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THE RAMPART VERDICTS

'A Badge Is No Longer a Shield'

November 16, 2000|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

The conviction of three Los Angeles police officers on corruption charges represents a watershed for the city, legal observers said Wednesday, because it signals that jurors here no longer automatically give credence to the men and women who are sworn to serve and protect.

"In Los Angeles, a badge is no longer a shield," said Santa Monica defense lawyer Gigi Gordon, who has followed the Rampart case closely.

Former federal prosecutor Laurie Levenson, now a professor at Loyola Law School, said questions the jurors gave to the judge to ask of witnesses during the trial showed that they were focused on the credibility of police witnesses with faulty memories.

Credibility of witnesses is an area in which appellate courts generally do not second-guess juries. The fact that the case seems to have turned on credibility is likely to mean that defense lawyers face a difficult job on appeal, both defense- and prosecution-side experts said.

Most of the major evidentiary rulings in the case went in favor of the defense, they added, removing another potential avenue of appeal.

Indeed, many attorneys said they were surprised by the guilty verdicts because of the rulings on evidence, prime among them Judge Jacqueline Connor's decision barring five civilian witnesses who prosecutors thought would corroborate one of the charges.

Moreover, the prosecutors lost the man who seemed to be their key witness, former LAPD Officer Rafael Perez. Perez has already admitted stealing cocaine from police evidence lockers, framing innocent people and other misconduct.

Shortly before the trial, a former girlfriend, Sonia Flores, alleged to federal investigators that Perez had been involved in murder. She recanted once the case had gone to the jury, but in the meantime, prosecutors felt that they were unable to put Perez on the stand.

"You have to give enormous credit to the prosecutors, who didn't have a videotape, didn't have DNA and didn't have a star witness. They had what you have in an ordinary case--dirty witnesses and inferences," Levenson said.

Perez's absence actually may have helped prosecutors, said several experienced attorneys.

Both Gordon and Samuel R. Paz, a veteran civil rights lawyer, said defense lawyers may have "overplayed their hand" in opening statements when they told the jurors they would show that Perez had committed murder--referring to the allegations made by Flores. Because Perez never testified, the defense lawyers had no occasion to question him about those allegations.

"The defense said they would discredit Perez through Sonia Flores, and they didn't. The jurors probably anticipated that they would hear evidence that would destroy Perez, and they didn't get it," Gordon said.

Such "overreaching" erodes credibility with jurors, Paz said.

Moreover, because Perez did not testify, the trial did not become a referendum on his credibility, Levenson said. Rather, the trial focused on the credibility of the officers, who testified in great detail about certain events while claiming faulty memories about others, Levenson and other lawyers said.

"These jurors are much smarter than we give them credit for," said veteran defense lawyer Andrew Stein, who has represented a number of police officers in the past.

"The questions they asked from the beginning about the faulty memories of officers" subpoenaed to testify for the prosecution "showed that they knew what was going on," Stein said. "They saw the code of silence unfolding right in front of their eyes."

But Judge Connor's willingness to let the jurors pose written questions to the witnesses--filtered through her--drew after-the-fact criticism from defense lawyers.

Attorney Harland W. Braun, who represented defendant Michael Buchanan, said that in asking questions, "the juror ceases to be a judge sitting back and awaiting judgment. They begin posturing. They seemed to be taking positions, and that's the danger of jurors being allowed to participate in the proceedings."

Connor permitted the questions as a way of making it easier for jurors to assess testimony. Defense lawyers did not object to the ruling when Connor made it. But after the verdicts, Braun said the decision might be one ground of appeal.

"We thought it would be OK, but then it began to swing out of control," Braun said. "I've had trials where jurors could ask questions before. But usually it's three or four questions in an entire trial. Here, we had at least 60 or 70. A lot seemed to be from juror No. 3, the foreman."

Unfortunately for the defense, the fact that attorneys did not object to the ruling at the time it was made may make the issue difficult to pursue on appeal.

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