Judge Gives Approval for Opinion Poll in Raabe Case

SANTA ANA — In a court action with little precedent in Orange County, a Superior Court judge has agreed that a public opinion poll of county residents should be conducted at taxpayer expense to help determine whether former Assistant County Treasurer Matthew Raabe can receive a fair trial here on bankruptcy-related charges.

Presiding Orange County Superior Court Judge Theodore E. Millard said Wednesday that in the interest of seeing Raabe’s trial begin on time in March, he decided to approve the poll of registered voters and licensed motorists, from whose ranks the county randomly selects jurors.

When Raabe’s attorneys, who are being paid $600,000 by the court for his defense, first asked the court for additional funds for the opinion survey, Millard expressed skepticism about the validity of a survey of about 300 potential jurors from the more than 1 million county residents eligible to serve on a jury, and he denied their request.

That prompted Raabe’s lawyers to take the matter to the 4th District Court of Appeal, which dismissed it as moot Friday after Millard changed his mind to avoid delaying the trial while an appellate panel considered the issue.

Although defense attorneys in high-profile cases involving celebrities or well-known public figures occasionally commission such polls, defendants with counsel provided by taxpayers are almost never able to arrange for opinion surveys to bolster their bids to move their trials to other counties, where jurors are less likely to have preconceived notions about their guilt.

So far as he knows, Millard said, “this is the first time in my 18 years on the bench” that such a poll of potential jurors has been ordered. He added that he reversed his own ruling after he was “informally asked” to reconsider the defense’s request.

Courthouse veterans could recall only a few instances of Orange County paying for a defendant’s public opinion poll.

Public Defender Carl C. Holmes, who has practiced in Orange County for 27 years, said the court paid for a poll in the case of Randy Steven Kraft, the Long Beach computer consultant convicted in 1989 of the serial murders of a number of men and boys in Orange County.

But, for other defendants, Holmes said, “I have seen no money spent by the court on public opinion polls.” To bolster its venue change motions, Holmes added, the public defender’s office has paid for surveys in a couple of instances out of its own budget.

Maurice L. Evans, chief assistant district attorney and a member of the prosecutor’s staff for 24 years, said he could not remember any case other than Kraft’s in which a poll was commissioned.

One of the last major cases in Southern California in which potential jurors were polled occurred in the state court trial of former Los Angeles police officers Laurence M. Powell and Stacey C. Koon, who were charged in the Rodney King beating. That poll was paid for by the Los Angeles Police Protective League.

The officers’ case was transferred out of Los Angeles County after a pollster found that 97% of eligible jurors had heard or read about King’s beating, and 81% believed the officers were guilty. A jury in Simi Valley later found them not guilty, sparking the 1992 riots in Los Angeles.

Exactly what Orange County residents will be asked about Raabe, or who will conduct the poll, could not be determined. No information about it is contained in the court file.

And a Raabe attorney would not disclose the cost, saying Raabe is entitled to keep matters relating to his trial strategy secret.

“That information is supposed to be sealed, so I really can’t comment,” said Richard L. Schwartzberg, one of Raabe’s lawyers.

Raabe has not yet asked that his case be moved from Orange County, but Schwartzberg said “the law requires that as a predicate of a venue motion that you show either polling statistics that point in the direction of a prejudiced potential pool of jurors, or the court has to see in front of it that they are prejudiced.”

Raabe is set to go on trial March 6 before Judge Everett W. Dickey on six felony counts of securities fraud and misappropriation. His trial was postponed last month so that his lawyers could review testimony before the current Orange County Grand Jury.

Facing up to 14 years in prison if convicted, Raabe, 41, has steadfastly maintained since he was charged in May 1995 that he was only following orders from former County Treasurer-Tax Collector Robert L. Citron. Citron pleaded guilty to the same charges Raabe faces, and is now serving a one-year jail sentence in a community work release program.

Because of the extraordinary nature of the Orange County bankruptcy, some attorneys defended the unusual polling request.

“In this highly charged political atmosphere, as a result of the prosecution of [other county officials], public opinion is extreme in this area and you really can’t go forward with a motion for a change of venue unless you have the poll,” said Vincent J. La Barbera, who has served as attorney for former Supervisor Roger R. Stanton on his bankruptcy-related charge.

“To me it’s a no-brainer--the court has to pay for it,” La Barbera continued. Otherwise Raabe might be deprived “of the paramount constitutional right to a fair trial.”

Public opinion polls are occasionally commissioned by defense lawyers seeking ways to identify the types of jurors who would be most sympathetic to their clients.

In the 1991 rape trial of William Kennedy Smith in West Palm Beach, for example, attorneys conducted demographic surveys and public opinion polls to find the age, gender, religion and socioeconomic status of those most likely to acquit Smith.

And lawyers who defended former auto magnate John DeLorean, who was videotaped allegedly conducting a cocaine deal, used the results of a poll that showed 72% of potential jurors thought he was guilty to carefully select the panel that later acquitted him.

Whatever the poll eventually shows for Raabe, Millard said, “this is obviously preparatory to seeking a change of venue.”

Also contributing to this report was Times correspondent Hope Hamashige.