Friday, February 20, 2004
Page 5
JUDICIAL ELECTIONS: Los Angeles Superior Court Office No. 72
Three Challengers Cite Wesley’s Role in Release of Criminal Defendants
By KENNETH OFGANG, Staff Writer
It wasn’t supposed to happen this way.
David Wesley, about to become supervising judge of the criminal courts, universally regarded as hardworking and low-profile, would normally have breezed to a new six-year term.
He was a 1997 appointee of then-Gov.—and fellow ex-Marine—Pete Wilson, and a former State Bar Court judge and Superior Court commissioner who had built solid relationships with law enforcement while retaining the support of his former colleagues in the defense bar.
He would have run unopposed, as 97 percent of the incumbents are this year, or would have faced a little-known opponent with little traction and won comfortably, as other challenged incumbents have been.
Then came the fallout from May 28, 2003. The story is by now familiar to those who follow the local courts.
Div. 30, the arraignment court, had “been a problem for—over 10 years, maybe 15 years” because “the 2 o’clock filing deadline [had] been honored in its breach,” Wesley says. Cases had traditionally piled up over weekends, causing a crunch as the two-day limit for arraigning suspects approached.
At the time, the detectives responsible for preparing case paperwork for the filing deputy district attorneys were not working weekends, and Wednesdays after Monday holidays—May 26 was Memorial Day—were the busiest days.
The reason for the 2 p.m. deadline, Wesley explains, is that it takes about 21/2 hours from the time the case is filed for the court and the defense to get the paperwork, and for an attorney to be assigned and to interview the defendant if he or she is indigent.
Only then can the defendant be arraigned, Wesley noted, so that if the case is filed after 2 p.m.—the latest deadline of any Southern California county, the judge explains—the defendant is unlikely to be arraigned by 4:30 p.m., the “normal” end of the court day.
Late Hours Normal
So staying late became fairly normal for Commissioner Jeffrey Harkavy and the lawyers and staff assigned to Div. 30, placing the burden on Supervising Judge Dan Oki to try to resolve the problem. The courts were facing a severe budget crunch and the late hours in Div. 30 were resulting in costly overtime for court staff.
On May 28, it all came to a head.
Oki ordered Harkavy to stop arraigning defendants at 4:30 pm. That left more than 60 arrestees from the weekend.
Harkavy ordered them to return to court the next day. Most of them remained in custody, held on other charges, warrants, or for probation violations.
Some 26 were released. One of them—Jerrell Patrick, who was arrested the previous Friday but was not charged until 3:33 p.m. May 28, according to court records—is charged with a subsequent murder.
Wesley, who was the assistant supervising judge at the time, says he is being blamed for a decision that Oki made, and that has since been “fixed as a result of the work done by all of the parties” including the court and the District Attorney’s Office.
Wesley left the building before 3 p.m. to conduct a session of Teen Court at Dorsey High School, a project he initiated several years ago. His sole role in the process, he said, was going to Harkavy’s chambers, along with Judge C.H. Rehm Jr.—who had direct oversight of the arraignment courts—to inform Harkavy of Oki’s order.
He had no idea or expectation that defendants were to be released, he says. If he had, he says, admittedly in hindsight, he would have insisted that every defendant who appeared to represent a danger to the public be arraigned.
Need for Releases Questioned
He adds, however, that a magistrate had made probable cause determinations on Patrick and other defendants the previous Sunday, so that there was no legal requirement that Patrick be released. And in any event, he notes, Patrick had an outstanding warrant that was overlooked by the Los Angeles police, the Sheriff’s Department, and the District Attorney’s Office, and about which the court had no way of knowing.
Wesley points out that he has been endorsed by Sheriff Lee Baca, District Attorney Steve Cooley, and Los Angeles Chief of Police William Bratton.
He is also hopeful of securing the endorsements of the major newspapers. He won the backing yesterday of the Daily Breeze, a South Bay newspaper that is supporting a challenger to Oki.
The Breeze noted that Wesley is rated “well qualified” by the County Bar—his opponents all hold the lesser rating of “qualified.” The newspaper said Wesley should not be held responsible for the events of May 28 because he was “only tangentially involved...essentially serving as the messenger.”
Wesley’s opponents, Los Angeles Police Dept. Sgt. Kevin Burke, Deputy District Attorney Daniel Bershin, and retired Deputy District Attorney Herbert Lapin, designated on the ballot as a “Crime Victim Advocate,” don’t accept the explanation. Lapin goes so far as to suggest that Wesley is invoking the “Nuremberg defense” of “I was only following orders.”
Ad Seeks Opposition
Burke, 37, Bershin, 64, and Lapin, 67, all got into the race after Association of Deputy District Attorneys President Steven Ipsen ran an ad soliciting opposition to Oki, Wesley, and three other judges who—according to the ad—had been rated unfit in a poll of prosecutors.
