Friday, May 14, 2004
Convictions of Three in Rampart Case Not Tainted by Instructional Error Judge Admitted, C.A. Told
By David Watson, Staff Writer
The convictions of three Rampart police officers accused of conspiring to frame a gang member should be reinstated despite the trial judge’s conclusion she erred in instructing jurors, a deputy district attorney told this district’s Court of Appeal yesterday.
Brentford J. Ferreira said Los Angeles Superior Court Judge Jacqueline Connor was wrong nearly 3 ½ years ago to grant a new trial to Officer Michael Buchanan and Sergeants Edward Ortiz and Brian Liddy, the first Los Angeles police officers brought to trial in the Rampart division corruption scandal. Connor’s ruling came after some jurors said they convicted the three in part because they did not believe any of them suffered “great bodily injury” while arresting a pair of suspected gang members in 1996.
In her new trial ruling, Connor said she committed a “fatal error” when she failed to recognize that jurors had become confused by a reference to “ADW w/GBI” in the officers’ report of the incident. That shorthand referred to Penal Code Sec. 245(c), which criminalizes assaults “by any means likely to produce great bodily injury upon the person of a peace officer” but does not require that an actual injury result.
The officers claimed the two suspects tried to run them over with a truck.
Ferreira told Acting Presiding Justice Norman Epstein and Justices J. Gary Hastings and Daniel A. Curry that the use of juror affidavits to establish that there was confusion violated Evidence Code Sec. 1100. That section prohibits admission of evidence to show the effect of statements, conduct, conditions, or events “upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”
He also argued that any confusion related only to the conspiracy count on which the three were convicted. He noted that all three were also convicted of perjury, and urged the justices to look at a videotape of the incident which he asserted would show the officers were not assaulted.
The deputy district attorney questioned whether an instruction on the crime with which the two alleged gang members were eventually charged was even necessary. Charging decisions are made by prosecutors, not police officers, he observed, and the crimes of which the officers were convicted were based on allegations they falsely reported the events surrounding the gang sweep in which the arrests occurred, not on the criminal charges the arrestees eventually faced.
“Good verdicts against dishonest police officers were overturned,” Ferreira said, adding of Connor’s new trial ruling:
“Not one bit of it was correct.”
Epstein questioned Ferreira closely about Sec. 1150, pointing out that the statute says its restrictions apply to “an inquiry as to the validity of a verdict.” That might mean, the justice suggested, that Connor was entitled to rely on the affidavits if she was instead looking into a different question: whether any instructional error was prejudicial.
But Ferreira said it could “destroy the jury system” to permit inquiries that focused on the deliberative process, rather than on whether jurors committed misconduct, and Epstein conceded he was “troubled” by the prospect of adopting a narrow view of the Evidence Code’s strictures.
“You blow a hole in the spirit behind Sec. 1150,” he said, adding:
“There’s some real concern about going there.”
Epstein added that other evidence, such as the jurors’ questions about great bodily injury during deliberations, might be enough to support Connor’s determination that instructional error prevented the defendants from receiving a fair trial.
Arguing on behalf of the officers, Carmel attorney J. Courtney Shevelson said Connor’s new trial ruling could be affirmed without reaching either the issue of the scope of Sec. 1150 or the question of whether Connor should have instructed the jury on the elements of Sec. 245(c).
“You don’t have to go there,” he declared, noting that Connor also cited insufficiency of the evidence as a basis for her ruling.
But Epstein and his colleagues seemed little inclined to shy away from the issue of whether an instruction on the elements of Sec. 245(c) should have been given and, if so, who bore the responsibility for the fact it was not.
Hastings said it was clear to him that since the result of the alleged conspiracy was the filing of criminal charges against the suspected gang members, an instruction explaining what conduct might have justified those charges was necessary. He was mystified, he said, by the fact none was given.
“It’s beyond me,” Hastings said. “I don’t understand it.”
Epstein said the officer’s lawyers might have compounded the error by requesting only that great bodily injury be defined for the jurors, and not that complete instructions on the elements of Sec. 245(c) be given.
“Isn’t the failure to request the whole loaf instead of half a loaf invited error?” the justice asked.
Shevelson said it was not because Connor had a duty to instruct on those elements sua sponte.
“Defense attorneys are not beholden to request sua sponte instructions,” he said.
Copyright 2004, Metropolitan News Company