Kennedy-Powell did not explain why, if she thought this question was so important, she had not asked it herself. She just said: "I think the bottom line is the witness was never asked by either side, but particularly by the defense, whether he had an opportunity to see the defendant's hands. He was asked whether he saw a gun and he said no, but he was never asked whether he had an opportunity to see the defendant's hands and whether there was anything in his hand at all."
Declaring that the question was "an issue for the jury," the judge again ordered Peralta to stand trial.
Brown was disgusted. "You have a bench appointed by a series of Republican governors. That's the systemic issue," he said. "They are unwilling in large part to dispense with criminal proceedings that ought to terminate at an early stage. They are one step short of rubber stamps."
Thanks to judicial appointments by a series of conservative Republican governors, California judges more often than not are former prosecutors. Jean Guccione, a reporter for the legal newspaper the Los Angeles Daily Journal, has found that 56% of Gov. Pete Wilson's appointees and 65% of Gov. George Deukmejian's served as prosecutors. Deukmejian alone appointed more than 1,000 judges, or 55% of the state's bench, including Kennedy-Powell. Only 7% of Wilson and Deukmejian appointees had experience as public defenders. The rest were civil lawyers.
Brown did not think that prosecutors would ever agree to dismiss the case against Peralta, because a dismissal would offend police and might harm police chances to prevail in any civil litigation that arose from the shootings.
So he urged his client to take a deal if a good one was offered.
"When I talk to a client who is denying guilt about accepting a plea, I talk as if they're in the process of buying insurance--a form of protection," Brown said. "You don't want to wind up . . . getting convicted [at trial] when you're truly innocent and getting a ridiculously long sentence."
Months went by. Finally, prosecutors offered Peralta a deal too good to refuse.
They promised they would let him go if he would just say he did it.
Peralta pleaded no contest to assault and guilty (via People vs. West) to having been armed. He was placed on probation. He had spent 305 days in jail.
Before accepting the deal, Superior Court Judge Robert O'Neill, a Wilson appointee and former prosecutor, wanted to make sure of one thing--that it was OK with the police.
"I understand the basis for this disposition is the fact that there are factual difficulties," the judge said. "Indeed, this disposition has been run past the agency that employed the individuals in this matter, is that correct?"
Assured that the answer was yes, he let it go through.
Framed Man Pays Price for Not Pleading Guilty
Javier Francisco Ovando became the Rampart scandal's object lesson in why an innocent man should consider pleading guilty.
He met his lawyer for the first time at his preliminary hearing, when ambulance attendants wheeled him into the courthouse on a gurney.
At the time, the lawyer had 27 other clients, all facing felony charges. Ovando was the only one who had been shot in the head.
He told the lawyer that he was innocent. But he also told her, she has said in court, that he did not remember what had happened.
That was a big problem for the defense. It left no one to rebut the police.
Officer Perez and his partner, Durden, testified without contradiction that Ovando, armed with a machine gun with a filed-off serial number, had invaded the darkened fourth-floor apartment that they were using as a clandestine post from which to observe gang activity on the street below.
There was a "large bang" as the apartment door was forced open, Perez testified; then light from a brightly lit hallway spilled in, along with the intruder.
As Perez and Durden reacted by shining their flashlights on Ovando, they said they realized he was pointing his gun at Durden.
Perez said that he warned Durden by shouting, "Gun, gun, gun!" and that Durden yelled, "Police officer! Drop it!"
When Ovando didn't, Perez and Durden both testified, they shot him.
The prosecution's theory was that Ovando had gone to the apartment on behalf of the 18th Street gang, which he belonged to, to assassinate nettlesome police.
But to Ovando's lawyer, Deputy Public Defender Tamar Toister, the prosecution's theory did not comport with the police account. For one thing, if Ovando had intended to ambush the police, why would he have announced his presence with a loud bang? Why would he have walked into a darkened room from a brightly lit hallway--a transition that would have required time for his eyes to adjust? If he really were a gang assassin, wouldn't it have made more sense for him to have lured the police from the darkened room into the brightly lit hall? And why didn't he fire his weapon or at least put a bullet in the firing chamber? It was loaded, but the chamber was empty.