prophesied about Miller’s future. Said Van de Kamp, “It was very clear that there was a power structure that had gotten old and stale and needed to be changed.” Has Miller become old and stale? Some of his once-brightest stars think so. “I think the most valid criticism that can be made of Miller’s office now is that it is just getting to be an old office,” says Davis. “It’s a decent office. It’s an honest office. But I don’t know of any innovations that have been made in recent years.”
So far, no one has emerged as a likely challenger to Miller, who still appears politically strong in conservative San Diego County. As for Miller, he won’t say whether he will seek a sixth term. It depends, he says, on his health. He says he has been having some problems with his back. But Miller is clear about one thing: “I can’t think of any elective job — local, state, or federal — that I’d rather have”