Ex-Capo Supt. Cleared of Charges Over 'Enemies List'

Retired Capistrano Unified Superintendent , who was indicted in 2007 for allegedly creating an "enemies list'' of political opponents, was cleared today of the one charge he still faced.

Orange County Superior Court Judge William Froeberg dismissed the lone remaining count of misappropriation of monies by a public officer. On Feb. 26, 2010, he dismissed two felony counts each of using school funds to urge defeat of a recall election and conspiracy to commit an act injurious to the public.

When Froeberg made his ruling last year, prosecutors sought an appeal, and when a panel of appellate court justices sided with Fleming, the prosecution sought a review by the state Supreme Court, which was denied, said Fleming's attorney, John Barnett.

The appellate court justices also threw out the misappropriation of funds charge, Barnett said.

Fleming got the good news a couple of weeks ago, his attorney said.

"We knew this was going to happen today,'' Barnett said, adding that his client "is delighted. He has suffered through this and it's been a burden for five or six years, so he was very relieved that the ordeal is over.''

The appellate justices determined that Fleming did not commit any crimes when he collected the names of the recall supporters from the Orange County Registrar of Voters so he could address their concerns, Barnett said.

The charges stemmed from an 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 a "Taj Mahal''—while many students attended classes in portable classrooms.

Co-defendant Susan McGill, Fleming's retired assistant superintendent, has also inched closer to getting her charges dismissed.

Froeberg dismissed a charge of conspiracy against McGill Feb. 26 of last year. She still faces one felony charge of perjury, but a panel of three appellate justices ruled Wednesday that it appears McGill may be the victim of prosecutorial misconduct.

McGill is charged with lying to a grand jury about not giving a list to Fleming. But the appellate justice said it appears prosecutors withheld exculpatory evidence that would show McGill had someone else write down the names on the list and that employee gave the list to Fleming.

The justices said it appeared prosecutors "deliberately tried to mislead this court'' by declaring they were not aware of the potentially exculpatory evidence.

The appellate justices have given the District Attorney's Office until May 17 to respond.

This court believes that fundamental fairness and due process require that the District Attorney's office be given the opportunity to "explain away" what appears, at least on first blush, to be a pretty damning case of hiding exculpatory evidence from the grand jury, then the trial court, and finally this court,'' the justices wrote in their ruling.

"This court is reluctant to come to the conclusion that prosecutorial misconduct has occurred in this case and hopes that the district attorney's office can give us an explanation which will absolve the relevant members of the district attorney's office of any taint of misconduct.''

Orange County District Attorney's Office spokeswoman Farrah Emami said
prosecutors cannot comment while the case is still winding its way through the
court system.

—City News Service