Pubdate: Sat, 04 Aug 2001 Source: Pasadena Star-News, The (CA) Website: http://www.pasadenastarnews.com/ Address: 911 E. Colorado Blvd., Pasadena, Calif. 91109 Contact: http://www.pasadenastarnews.com/s-asp-bin/sharedsitepages/feedback.asp?puid=1451 Copyright: 2001 MediaNews Group, Inc. and Los Angeles Newspaper Group, Inc. Fax: (626) 432-5248 Author: Howard Breuer 3-STRIKES CASE STIRS NEW LEGAL DEBATES PASADENA -- Attorneys introduced a new legal debate Friday to the battle over a minor drug offender facing life under the state's three- strikes law. A defense attorney complained Friday that the District Attorney's Office went "forum shopping," and violated Dale Sheldon Barnes' constitutional rights when it simultaneously refiled his case and disqualified the judge who dismissed it last week. Legislators who created the law allowing the refiling wrote that it "shall not be construed as a means to forum shop." The law also requires that the case return to the original judge if he's available. However, a judge said Friday that the original judge must be considered unavailable because of the disqualification -- a point of law that Los Angeles public defenders are already appealing to the state Supreme Court in another case. "When a judge is disqualified, a judge is unavailable," said Pasadena Superior Court Judge Teri Schwartz, who also set an Aug. 14 preliminary hearing. Barnes' defense attorney, Beatrice Ingram, said she'll stall the hearing as she appeals Schwartz's ruling and awaits a decision on the state Supreme Court case. "This is not an ordinary three-strikes case," De Carteret insisted Friday. "This is a 15-strikes case." But Pasadena Superior Court Judge Terry Smerling -- a former staff attorney for the American Civil Liberties Union who has lobbied for a liberalization of the three-strikes law -- sees the case differently. The first time the case was in front of him, Smerling set aside most of Barnes' strikes and sentenced him to eight years. An appellate court found that Smerling abused his discretion and overturned the sentence, but the case returned to the same judge. During an evidentiary hearing last week, a witness contradicted Pasadena police accounts that Barnes was seen dropping a plastic bag of cocaine on April 15, 1998, outside his home at 1579 N. Raymond Ave. The witness said Barnes didn't drop anything, and that police searched him. Smerling said he was swayed by the witness's testimony. He ruled the search improper and dismissed the case -- prompting De Carteret to suggest Smerling was just looking once more to spare Barnes a life sentence. "I don't know if the court has a personal interest vested in this case," De Carteret told Smerling, "but there's no reason for the officer to have lied." - --- MAP posted-by: Josh Sutcliffe