D.A. Accused of Payback Prosecution

Although the district attorney’s office has filed no charges in its two-year probe of the Belmont Learning Complex construction fiasco, it did pursue a criminal case against one of its own prosecutors who took part in the investigation of the unfinished high school project.

The prosecution of Deputy Dist. Atty. David Eng, who is scheduled to find out todaywhether he can regain his job after the criminal case against him unraveled, has opened a window onto the contentious Belmont investigation.

Eng’s attorney maintains that his client was pursued on an unrelated matter as payback for urging his bosses to announce more than a year ago that there would be no criminal charges in the Belmont case. The district attorney’s office denies the allegation.

Meanwhile, the office is due in coming days to release its Belmont report, which is expected to conclude that no criminal charges can be filed. The anticipated conclusion has sparked criticism from some observers, including the lawyer whom Dist. Atty. Steve Cooley appointed to head the Belmont investigation and later removed from that post.

Cooley, says attorney Anthony Patchett, has backed off from a 2000 campaign promise to root out wrongdoing connected to the ill-fated school project.

Top officials in the district attorney’s office have declined to comment on the Belmont investigation, or respond to critics, before the report is released.

The $200-million-plus Belmont project has long been mired in controversy and dogged by environmental contamination and allegations of conflicts of interest. Work was halted on the site in 1999 when the Los Angeles Unified School District determined that it would be unsafe for children because of toxic and explosive gas underneath the buildings.

Last March, the school board reversed itself, but by year’s end had mothballed the project again, citing a newly discovered earthquake fault on the property, which is just west of downtown Los Angeles.

Eng was one of three prosecutors assigned to the Belmont task force who argued in July 2001 that, contrary to Cooley’s campaign statements, there was no crime committed in the construction of Belmont.

Last September, the district attorney’s office asked the state attorney general to charge Eng with four counts of illegally accessing a law enforcement computer for his personal use.

The criminal case against Eng swiftly fell apart in court last month when the lead prosecution witness, a district attorney’s investigator, invoked the 5th Amendment on the witness stand and refused to testify. The attorney general’s office, which was handling the matter because the district attorney’s office could not legally prosecute one of its own employees in court, dismissed the charges.

Eng’s attorney, Mark Geragos, says his client was set up for a sham prosecution because Eng urged Cooley to come clean with the public on Belmont more than a year ago.

“They realize that the emperor’s got no clothes, and David wants them to do something about it -- not only because it’s costing the taxpayers a lot of money, but they’ve exposed a lot of people to a criminal investigation,� Geragos said. “They take him out through one of the most contrived prosecutions I’ve ever seen.�

The district attorney’s office said Belmont did not factor into its investigation of Eng, and people connected with the long-running probe into the school project point out that Eng’s viewpoint ultimately won out with the office’s top brass.

“No element related to Belmont was involved in the matter that was referred to the attorney general,� said Joe Scott, Cooley’s director of communications.

Eng’s adversary during the Belmont probe was Patchett, a former deputy district attorney and top Cooley backer during the 2000 campaign. Patchett, who once headed the office’s environmental crimes unit, selected Eng and two other prosecutors for the task force.

Patchett contended that there were indictable crimes involving Belmont, but the three other prosecutors disagreed. After losing the argument for prosecution, Patchett was removed as head of the task force.

“We only go after little people, not major defendants,� he said. “It’s a sad commentary on the criminal justice system.�

Others are also angered by the outcome. Roger Carrick, an environmental attorney who represented the L.A. Unified inspector general’s office during its investigation of Belmont, has publicly urged Cooley to file environmental charges, to no avail.

“I am deeply disappointed, as I think everyone in L.A. is, that no public prosecutor sees fit to prosecute anyone at Belmont,� Carrick said in an interview. “I think any regular citizen reading the newspaper would think someone broke the law.�

Patchett had retired from the district attorney’s office when he was approached in 2000 about helping Cooley’s insurgent campaign against Dist. Atty. Gil Garcetti, who had declined to prosecute anyone in connection with the Belmont controversy. Patchett was specifically asked to look into Belmont, and he says he spent 400 hours researching the tangled history of the still-skeletal school structure.

Investigators for Los Angeles Unified and the Legislature identified problems, including the fact that the same high-powered law firm that represented the district in negotiations over the school’s construction, O’Melveny and Myers, also represented the developer who won the contract.

Additionally, an auditor for the district said the project’s subcontractors had overbilled by more than $2 million. And when methane was found under buildings on site, some school and political officials said the presence of the potentially explosive gas had been concealed from the public.

Cooley swept into office in November 2000 promising to reopen the Belmont probe. The next February he hired Patchett as his special assistant and appointed him head of a new Belmont task force. Patchett said he was particularly interested in one angle -- that contractors had allegedly removed soil from the construction site, a former oil field, without a permit for transporting hazardous waste, and illegally dumped it elsewhere. In April 2001 Cooley declared the school site a crime scene, sparking a brief clash with the school district.

The investigation did not go smoothly. Soon, according to people who were involved, the office split into those who wanted to indict and those who did not.

“It was just a mess from Day One,� said one member of the task force who spoke on condition of anonymity. “You could see the tension in the air.�

By summer 2001, Eng and the other two attorneys Patchett had selected, George Castello and Fred Macksoud, were arguing that there was no crime at Belmont -- not the possible environmental violations Patchett was investigating or the alleged overbilling, say participants in the probe. Castello and Macksoud declined to comment before the Belmont report’s release.

Also a factor was an arbitrator’s ruling that the district had not been overbilled. Advocates of prosecution said that shouldn’t have been an obstacle, because the arbitration process didn’t allow for subpoenaing documents and witnesses.

In July 2001, dozens of prosecutors and investigators crammed into a conference room on the 18th floor of the downtown Criminal Courts Building to review the results of the Belmont probe. It was in these meetings, Geragos said, that Eng argued for a swift public exoneration, because the inquiry had sparked an Internal Revenue Service probe into whether the tax-exempt bonds issued to finance Belmont were legal. That investigation was driving up the cost of the bonds.

By the end of the month, Patchett had been removed as task force chief and Cooley was publicly saying he was narrowing the scope of the inquiry. In a memo to his office staff, he pledged that a comprehensive report on Belmont would be out in “early 2002.�

Patchett left the office in December 2001. Last fall, the IRS settled its investigation of L.A. Unified with no criminal charges or fines. In September, the D.A.’s office asked the attorney general to consider prosecuting Eng. According to court records and interviews, Eng asked a colleague in the district attorney’s office in October 2001 whether a man who wanted to buy his house had a criminal record. Eng later called off the sale. The man complained, and the district attorney’s office opened an internal probe.

It forwarded the case to the attorney general’s office a few weeks before the statute of limitations expired. The state prosecutors, who usually perform their own investigations, filed the misdemeanor charges against Eng relying largely on the district attorney’s internal probe, said attorney general spokesman Nathan Barankin.

In late January, the attorney general’s office backed off. Eng’s attorney was contending that his client never accessed a confidential database to look up a criminal record; he simply asked a colleague for information. The key witness, district attorney investigator David Torres, stated in court that he would cite his constitutional right against self-incrimination if questioned about whether he had accessed the confidential database for Eng.

“The D.A. hoodwinked the attorney general on this case,� said Geragos, Eng’s attorney. “The attorney general did the ethical thing on this and dismissed.�

Torres, also a member of the Belmont task force, did not return a call seeking comment. Eng, who was suspended from his job when the criminal charges were filed in October, has appealed to the county’s Civil Service Commission for reinstatement, and officials say he is to be informed today whether his suspension will continue.