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SAN JOSE — Santa Clara prosecutors have filed a misdemeanor charge against Deputy Public Defender Thomas Spielbauer, accusing the three-time bench candidate of misrepresenting the availability of a witness. Spielbauer is accused of telling retired Judge Paul Teilh that the witness couldn’t be located and was unavailable when, just a few days earlier, he’d spoken to the witness at his home. Deputy DA Frank Berry Jr., who is prosecuting the case, said Spielbauer violated Business & Professions Code � 6128, which forbids attorneys from deceiving the court. “To ignore the conduct was completely out of the question,” Berry said. Spielbauer, who was in court for arraignment on the charge Wednesday, said he didn’t lie. Instead, he said he had told the judge he didn’t send an investigator to find the witness, and that the witness was unlikely to cooperate because there was a warrant out for his arrest. Spielbauer maintains he didn’t have to tell prosecutors that he’d personally talked to the witness because it was protected work product. Spielbauer and his attorney, Zacharias Ledet, say the prosecution and related office disciplinary proceedings stemming from the incident are “payback” for Spielbauer’s series of outspoken political campaigns, which at one point prompted Santa Clara DA George Kennedy to call Spielbauer “dangerous.” “People believe they can silence Tom through a criminal conviction and embarrassing him with disciplinary proceedings,” said Ledet, a Los Gatos solo and former Santa Clara deputy PD who once filed a federal suit against the PD’s office. Spielbauer refused to enter a plea at the arraignment Wednesday and Santa Clara County Superior Court Judge Arthur Bocanegra, a former public defender, recused himself. The arraignment was rescheduled for Judge Erica Yew’s courtroom next week. The case against Spielbauer stems from pretrial hearings in January in the case of defendant Michael Dignan. Dignan was picked up while on parole and charged with possession of ammunition at a Campbell residence. Spielbauer said he set out to prove that Dignan did not own or rent the home where the bullets were found. He wanted to introduce statements made to the police by the resident and homeowner’s son, Troy Boyd. Spielbauer said Wednesday that he had spoken to Boyd during a Jan. 26 visit to the house. “I stumbled into him,” Spielbauer said. “I did not expect to find him.” Spielbauer said Boyd told him he didn’t want to testify because he was wanted by police. In court on Jan. 27, Spielbauer indicated that Boyd was unavailable to testify, and asked Teilh to allow his statements in under a hearsay exception. “I cannot — and I have to indicate to the court that I have not made — I have not sent my investigator out to try to find Troy Boyd in large part because of my conversations with my client, but significantly that Mr. Boyd has a warrant out for his arrest,” Spielbauer said that day, according to a court transcript. “And if the San Jose Police are not going to be able to find Mr. Boyd, I think my investigator is going to be very hard put to find an individual who is avoiding contact with anybody that had to do with the judicial system.” With Boyd deemed unavailable, Teilh allowed Spielbauer to introduce his statements to police. At a rehearing two days later, Deputy DA David Boyd told Teilh that Troy Boyd had been located by San Jose police. According to the deputy DA, the witness told police about meeting Spielbauer and said he was willing to testify. At the Jan. 29 hearing, Spielbauer said he had talked to Troy Boyd, and he wouldn’t cooperate. “I stand by my statement that I made to the court that he was unavailable,” Spielbauer said that day, according to a court transcript. “Now the question becomes: Is there an obligation — was there an obligation for me to have said that I bumped into him on Sunday?” Ledet said Spielbauer didn’t mislead the court — instead, Deputy DA Boyd “jumped to a conclusion.” “He is not required to tell the DA his strategy. It’s attorney work product,” Ledet said Wednesday. Ledet also accused the county and the PD’s office of mishandling disciplinary proceedings against Spielbauer. The 23-year veteran has refused to cooperate, and said he filed a grievance against Deputy PD Jose Guzman as a result of those proceedings. Public Defender Jose Villarreal declined to comment Wednesday. Deputy DA Berry said he offered Spielbauer a deal to avoid the criminal charge: Agree to a civil contempt action, pay a $1,000 fine, and apologize to the court. But he said Spielbauer refused. Berry said the prosecution has nothing to do with politics. “This case was filed on the merits,” Berry said. “I am fairly confident the people in this community will take this seriously.”

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