In a stunning setback for government attorneys, a federal judge declared a mistrial Thursday in the civil rights case of six Los Angeles County narcotics officers after it was disclosed that two FBI agents had destroyed a corrected version of key interviews with the prosecution's star witness.
U.S. District Judge Robert M. Takasugi granted the request after defense attorneys argued that the documents were crucial to their case. But the judge delayed implementing the order to allow prosecutors the opportunity to challenge his ruling.
Prosecutors said the decision could doom not only the government's case against five sheriff's narcotics deputies and a Los Angeles police detective but also could jeopardize the convictions last year of seven additional deputies and pending corruption cases against other officers.
"All of these cases would be impacted," said Assistant U.S. Atty. Michael Emmick, who is overseeing the three-year investigation of alleged drug money skimming by Los Angeles County narcotics officers.
Defense attorney Roger Cossack said, "The real issue is whether all of the prosecutions have now been tainted because all of the prosecutions rely on this allegedly tainted evidence."
The prosecution's chief witness, former Sheriff's Sgt. Robert R. Sobel, has testified that his former subordinates on a drug task force beat drug dealers, planted narcotics on suspects, stole cash and property during drug raids and lied in court to cover their activities between 1985 and 1987.
His testimony changed the course of the two-month-old trial on Wednesday when defense attorneys asked Sobel about discrepancies between his testimony and FBI reports of two key interviews with investigators.
As Sobel attempted to explain the discrepancies, he revealed that he had made more than 140 corrections and changes on his FBI interview reports.
Sobel said some of his revisions were significant, including details regarding alleged thefts and other misconduct by the defendants. That disclosure prompted defense attorneys to demand that prosecutors produce the amended reports.
When government prosecutors acknowledged that those documents had been inadvertently destroyed by the FBI, defense attorneys immediately asked for a mistrial, arguing that they needed the documents to show inconsistencies in Sobel's statements and to impeach him as a witness.
"We go from 100-plus inconsistencies that we can confront Mr. Sobel on. Now we have zero," said defense attorney Bradley Brunon, who added that Sobel's "contradictory statements . . . go to the heart of his testimony."
Takasugi said he had little choice but to declare a mistrial. But he granted a prosecution request to suspend his ruling until Tuesday.
The delay will allow FBI agents Robert Hightower and Charles Teevan to testify today about the destroyed documents, Emmick said, adding that the government maintains "some slim hope of resurrecting an underlying draft" of the missing documents.
"I think the destruction was inadvertent and not done in bad faith at all," said Emmick, who called a mistrial a "grossly inappropriate remedy" for the mistake.
But defense attorney David Wiechert said the mistrial was warranted because the disclosure called into question Sobel's credibility and "tainted" the FBI agents. He suggested that the Sobel interviews were "sanitized" by the government in order to make him a more credible witness.
A former federal prosecutor, Wiechert told the judge that it was highly unusual for FBI agents to allow potential witnesses to review their own interviews and make extensive changes. "It is inconceivable to me that Sobel would write something in an FBI report," Wiechert added, "and the FBI agent would throw it away."
When the prosecutor conceded that such a practice was "definitely unusual," Takasugi asked Emmick if he had ever seen it before. "I have not," the prosecutor said.
Teevan, who works in the Los Angeles FBI office, could not be reached for comment. Hightower, reached at his Austin, Tex., office, declined comment. Karen Gardner, a spokeswoman for the FBI, said the agency would have no comment on the case.
Emmick said both agents acknowledged that "minimal" changes were made in Sobel's FBI report but could not recall any specifics. Arguing against a mistrial, the prosecutor suggested that Sobel could testify to the changes he had made.
But Takasugi rebuffed that idea, saying defense attorneys should not have to depend upon Sobel, whose "credibility is quite central to the guilt or innocence of the accused."
"If we have to rely on Mr. Sobel, it is like allowing him to write his own transcript," the judge said, "and under the circumstances, I think that is totally unreliable."
Takasugi made it clear that he was reluctant to grant a mistrial, particularly in a trial that started in mid-August and is expected to continue through December. But he said "at this stage of the proceedings, there is no way to unring the bell."
