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Saturday, December 19, 2009

While I Sit On The Sidelines ...

During my forced hiatus from the practice of law, I have tried to keep up with the news that always swirls around the courthouses which have been my milieu for almost forty years. One way to keep up is simply to read the daily newspaper. Today, for instance, three articles referenced cases involving lawyers I’ve known for many years.

The first of these is an article which notes the unusual fact that Los Angeles County, in the past year, has bucked the national trend of reduced death verdicts. In L.A., thirteen death penalties were ordered by juries. This seems to be a statewide trend. California death verdicts have also risen.

The reasons for the data are debated. Steve Cooley, LA DA, thinks it is a partially a fluke, considering the fact that these cases take many years to come to trial. But he did claim that his office has been more "selective" in choosing which cases to pursue, which may account for the higher percentage of death sentences meted out.

My good friend, Robert Schwartz, an experienced defense lawyer, pointed out that jurors have become hardened to mitigation evidence about abused and deprived childhoods of violent criminals. The article also speculates that judges have tightened procedures to encourage more severe verdicts.

I’ve found that there is truth to all of these points. And there is another, that the article doesn’t underline. Jurors are well aware of the fact that California has a moratorium on executions, and has performed ONLY thirteen executions, while almost seven hundred rot on death row. Just as the existence of a credible alternative of ‘life imprisonment without possibility of parole’ has been shown to reduce the number of death verdicts, as was recently reported in Texas of all places, the suspicion that a death verdict will never be enforced is conducive to more of them being issued.

One of the judges who is often cited as having an agenda that includes a preference for death verdicts made the news in another case, non-capital case. Mark Overland, a former public defender, and one of the best lawyers anywhere, is representing Ms. Lazarus, the LAPD officer accused of killing a romantic rival more than twenty years ago. After the pro forma ruling that ordered that she be brought to trial, the judge set bail at $10 million dollars in cash, an extraordinarily high amount, tantamount to a denial of any bail. This is higher, as Overland observed, than the bail set for Phil Spector. The judge justified this act by citing her accessibility to guns, because she is married to a cop, and his subjective belief that she would probably flee the jurisdiction to avoid prosecution.

In another article, a second degee murder conviction is reported. The case, defended by my friend Dave Houchin, had resulted in two mistrials due to hung juries when tried in the Central L.A. courthouse. Once transferred back to the Antelope Valley where the crime occurred and the where extremely vocal victim’s family members lived, a compromise verdict of 2nd degree was achieved after three weeks of deliberation, in a case which relied on circumstantial evidence and the defendant had steadfastly asserted his innocence.

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