It was an unusual move, one that Wesley describes as “an attempt to intimidate judges.”
He emphasized that he has not been accused of being lazy, or of not knowing the law, or of being intemperate or unfair in court. Judges who are not good at their jobs should fear being challenged, he says, but he declares passionately that he is not in that category.
The California Judges Association, he notes, asked him a short time back to speak to the group on “What Makes a Great Judge.” As for where he fits in, he says:
“I’m a good judge. I’m a hard-working judge. And I aspire to be a great judge.”
And a lot of other judges, as well as lawyers and others, seem willing to help him achieve that aspiration. His campaign consultant, Hal Dash of Cerrell Associates, said the campaign will file its final pre-election spending report today, showing that it has raised $211,000, including a $30,000 loan by Wesley that has been repaid.
The Ipsen ad sowed the seeds of an unusual political strategy. The three opposition candidates have endorsed each other, saying it is unimportant who wins, as long as it isn’t Wesley.
The strategy has several purposes, Ipsen explains. One is to rely on what are perceived to be the combined strengths of the three candidates.
Referring to their ballot designations, the ADDA head comments:
“When voters see that someone is opposed by a police officer, a prosecutor, and a crime victim advocate”—the last being a reference to Lapin’s work with the organization Families of Homicide Victims, the candidate explains—“they are going to realize that there is something wrong with this person.”
In the same vein, Ipsen suggests, having multiple opponents was necessary to keep the emphasis on Wesley and May 28, rather than enabling an opponent or Ipsen to become the focus of attention.
Burke’s Chances Touted
Ipsen, Lapin, and Bershin all agree that the candidate with the best chance of winning, or at least forcing Wesley into a runoff, is Burke, a former civil lawyer and Orange County prosecutor who has raised more than $70,000, most of it in loans from fellow law enforcement officers, and is the only candidate other than Wesley to purchase a candidate statement.
Those loans, records show, came in after he filed documents with the county registrar in an unsuccessful to be indigent for purposes of obtaining a candidate statement. By statute, had the claim been accepted, he would not have had to make the $65,000 prepayment, although the county could have attempted to collect the money later, and Burke says he would have still have borrowed or raised the money.
Bershin and Lapin have both filed short forms, declaring that they would not spend more than $1,000 on their primary campaigns.
Burke is a Napa Valley native and Whittier College and Boalt Hall graduate who was admitted to practice in 1991. He practiced civil law at first, in the Los Angeles office of Dewey Ballentine, and later with Bewley, Lassleben and Miller in Whittier. He joined the Whittier firm, he explains, because it was smaller and gave him more opportunities to go to court.
While there, though, he joined a volunteer program for misdemeanor prosecutors and “enjoyed it too much,” as he puts it. That led to a three-year stint with the Orange County District Attorney’s Office.
He had always been interested in police work, he says, joining the LAPD as a reserve officer while an undergraduate. He maintained his reserve status while attending school in Berkeley, he explains, by commuting one weekend a month.
He spent a year as a labor relations advocate for the department, representing the department in disputes with some of his fellow officers. That was a great deal for the taxpayers, he said, because “they got a Boalt Hall attorney and only had to pay him a police sergeant’s salary.”
He now heads a vice unit in Wilshire Division, but his legal skills still come in handy, he explains, because one of his duties is to serve as an LAPD advocate before administrative law judges and zoning boards.
He has been endorsed by the Los Angeles Police Protective League, the LAPD Command Officers Association, and the Association of Los Angeles Deputy Sheriffs, as well as the ADDA. ALADS—which earlier donated $5,000 to the campaign—the LAPPL, and the ADDA co-sponsored a fundraiser for him Wednesday night at the police academy following the ADDA’s installation of officers.
‘Should Have Been Obvious’
Burke concedes that he is unsure how he would have handled the May 28 incident, but insists, “I would never orchestrate a shutdown at the expense of public safety.” While it was Oki who gave the order, he says, it should “have been obvious to Judge Wesley” that dangerous felons would be released as a result.
Bershin’s unfunded campaign, the candidate says, relies on his ballot designation as “Criminal Prosecutor” and the contacts he has made in nearly 35 years as a deputy district attorney.
While May 28 was the catalyst, he says, it is not the sole basis of his challenge. Wesley, he claims, has long had the reputation of being a light sentencer.
Although he has never worked in Wesley’s court, he cites a case in which, as a trial prosecutor in Van Nuys, he was prepared to accept a plea agreement that would close three cases against a defendant.
The cases, split between Van Nuys and San Fernando, involved perjury and two drug charges, and he and the other prosecutor agreed that five years in prison would be an appropriate disposition in the aggregate, he explains. But they later learned that the defendant had a fourth case downtown in front of Wesley.
