S.C. to Rule on Whether Prosecutor’s Kin Was Bias Victim

Thursday, January 13, 2005

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S.C. to Rule on Whether Prosecutor’s Kin Was Bias Victim

By KENNETH OFGANG, Staff Writer/Appellate Courts

The California Supreme Court yesterday agreed to decide whether the Los Angeles District Attorney’s Office discriminated against a murder defendant and his co-defendant because the defendant’s mother and stepfather were longtime employees of the office.

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Kathryn M. Werdegar, and Janice Rogers Brown voted to review the convictions of Andrew Vasquez and Anthony Fregoso in the 2000 stabbing death of Armando Ayala near Fairfax High School.

The defendants raised a number of issues, but the high court limited review to the question of whether Los Angeles Superior Court Judge Larry Fidler committed reversible error by denying the defendants’ motion to recuse the entire District Attorney’s Office in light of Vazquez’s allegations he was being treated more harshly due his parents’ employment.

Prosecutors charged that Vasquez and Fregoso attacked Ayala, with Vasquez carrying a knife and Fregoso a baseball bat, as part of a dispute between rival tagging crews that frequently engaged in after-school fistfights. The attack allegedly occurred the day after Ayala and two other men used fists and mace to attack a girl who apparently had some relationship to the crew to which Vasquez and Fregoso belonged.

Ayala died from a stab wound that severed an artery.

Defense counsel originally moved to recuse the prosecutor’s office before Judge Norman Shapiro. Although the office had at one point asked the Attorney General’s Office to take over the case, it had declined to do so, and the judge denied the motion.

Overzealousness Charged

The defense accused prosecutors of an “over-zealous approach to avoid the appearance of impropriety” as evidenced by the fact that prosecutors would not consent to a jury waiver. The prosecutor handling the case at that time said the reason for declining was that a waiver might create an appearance of favoritism toward Vasquez based on the fact that his family members, as well as the judge, had been employed by the District Attorney’s Office.

The first trial ended in a mistrial after two jurors voted to convict the defendants of first degree murder, six of second degree murder, and three of voluntary manslaughter and one voted to acquit.

The case was then reassigned to Fidler. In renewing its motion to recuse the prosecutor’s office, the defense cited the arguments in front of Shapiro as well as the unwillingness to offer a voluntary manslaughter plea after the first trial.

Fidler denied the motion, saying the defense failed to show that disqualification was necessary to ensure a fair trial.

The Court of Appeal, in an opinion by Justice Earl Johnson Jr. for Div. Seven, said it was likely the defendants were subjected to unfair treatment as a result of the employment of Vasquez’s parents by the District Attorney’s Office.

“From her comments it appears the prosecutor would likely have accepted the offer of a bench trial had the case involved a defendant other than a child of a deputy district attorney, and had she not been so concerned about the victim’s family’s reaction to possible rulings favoring the accused from a former member of the district attorney’s office,” Johnson wrote.

Disparate Treatment

The unwillingness to offer a voluntary manslaughter plea, Johnson went on to say, was further evidence of disparate treatment. Given Vasquez’s lack of a prior criminal record, the “arguably ambiguous” evidence of intent to kill—the rival crews had not fought with weapons before—and the split in the first jury, it was at least possible such a plea would have been offered if prosecutors not been concerned with the appearance of favoritism.

Johnson went on to conclude, however, that the error was harmless.

The lack of a bench trial in front of Shapiro was not prejudicial in light of the hung jury, Johnson reasoned. (The defense did not seek a bench trial in front of Fidler.)

And the fact that the defendants were convicted of second degree murder suggested that would have been the verdict regardless of which agency prosecuted the case, the justice went on to say.

In other action at yesterday’s conference, the court agreed to decide whether an exception to the rule of confidentiality in mediation permits enforcement of an arbitration agreement entered into as part of the mediation process.

All of the justices except Joyce L. Kennard voted to review the Oct. 12 ruling of the First District Court of Appeal’s Div. Two, which held that such an exception applies, in Fair v. Bakhtiari, 122 Cal.App.4th 1457.