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CALIFORNIA ELECTIONS / PROPOSITION 184 : Sponsor Says Judges Helped Write '3 Strikes' : Legal experts say such jurists should be disqualified from cases involving the sentencing measure. Mike Reynolds refuses to identify those who helped him.

October 19, 1994|DAN MORAIN | TIMES STAFF WRITER

SACRAMENTO — Three judges took a leading role in writing the "three strikes" criminal sentencing law passed by the Legislature and now up for popular vote on the Nov. 8 ballot, according to the sponsor of the measure.

Legal experts are questioning the ethics of judges in lending their expertise to the supporters of the measure, saying they should be disqualified from ruling on any "three strikes" cases.

Further complicating the situation, Mike Reynolds, the driving force behind the "three strikes" initiative, Proposition 184, has declined to name the judges he says drafted the measure. No judges have come forward saying they helped write the law.

Reynolds said the judges told him they did not want their names to become known, because lawyers appearing before them on "three strikes" cases might question their impartiality.

Reynolds, a professional photographer from Fresno, said he never could have drafted "three strikes" without professional help from lawyers, prosecutors and the judges.

Although Reynolds, who entered the political arena after his daughter was murdered in 1992, seeks to protect judges he says assisted him, attorneys and other legal experts contacted by The Times say that any judge who took a hand in formulating the initiative has an ethical obligation to come forward.

"Sounds to me the judges recognized they should disqualify themselves from any motion that would require them to rule on the constitutionality," said Superior Court Judge Darrel W. Lewis of Sacramento, a former chairman of the ethics committee of the California Judges Assn.

"They should voluntarily disqualify themselves from ruling on any constitutional question about it," Lewis added, "or at the very least, they should disclose to the participants that they actually played a significant role."

The "three strikes" initiative on the Nov. 8 ballot is identical to legislation signed into law by Gov. Pete Wilson in March.

Like the legislation already on the books, Proposition 184 doubles sentences for those who commit a second felony after one that is serious or violent. Criminals who have committed two violent or serious felonies such as murder, rape or burglary face minimum sentences of 25 years, and possibly far more, if they commit a third felony.

Some prosecutors have said portions of "three strikes" are poorly worded and ambiguous. Defense lawyers and other critics say the law will result in thousands of nonviolent criminals being sent to prison for years.

The California Judges Assn. and the California Judicial Council commonly take positions on legislation in Sacramento. But helping to draft a measure for a private person such as Reynolds goes beyond that, said Municipal Judge Julie Conger of Alameda County.

Conger, another former chair of the judges association's ethics committee, said any judge who helped author the initiative may have violated a specific canon of judicial conduct which precludes judges from practicing law.

"You cannot practice law (if you're a judge)," Conger said.

Conger said she views as "suspicious" Reynolds' statement that judges took a lead role in writing the law. A judge who got involved in such an undertaking would come forward "if they are true to the code of judicial conduct," she said.

The authorship became an issue during a televised debate on Proposition 184 last week in the Bay Area. "Three strikes" opponent Vincent Schiraldi charged that the initiative was authored by the National Rifle Assn., although he said in an interview afterward that he had no proof for the claim.

"I'm very suspicious of covert authorship," said Schiraldi, who runs the Center on Juvenile and Criminal Justice in San Francisco. "We can't scrutinize the people who wrote this."

After the debate, Reynolds explained the genesis of "three strikes." He told The Times that judges took a lead role in drafting the measure, which was then circulated to deputies in the attorney general's office, and other judges.

"I'm going to tell you who was responsible for this," Reynolds said. "They were judges that did the actual pen to paper, the initial draft. . . . A nucleus of three judges did the actual framing and pen to paper, and we took that to other judges, blind. They did not know where it came from."

Explaining why he would not name the judges, Reynolds said: "They asked to stay without identity. There could be at some point a need for them to rule on a 'three strikes' case and they didn't want to placed in a position of partiality. It could affect their position on the bench."

Once before, Reynolds made the statement to The Times about the measure being drafted by judges. Early this year, before "three strikes" qualified for the Nov. 8 ballot, Reynolds said in passing that one of the judges who worked on the initiative lived in a particular house in Fresno.

The Times checked property records, finding that the home belongs to Municipal Judge William Kent Levis of Fresno. Levis declined to discuss the authorship of "three strikes."

"I apologize," Levis said in a telephone interview recently. "We're not supposed to get involved in political situations or political campaigns." Claiming the issue is "pending" before the voters, he maintained that judicial ethics precluded him from commenting--a statement disputed by law professors familiar with judicial canons dispute.

"There is a lot of relevant information that people don't comment on," Levis said.

Although justices on the state courts of appeal and Supreme Court ultimately will determine the constitutionality of many provisions of "three strikes," all judges who hear criminal matters, including municipal court judges, will have opportunities to rule on aspects of the law.

"A municipal court judge decides whether or not to bind someone over for trial," said James Thomson, president of California Attorneys for Criminal Justice. "Most dispositions are occurring at municipal court."

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