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'Is Retribution Only for a Few?'

December 14, 1986

The column by law Prof. Franklin Zimring regarding the murder of Erica Johnson ("Is Retribution Only for a Few," Editorial Pages, Dec. 4), demonstrates that Zimring, like many law professors, doesn't have a clue as to the realities involved in the actual prosecution of a criminal case. As the prosecutor in the Erica Johnson case, as a member of the Los Angeles County district attorney's office, and on behalf of the victim, I am outraged by Zimring's absolutely nonsensical statements.

First of all, his suggestion that somehow we did not try our hardest on this case because it involved black killers and a black victim is an insult to the many law enforcement professionals involved in the investigation and prosecution of this case was shocked by the brutality of this murder. During our investigation we got to know Erica Johnson. She was a fine woman with loving parents and a promising future. We saw the pictures of her with her hair matted with blood and her features distorted by the five shots to the face that killed her. We were determined to find her killers and we went absolutely full bore on this case. We obtained search warrants. We questioned over one hundred persons. We spent months in a determined investigation trying to dredge up the smallest clue. I think the fact that both defendants were convicted of first degree murder--even though there were no witnesses to the actual killing--demonstrates the seriousness with which we approached this matter.

But this isn't enough for Zimring. He says we should have gone for the death penalty since this was the killing of a witness, which makes it a death penalty offense. Good idea, professor. Except the only way we knew that the victim was killed to keep her from testifying is that she reported threats made against her several days before she was killed. Unfortunately, such reports are hearsay and are not admissible in court. Thus, we had no way to prove that the killing was for the purpose of silencing a witness.

Worse, Zimring says we should have, "purchase(d) the testimony of the less culpable (suspect) with promises of leniency . . . " Nonsense! First, neither of the killers is "less culpable." Both are vicious slayers who laughed about murdering their 17-year-old victim. Second, the only way we can force a suspect to testify is to give full immunity. This means we'd have to let a cold-blooded killer go free. Explain that to the victim's parents, professor. And what would we get out of it? The hope that the immunized suspect would testify that the other suspect killed the victim to keep her from testifying? Join the real world, professor. We can't condition a grant of immunity upon a suspect testifying in a particular manner. If we had given immunity to one suspect, he's just as likely to testify that he alone committed the murder. That way both he and his co-suspect would go free.

I could go on, but I believe my point is made. This was a difficult murder to solve and a difficult case to prosecute. Nevertheless, both defendants were convicted and sentenced to life in prison. Do they deserve the death penalty? Absolutely yes. But the fact is we couldn't prove the special circumstance necessary to permit a jury to return a verdict of death. This wasn't a TV show but a real trial. We can't manufacture evidence. As prosecutors we must follow the facts and law as they exist.

If Zimring wants to use the murder of Erica Johnson to prove his thesis that prosecutors consider the race of the victim in deciding whether to seek the death penalty or that the death penalty is imposed too arbitrarily to be valid, he's grossly mistaken. But if Zimring who, contrary to his editorial never spoke to me about this case, wants to leave his Berkeley classroom, come to the Los Angeles County district attorney's office, and spend a dozen or so years doing felony jury trials, maybe then we'll let him sit in our coffee room and tell us how to try a murder case. Until then, he should concentrate on his law studies.

DENNIS CHOATE

Deputy District Attorney

Los Angeles

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