Pubdate: Fri, 06 Oct 2000
Source: Los Angeles Times (CA)
Copyright: 2000 Los Angeles Times
Contact:  Times Mirror Square, Los Angeles, CA 90053
Fax: (213) 237-7679
Author: Matt Lait, Scott Glover, Times Staff Writers
Bookmark: MAP's items on the Rampart scandal:


Rampart: Defense Attorneys Often Are Not Given Key Information. Scandal
Intensifies Calls For Reform.

The sensational revelations emerging from the LAPD's Rampart corruption
scandal have sparked a bitter legal debate that promises to alter the
landscape of the criminal justice system in Los Angeles County for years to

At issue is exactly what defense attorneys are entitled to know--and when
they are entitled to know it--about the credibility of the police officers
who investigate, arrest and testify against their clients.

The Times has uncovered numerous instances in which police and prosecutors
failed to provide defense attorneys with relevant information about
officers, including a previously undisclosed case involving Rafael Perez,
the convicted drug thief and ex-LAPD officer at the center of the scandal.

Even before the Rampart scandal, defense lawyers contended that criminal
defendants in Los Angeles courts were routinely denied fair trials because
police and prosecutors either failed to discover--or to
disclose--information that might lead judges or juries to doubt an officer's

"The system is broken," said Gary S. Wigodsky, a deputy alternate public
defender who is a leader in the call for reform. "Thousands of cases are
falling through the cracks. The Rampart scandal is just a symptom of the
problem, not the cause."

Prosecutors acknowledge that there is debate even within their own ranks
about whether they are fulfilling their constitutional obligation to turn
over information regarding officer credibility that may be favorable to the

At a recent court hearing, Judge Larry P. Fidler asked Deputy Dist. Atty.
Brentford J. Ferreira what the D.A.'s policy is on disclosing such

"You got me," Ferreira said. The prosecutor added that officials in his
office were devising a formal policy. Obtaining information about the
credibility of police officers is crucial, defense attorneys argue, because
jurors almost always will accept the word of a police officer over that of
the accused. By law, prosecutors are supposed to give a defendant any
exculpatory information, including material that may undermine the
credibility of the officers in the case.

But such disclosures are not always made, and that can mean the difference
between conviction and acquittal.

For example, when James Bryant went on trial in 1997 on charges of selling
cocaine, jurors were never told that the officer testifying in the case had
been relieved of duty and was facing drug allegations of his own. That
officer, Gustavo Raya, eventually was fired from the department for drug

In August, Superior Court Judge Darlene Schempp threw out Bryant's drug
sales conviction based on the revelations about Raya, which the judge read
about in a June article in The Times.

After that Times report, prosecutors sent out letters informing defense
attorneys about Raya and Mark Haro, another officer named in the article,
who has resigned from the LAPD. He was found guilty at an administrative
hearing of, among other things, illegal drug possession and plying an
informant with crack cocaine for information.

Officers' Records Often Not Shared

But there have been numerous officers found guilty of such offenses as lying
and stealing whom defense lawyers say they have never heard of and whom
prosecutors have not included on a list of officers about whom they have
made notifications.

According to the district attorney's list, which the office began compiling
only after the Rampart scandal broke, no notifications were sent out on:

* Officer Thomas Lira, who was fired from the LAPD for, among other things,
allegedly failing to book drugs as evidence and possessing and using illegal
drugs, according to police and D.A. documents.

* Officer Juan Serrato, who was found guilty at an LAPD board of rights
hearing of intentionally filing a false police report and fired because "his
ability . . . to provide accurate and credible testimony is irreparably
harmed," according to police documents.

* Training Officer Rodney Peacock, who tried to coerce information from a
suspect by dropping a pebble in the man's shirt pocket and implying that he
was going to frame him on a crack cocaine possession charge if he did not
cooperate, according to police documents.

* Det. Martin Chalupa, who filed a false police report stating that his car
had been stolen when in fact he sold it, according to police and D.A.
documents. An innocent man was arrested and taken to jail as a result.

These cases, which have not been previously publicized, are just a few
examples of officers found guilty of offenses that bear on their
credibility. The LAPD has no formal system of informing prosecutors of these
disciplinary decisions.

This has become a key area of interest in the wake of the Rampart scandal.