When a prosecutor in Wesley’s court was called about the possibility of pleading out all four, Bershin says, she told him that Wesley would likely accept a plea to three years or less over the prosecution’s objection. Bershin says he then opposed the transfer of the Van Nuys cases, and when he lost the motion, filed an affidavit of prejudice to prevent Wesley from hearing them.
Bershin spent a number of years in his office’s appellate division, after having begun his career as a research attorney for the Fourth District Court of Appeal in San Bernardino. He said he has argued seven cases in the California Supreme Court and hundreds in the Court of Appeal and the Superior Court Appellate Department, having been an appellate deputy in the 1970s and 1980s when waivers of oral argument were less common than they are today.
He has also tried murders, as well as arson and rape cases, he notes.
He says he is the “perfect person” to challenge Wesley. “I have the credentials, the experience,” he explains, and has “rarely” lost cases.
Rating Called Unfair
He criticizes the County Bar for not rating him “well qualified.” Committee members, he said, unfairly characterized him as “too rigid” in his approach to pleading out cases.
As a deputy-in-charge of three preliminary hearing courtrooms, he explains, he pleads out 55 to 60 percent of his cases. “Some defendants want to plead below what’s needed to protect society,” but that doesn’t mean the judge has to go along, he says.
Lapin left the District Attorney’s Office last year after 20 years of service. He “loved” the job, he said, but had seen some of his contemporaries “dropping by the wayside” and wanted to “get in a few good years” while still healthy enough to enjoy them.
So it is ironic, he acknowledges, that he finds himself running for a judgeship. But he figures it has “a different stress level” than being a prosecutor, he says, and in any event would not serve more than one term and would not ask to be assigned to a heavy-duty trial court.
He has had a wide variety of assignments in the office, including a stint with the special investigations unit. He served as assistant head deputy in Van Nuys for a time and was editor for 12 years of what he calls the “infamous” Informant, a publication by and for line deputies.
He had been taking it easy, he says, playing golf, traveling and spending time with his grandchildren, when he became a candidate.
The former three-term president of the ADDA said he had no political plans, and was in fact at a meeting for another potential candidate when he learned that the person he was there to support wasn’t going to run and he was asked to become part of Ipsen’s multiple-candidate strategy.
As for the events of May 28, he said, “I blame Wesley for serving the order and leaving the building.” Part of being a judicial officer, he says, is being willing to stand up to one’s superiors when something is being done wrongfully.
Like Bershin, he says the County Bar denied him its highest rating because it does not appreciate tough prosecutors. The committee members, he said, saw him “as strictly a grudge candidate against Judge Wesley.”
A Chicago native, Lapin studied optometry and worked for the gas company before deciding to attend law school at night. A father of three by the time he was admitted to practice in 1965, he supported his family by working construction while in law school, then opened a practice in West Hollywood.
A stint on the indigent defense panel for the U.S. District Court convinced him to try prosecution, he said, so he became a misdemeanor prosecutor in Santa Monica before being recruited for a West Los Angeles firm where he again did criminal defense work.”
He “wasn’t really happy defending people,” he says, explaining his decision to join the District Attorney’s Office.
Deputy Public Defender
Wesley, 57, is a 1972 graduate of Southwestern University School of Law. He was a deputy public defender from 1972 to 1981, a partner in the criminal defense firm then known as Overland, Berke, Wesley, Gits, Randolph and Levanas rom 1981 to 1991, and a sole practitioner from 1991 until his appointment to the State Bar Court in 1993.
While he enjoyed the work at the nation’s first full-time attorney disciplinary court, he explains, “the process for reappointment was uncertain then,” so when five of the other judges were not reappointed by the state Supreme Court at the end of their terms, he applied for a seat as a Los Angeles Superior Court commissioner.
He was named a commissioner in 1995 and served in juvenile court until December 1997, when Wilson named him to a judgeship.
It was an unusual appointment, Wesley acknowledges, since he is a Democrat and a former criminal defense lawyer, and Wilson did not appoint many judges in either category.
He attributes his selection to his shared Marine connection with the governor and to his backing from supporters across the political and professional spectrums.
He explains that when he was asked by Wilson’s judicial appointments secretary, John Davies, whether he might be interested in switching parties, he replied that “if I was the kind of person who’d change parties just to get a judicial appointment, I’m not the kind of person you’d want on the bench.”
His ambitions beyond reelection are modest, he says. He disclaims any interest in either becoming presiding judge of the court—“I don’t like being a supervising judge as much as I liked being a trial judge,” he says—or a Court of Appeal justice, at least for the foreseeable future.
“I want to go back to a trial court,” he told the MetNews. “I really like being in trial...watching lawyers do their jobs.”
Copyright 2004, Metropolitan News Company