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THE STATE

Can the L.A. Criminal-Justice System Work Without Trust?

April 26, 1998|Charles L. Lindner | Charles L. Lindner is past president of the Los Angeles Criminal Bar Assn

Imagine how you would feel if you discovered that your son incrementally had stolen the family jewels and sold them on the street to support his drug habit. You would be enraged and perplexed. You would try to forgive, but you could not forget. You'd realize that, despite your best intentions, you could never trust your son again.

These days, many L.A. County defense lawyers have similar feelings toward the district attorney's office in the wake of the discovery that deputy district attorneys assigned to its narcotics unit have relied on secret wiretaps for years to gather evidence against their clients--and no one, including judges, knew about the practice. Beyond the obvious legal question of whether the district attorney knowingly violated the 4th Amendments's prohibition against unreasonable search and seizure is one that cannot be resolved in court: Can the county's criminal-justice system carry on in an atmosphere of mistrust?

The wiretap discovery came in the 1996 Lauro Gaxiola cocaine possession case. Defense lawyers appearing before Superior Court Judge Gregory Alarcon had spent a year trying to obtain their clients' statements. By law, the prosecution is required to turn over such statements to the defense. The lawyers were stunned to learn that the charges were derived from secret wiretaps. Furthermore, the Los Angeles Police Department and the district attorney's narcotics unit had conspired to carry out hundreds of such wiretaps since 1985, all without informing either defense attorneys or trial judges hearing the cases.

The seminal ruling in wiretap law came in 1967, in Katz vs. United States, when the U.S. Supreme Court held that, contrary to the spirit of the 4th Amendment, modern technology afforded the government significant opportunities for invading personal privacy without intruding into physical space. The court rejected the idea that only searches and seizures of tangible property were protected by the amendment and expanded the amendment's protections to invasions of personal privacy even when no physical trespass occurred. Since Katz, the police can only monitor a conversation pursuant to a warrant signed by a judge and based on a showing of "probable cause."

LAPD officers have avoided revealing the existence of their electronic intercepts using a police procedure known as "the handoff technique." It works like this: Narcotics officers on "Team A" set up a wiretap to gather information on a suspect. Without identifying the source of their information, the officers turn over the wiretap's "intelligence product" to detectives from "Team B," also members of LAPD's narcotics unit. Using the intelligence product, "Team B" officers set about trying to gather facts independently that would provide "probable cause" for a second judge to sign a search warrant targeting another suspect, without the cops disclosing the existence of the first wiretap to the jurist.

It is not hard to imagine the potential harm from this police-prosecution malfeasance. If an investigation focused on a pharmacist, for instance, the police would have a taped record of every prescription for every patient and physician who called the pharmacy. By law, these wiretaps are preserved for 10 years, so the potential damage to an innocent citizen having his or her private calls intercepted is significant.

What aggravates the misconduct is the likelihood that neither the police nor the "wiretap judge" followed the legal requirement that the police file written progress reports every 72 hours, and that the judge make a decision every 72 hours on whether a tap can continue. There is strong reason to suspect that neither the judiciary nor the Legislature has been "minding the store." For example, a judge issuing a wiretap order must inform any person whose voice was wiretapped within 90 days and supply the person with an inventory of what was recorded. Similarly, Atty. Gen. Dan Lungren is required to provide a detailed report to the Legislature and state Judicial Council each April regarding the number and duration of all wiretaps conducted by every law-enforcement agency in the state. As of last week, neither the Judicial Council nor Chairman John Vasconcellos' Senate Public Safety Committee could find a copy.

Finally, no public defender or private criminal lawyer has been given the legally required inventory since 1985, when the secret wiretaps began. According to Public Defender Michael P. Judge, the public record discloses only three reported wiretaps by local law enforcement during 1997--two by the LAPD and one by the county Sheriff's Department. It is simply mind-boggling that, for the last 13 years, on hundreds of occasions when the court or opposing counsel have asked prosecutors whether they have turned over all defendants' and co-defendants' statements, they have been lied to or misled.

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