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Wednesday, May 31, 2006

DA's I Know And Love

I spent the day in one of the LA County Branch courts and ran across a few of the DA’s I used to try cases against in the old days.

Back then when I was in the same courts every day for years, I got to know which DA’s were the “good guys” and which I had to step around. They got to know that I was okay too and it was a good working relationship. The system worked better than it would have — far better than it works today when nobody trusts anyone.

My DA friends were all riled up about a US Supreme Court decision that was reported today in the LA Times. No, it wasn’t a reversal of a guilty criminal’s conviction on a technicality. It was much worse than that in their eyes.

I agree with them - and I’m proud of my friends for being so pissed off.

A few years ago, a DA in Pomona was assigned to prosecute a case based on a search warrant. The defense lawyer told the DA that the affidavit supporting the warrant was based on a lie - the officer could not have seen what he claimed to see on the premises. The DA did his job and went to see for himself. He came to the same conclusion and it bothered him. He wrote a memo to his superior stating his doubts about the officer’s veracity.

The superior at first agreed with his deputy DA, but when pressed by the police who were offended, backed off and ordered the case to proceed. The doubting DA was removed from the case, and eventually testified for the defense to his own observations when he was subpoenaed.

Eventually, the DA was disciplined by his superiors. He was transferred to misdemeanor prosecutions, denied promotion, and sent to a courthouse that was further away from his home.

He sued his boss, LADA Gil Garcetti. Gil had been in trouble with his troops because they felt his policies were arrogant, elitist, and unsupportive of the rank and file. He had a reputation for punishing critics and placing loyal cronies in high positions.

The US Supreme Court was torn between two lines of precedents. In the 1960's, the Warren court had limited the power of governmental agencies to discipline employees who spoke out on issues “of public concern” based on the 1st Amendment. But in the 1980's, the Court had upheld the power of government to discipline employees for violations of internal policies. These two lines of precedent meant that a decision would rest on personal philosophy of each of the justices.

When Justice O’Connor retired, the vote was 4-4. Now it was reargued after Alito was affirmed and the vote was now 5-4, ruling that the DA had the power to discipline the deputy for his violation of policy.

The other majority votes were Scalia, Thomas, Kennedy, and the new CJ Roberts. The Court skirted the Free Speech issue by implying that an employee could not be disciplined if he went to the press.

Garcetti had been voted out of office - not because he was unpopular with his deputies - but because he “lost” the OJ Simpson case. He was replaced by Steve Cooley, who had always been one of the good guys. Cooley was now quoted by the Times as praising the decision because you can’t run an office when a deputy can run to federal court every time you discipline him for deviating from policy.

Steve is now seen by many DA’s as no better than Gil - a power mad, paranoid bureaucrat. Say it ain’t so, Stevie.

The trial DA’s in the trenches - at least the “old school” ones who I know and respect - were upset because they view their profession as one of high responsibility. They are aware of their power over the individuals they prosecute and try to walk the same line good defense lawyers do - try to win but within the rules.

A DA who doubts the truth of his witnesses, especially police officers, has a duty to speak out - at least to his superiors. The effect of the decision in this case is to send a message that scruples will be punished.

There is always pressure put on prosecutors to “support” the police, who have made the arrests they are prosecuting. Police are always looking to blame the DA when they refuse to file a case because of a “bad search” or slipshod investigation, accusing them of lack of aggressive prosecution of criminals.

DA’s aren’t rewarded for timidity or leniency, but for winning - especially winning “hard cases” where the evidence is thin. The DA who asserts his oath to only prosecute cases he had confidence in is often looked on in this culture as a wimp.

One of the DA’s I talked to pointed out that the Rampart scandal was touched off by a memo by a deputy DA to his superior about police misconduct. “So, we’re supposed to tell the story to a newspaper, but not our own bosses? Who has the guts to do that?”

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