Federal prosecutors have concluded that former Los Angeles Police Officer Rafael Perez's immunity deal, which secured his cooperation in rooting out LAPD corruption in return for a promise that he not be prosecuted by the district attorney's office, does not protect him from being charged criminally in federal court, sources said Friday.
As a result, Perez--who is scheduled to be released from jail in several months--faces the possibility of many more years behind bars.
If federal prosecutors are correct, and Perez's immunity deal with the Los Angeles district attorney's office does not bar them from pursuing a case against him, he could be charged with crimes stemming from his admitted involvement in unjustified shootings, robberies and the framing of innocent people.
Not all of those alleged offenses are covered under federal statutes, but those laws do address such crimes as civil rights violations--including the intentional use of excessive force by police.
The prospect of federal charges against Perez adds yet another twist to the 16-month-old corruption investigation. One apparent effect, according to sources familiar with the investigation, is that Perez has stopped cooperating with police and prosecutors.
Recently, Perez's attorney has not made his client available to testify at the disciplinary hearings of officers accused of corruption-related offenses.
"I think it's kind of a wait-and-see thing," said one Los Angeles Police Department official who asked not be identified. "But he's not available right now."
That official said there are "a handful" of pending cases that could be jeopardized if Perez does not testify.
It is unclear what role, if any, Perez would have in future criminal cases against other LAPD officers.
Attorney Winston Kevin McKesson, who represents Perez, declined to answer detailed questions about the status of his client's dealings with authorities, or lack thereof.
McKesson acknowledged that Perez has not participated in some recent hearings, but said that was the result of McKesson's scheduling conflicts.
"I am not going to discuss my legal strategy at this point," McKesson said. "But Mr. Perez has and will continue to live up to all of his obligations."
U.S. Atty. Alejandro N. Mayorkas declined to comment on his office's investigation into Perez and other LAPD officers.
Sources said McKesson and Mayorkas are scheduled to meet next month on the federal government's possible case against Perez.
Legal and public policy questions are certain to be debated if federal prosecutors do press forward and attempt to charge Perez. McKesson has contended that Perez's immunity deal protects him from federal prosecution. A judge ultimately would probably have to resolve that question.
Some legal scholars think the government could prevail.
Laurie Levenson, a professor at Loyola Law School and a former federal prosecutor, said she has reviewed Perez's plea agreement and does not believe it prevents federal prosecutors from pursuing a case against the onetime anti-gang officer.
"On the face of it, there is nothing in the deal that prevents federal authorities from going after Perez," Levenson said.
A tougher legal question, she said, is whether his statements to investigators can be used as evidence against him.
Criminal defense attorney Jan Lawrence Handzlik, another former federal prosecutor, agreed with Levenson that the U.S. attorney's office could pursue a criminal case against Perez if he does not have federal immunity.
But he said prosecutors "will have a tough row to hoe" if they intend to use witnesses who have had access to Perez's testimony, much of which has been widely published and broadcast and is posted on the Internet.
Handzlik cited a court decision involving a case against former National Security Advisor John M. Poindexter, a figure in the Iran-Contra scandal during President Ronald Reagan's administration.
In that case, judges ruled that prosecutors could not proceed with witnesses who might have had access to Poindexter's testimony before Congress, which he was compelled to give after being assured that it could not be used against him in any criminal proceeding.
"That prevented a successful prosecution of Poindexter," Handzlik said. "The same may be true with Perez."
So stringent are the rules regulating access to compelled statements that prosecutors themselves may not be exposed to the statements without jeopardizing convictions.
Aside from the legal complexities, one law enforcement source close to the corruption investigation questioned the fairness of going after Perez, the whistle-blower who exposed the alleged criminal behavior by LAPD officers after being caught stealing cocaine from an evidence locker.
"What does this say to the next guy we want to make a deal with?" asked the source. "None of this would have happened without Perez."
Perez opened the lid on what has become known as the Rampart scandal in September 1999, when he agreed to identify allegedly crooked fellow officers in exchange for a five-year sentence for stealing the cocaine.
Over the next year, in a series of secret debriefings, the former Rampart Division officer proceeded to implicate dozens of his former colleagues. So far, none of them have gone to jail.
Three were recently convicted of crimes only to have those convictions overturned by the judge, who ordered a new trial. That decision is being appealed by the Los Angeles County district attorney's office.
A fourth officer, Nino Durden, is facing a trial later this year on charges of attempted murder. The victim of that shooting, Javier Francisco Ovando, was paralyzed by the shot and sued the city. The City Council recently approved a $15-million settlement in that case.