The Times, through a public records request, obtained thousands of LAPD
disciplinary records dating back to 1995, which were then entered into a
computer database. The records show that the LAPD each year terminates or
severely disciplines dozens of officers who have been found guilty by
departmental trial boards of various offenses, including lying during
official investigations, that could taint their credibility in court and
affect the outcome of criminal trials. Many of the officers remain on the

When lawyers in the public defender's and alternate public defender's
offices became aware of The Times' undertaking, they launched similar
projects. The defense lawyers plan to use the public information about
officer discipline to help ensure that they know everything they should
about an officer.

But Los Angeles County Public Defender Michael P. Judge said these projects
offered no long-term remedy. "The clear and basic duty of prosecutors to
disclose such critical information is essential for a jury or a judge to
accurately decide who is really telling the truth," Judge said. "It is
imperative that the leaders of the state Assembly and Senate immediately
enact sensible reforms to . . . rectify this manifest injustice."

Even when the allegations against officers are serious enough to warrant
potential prosecution and are forwarded to the D.A.'s office for review,
there is no guarantee that prosecutors will turn that information over to
the defense.

The D.A.'s Special Investigations Division, for example, has files on
hundreds of LAPD officers accused of crimes, including perjury, assault,
theft and drug use. In most instances, prosecutors have declined to file
charges, but the information provided by the LAPD in support of its criminal
allegations against the officers remains in the possession of the district

But what, if anything, are prosecutors required to do with it?

That is now the subject of a fierce debate--one that has captured Judge
Fidler's attention.

Fidler, who personally has overturned nearly 100 criminal convictions as a
result of alleged police corruption, has agreed to hear arguments from
defense attorneys that the system by which they are to be informed of police
officer credibility is so fundamentally flawed that it undermines the
integrity of the criminal justice system itself.

There are two ways in which defendants should be informed of information
that may cast doubt on the credibility of their accusers. The first, which
is applicable nationwide, is based on a U.S. Supreme Court decision in a
case titled Brady vs. Maryland.

The legal standard established in that case is that a conviction must be
reversed--or penalty annulled--if the prosecution withheld information
likely to have affected the trial's outcome. The court later broadened the
Brady doctrine to include potentially damaging information about witnesses,
including police officers, which might be used to impeach them on the stand.

Prosecutors, the court has held, are responsible for obtaining such
information and for providing it to the defense, even if the information is
in the possession of the police.

California defendants also may gain access to information concerning the
credibility of police witnesses under a state case titled Pitchess vs.
Superior Court. In that case, which applies only in California courts, a
judge decided that a defendant who claimed that he was beaten by police had
the right to know whether the officers had other excessive force claims
lodged against them.

The Pitchess decision has since been expanded to allow defense attorneys
access to complaints against officers involving offenses of "moral
turpitude," such as theft, drug sales, filing of false reports and perjury.
Defense attorneys seek this information by filing what is known as a
"Pitchess motion." In such a motion, the lawyers spell out for the judge the
specific type of misconduct they suspect an officer of committing in the
case at hand and ask for any similar complaints made against the officer.

A designated Police Department employee then searches the officer's file for
relevant complaints, which are turned over to the judge. The judge decides
which complaints, if any, the defense is entitled to know about and turns
over the corresponding names. The Legislature since has voted to limit a
defendant's access to complaints lodged within the previous five years.

But according to defense lawyers, and even some prosecutors and judges,
neither "Brady" nor "Pitchess" works as it should.

"Pitchess isn't just broken," said Judge Fidler, during a hearing at which
he overturned another corruption-tainted conviction this week. "It's a
runaway train. . . . Someday that train is going to crash."

Information Is Withheld

Even in the wake of the Rampart scandal, critics charge, the district
attorney and the Los Angeles city attorney still fight to withhold
information that portrays police officers in a negative light.

Two weeks ago, prosecutors dropped two potential bombshells on defense
lawyers representing LAPD officers accused of crimes by ex-Officer Perez. It
was disclosed that one of Perez's former lovers said she witnessed Perez
engage in a major cocaine deal years before he admits to being involved in
any crimes, and that a jailhouse informant told detectives that Perez
boasted that he could subject anyone to investigative scrutiny by simply
"[throwing] their name into a hat."

