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SAN DIEGO - A jury in San Diego County Thursday found that a former high-ranking Orange County prosecutor was forced to retire due to harassment from District Attorney Todd Spitzer and his top assistant, Shawn Nelson , who is now a Superior Court judge.
Tracy Miller sued Orange County, Spitzer and Nelson in a whistleblower retaliation and harassment lawsuit after she retired following 25 years in the office. The jury awarded Miller $3 million in economic damages and will now turn to determining if any punitive damages will be assessed against Spitzer. The jury found that Nelson did not act with malice.The jury also found that the county failed to stop the harassment.The case was moved to San Diego County because of Spitzer's status as Orange County's top prosecutor and Nelson's position on the Orange County bench. Another key witness in the trial was Orange County Superior Court Judge Chris Duff and some of the evidence involved Orange County Superior Court Judge Ebrahim Baytieh.Seven of the verdicts were unanimous, nine were 11-1, five were 10-2 and two were 9-3 on the questions of harassment and retaliation. On damages, the votes were mostly 9-3.Miller had reached the highest level of executive as a senior assistant district attorney for three years before she left the office.She alleged in her lawsuit that Spitzer and Nelson forced her to retire by creating a hostile work environment after she moved to shield younger prosecutors in the office who had reported being sexually harassed by another prosecutor, Gary LoGalbo, who was best man at Spitzer's wedding and who retired during the harassment investigation and died before the case went to trial.Miller's attorney, Bijan Darvish, accused Nelson during closing arguments on Tuesday of falsely testifying that Miller was a liar who made up her allegations.When Miller complained about Nelson, Spitzer did nothing about it, Darvish argued.Darvish pointed to testimony from retired prosecutor Beth Costello, who acknowledged she wrote a scathing letter about Spitzer showing a private social media page video of her engaging in 'pole fitness' when he was an Orange County supervisor running for election as district attorney to criticize his predecessor's management of the office.Costello, however, testified that she had a rapprochement with Spitzer after he was elected and said she felt he had a 'big heart' now.'Beth Costello was another of his victims -- that's why she wrote that letter,' Darvish argued. 'And he didn't dispute a single fact... He did not dispute... to harassing Beth Costello.'Darvish also said Spitzer and Nelson would refer to the women managers as 'babysitters' for rookie prosecutors in the branch courts.'They say the women babysit and the men manage,' Darvish said.Darvish pointed to testimony from Assistant District Attorney Susan Price who found the belittling 'incredibly offensive.'Price, however, testified that since her sons were babysitters she did not feel it was meant to be a sexist comment, though she found it offensive.Darvish also noted how Miller was told that in executive meetings with the other top prosecutors she was not allowed to speak without permission.Darvish also noted how when a county-hired attorney issued a report on the sexual harassment allegations against LoGalbo, Spitzer sent it to everyone in the office, which essentially outed Miller and other accusers.'There's only one reason to send that out -- to continue the harassment of the victims,' Darvish argued.A follow-up report from the outside counsel concluded that Spitzer had violated county policy by sending out the document.Darvish also accused Spitzer of threatening to remove Miller as head of an anti-gang program for youths that she founded or to diminish it.'It was done to drive Tracy out,' Darvish argued.One of Miller's friends in the office testified that she looked 'unhealthy, upset' from the stress, Darvish argued.Attorney Tracey Kennedy, who represents the county, argued that employees like Miller were 'at will' workers, meaning they could have been fired at any time when Spitzer took office. But instead of firing her she was promoted, Kennedy said.Spitzer never disciplined Miller in any way, Kennedy argued. She said there was no documentation that Spitzer and Nelson wanted to get rid of Miller.Kennedy also downplayed Miller's role in helping prosecutor Clarisse Magtoto when she reported allegations of harassment against LoGalbo.Orange County Superior Court Judge Chris Duff was in management as a prosecutor when Spitzer asked him to write up Magtoto for being untruthful, Duff testified. Duff, who was later elected judge, said he resisted the order because he was advised not to by county human resources officials and because he felt it was potentially illegal.No one asked why Spitzer was concerned about her honesty, Kennedy argued.Kennedy argued Duff and Miller 'jumped to a conclusion' that it was about LoGalbo.'Something has to happen before you can sue' for harassment, Kennedy argued. 'You can't sue because you fear something will happen.'Kennedy denied that Spitzer moved to reduce the anti-gang program to punish Miller. She said they had issues funding the program.'There's no evidence he took any steps to dismantle' the program, Kennedy said.'Nothing happened to her,' Kennedy argued. 'She was not retaliated against.'Miller 'did not like Todd or Shawn from the start,' Kennedy said. 'It was a changing of the guard.'Darvish argued in his rebuttal that Duff was retaliated against and the defense ignored that.No one asked why Spitzer was upset with Magtoto because 'it was absurd that he wanted to write her up,' Darvish argued.Whenever Spitzer got bad headlines 'He blamed Tracy Miller... He blamed everybody else,' Darvish argued.'He even tried to blame' a judge, who found Spitzer had violated the Racial Justice Act when mulling the death penalty in one case, Darvish argued.Spitzer was also angry with Miller for blowing the whistle on Spitzer's meeting with the father of a victim of a mass shooting in Orange who had been facing his own criminal case, Darvish argued. Spitzer was criticized for suggesting leniency for the defendant.'I ask that you hold them accountable,' Darvish said. 'This is your chance to hold elected leaders to a higher standard.'Copyright 2025, City News Service, Inc.
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