For months, LAPD investigators had been aware of this information, which may
further undermine Perez's credibility, but withheld it from prosecutors. As
a result, it was not turned over to defense lawyers until the week before
their clients' trial is scheduled to begin.

Barry Levin, who has worked for 20 years as a defense lawyer after spending
12 as an LAPD officer, said he was not surprised by the delay.

"You're talking to a rather cynical old attorney," said Levin, who is
representing one of the accused officers. "Fifteen years ago, I would have
been outraged. Now, I'm so used to this that I just think to myself, 'Thank
God I have this' as opposed to 'How could they do this to me?' "

Some prosecutors, including California Atty. Gen. Bill Lockyer, believe that
filing a Pitchess motion "provides an acceptable means" for defense
attorneys to obtain information on officer credibility.

Motions Not Always Useful

But Pitchess isn't always the answer.

Two years ago, Deputy Alternate Public Defender Upinder Kalra filed a
Pitchess motion on Perez, the man at the center of the Rampart scandal.

Kalra was defending Jesus Avalos, who was charged with being a felon in
possession of a weapon. According to court papers, Perez testified at a
preliminary hearing that he and fellow officers recovered the gun after
being given permission to search the house where Avalos lived.

On May 7, 1998, Kalra filed a Pitchess motion seeking allegations of "acts
of dishonesty" against Perez and three other Rampart Division officers, two
of whom have since been criminally charged in connection with the corruption

"The defense has information that Officer Perez's story is false," Kalra
wrote. "The defense to these charges may be that the officers are lying and
. . . fabricating receiving consent to justify their illegal search and
arrest of Mr. Avalos."

A week later, an analyst from the LAPD's legal affairs section declared
under penalty of perjury that there were no complaints against any of the
officers alleging "acts of dishonesty."

But according to confidential LAPD internal affairs logs obtained by The
Times, the LAPD had three months earlier referred a criminal case alleging
theft and unlawful search by Perez, his partner Nino Durden and another
officer. The case was rejected a month later by the city attorney. Perez
since has admitted that the allegations were true.

There are other cases that raise questions about the usefulness of filing a
Pitchess motion. Two weeks ago, Superior Court Judge Kathleen Kennedy-Powell
seemed incredulous when an LAPD official told the court that there were no
excessive force complaints or other relevant information on LAPD Officer
Ronald Orosco, who was scheduled to testify in a trial in her courtroom. In
fact, just 24 hours earlier Orosco had been arrested and charged with
assault with a deadly weapon after allegedly shooting an unarmed man in the

"It disturbs me that there's a situation where there is an actual criminal
filing, not just a complaint made to internal affairs . . . which is not
contained anywhere in his personnel file," Kennedy-Powell said. "It
certainly brings the integrity of this review process into question."

Similar questions arose during a recent murder case in the San Fernando
Valley. In that case, Deputy Public Defender Daryne Nicole filed a Pitchess
motion seeking information about the two investigating officers, one of whom
is a former Rampart Division officer, Brian Liddy, who has since been
criminally charged in connection with the scandal.

The LAPD's custodian of records initially told the court that no relevant
complaints had been made against either officer. But after ordering the LAPD
to bring both officers' personnel files to court for him to personally
review, Judge Michael B. Harwin ruled that, between the two officers, there
were a total of nine complaints that the defense should see.

Such problems are not unique to Los Angeles County. One of the most
outspoken proponents of aggressive disclosure is L. Douglas Pipes, a senior
deputy district attorney in Contra Costa County.

Pipes, the coauthor of a book on discovery in criminal cases, said
prosecutors have an absolute responsibility to divulge any exculpatory
information possessed by the prosecution team, which includes the Police

Pipes said he realizes that asking fellow prosecutors to seek information
that could conceivably hurt their cases may be hard to swallow.

"But we wear the white hats. And we wear the white hats for a reason," Pipes
said. "Our job is to produce just results."

* * *

Undisclosed Allegations

Three months before Rafeal Perez was charged with stealing cocaine from the
LAPD, a defense lawyer representing a man Perez had arrested on a gun charge
filed court papers seeking disclosure of any complaints of "acts of
dishonesty" against Perez and the other arresting officers.
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MAP posted-by: Don Beck