Metropolitan News-Enterprise


Tuesday, September 29, 2009


Page 7



Robert H. Philibosian: Future DA Displayed Prowess as Trial Deputy




Ninety-Ninth in a Series


Robert H. Philibosian, 38th district attorney of Los Angeles County, was in office for only two years; he was appointed Dec. 28, 1982 and his term ended at noon on Dec. 3, 1984.

“Bob never had a chance to make his mark,” his friend and mentee Steve Cooley, the current DA, laments.

Responding, Philibosian, now of counsel to Sheppard Mullin, says:

“I made a mark—I wasn’t able to make a very long mark because I was there so short a time.”

Given his proficiency and his commitment, the brevity of his tenure is regrettable.

Why Philibosian was appointed to fill out two years of the term to which John Van de Kamp had been elected but abandoned when he was elected state attorney general, what he did during his brief administration as DA, and why he was defeated at the polls by a man of lesser talents will be examined here.

At the outset, I must disclose that Philibosian is a friend of mine. He’s emceed this newspaper’s “Person of the Year” dinners for more than a dozen years—relinquishing that role at the Jan. 25, 2008 event because he was himself an honoree.

I like him for many reasons. High up on the list is that when he tells me something, I know that he is not trying to con me.

I discerned that 37 years ago when I first met him, long before we formed a friendship. As a reporter for the now-extinct Herald-Examiner, I was covering the trial of Dr. John S. Gwynne, a then-medical doctor who was charged with murdering his live-in girl friend during a row in their West Los Angeles apartment. DDA Philibosian was accessible, and he gave straight answers to my questions.

This was in contrast to a defense lawyer in the case who didn’t like a particular question I asked (I have no idea what it was), turned his back on me, and walked away. Hiroshi Fujisaki later became a Los Angeles Superior Court judge, presided over the civil suit against O.J. Simpson, and is now retired.

Philibosian’s questioning of witnesses was adept. He laid out the case with precision. His summation was masterful.

The charge was first-degree murder. Gwynne testified that, yes, he had fired three shots into the body of the victim after a prolonged argument over her use of drugs. However, he claimed, the shooting was accidental, occurring during a struggle over a gun she produced while under the influence of a self-administered drug.

“Jurors in the murder trial of Dr. John Shriver Gwynne, 30, have been taken by surprise with an announcement by the prosecution that a first degree murder verdict will not be sought,” my story on the prior day’s proceedings, appearing June 29, 1972, recounts.

Philibosian asked jurors to return a verdict of guilty of second-degree murder. The article says:

“This would require a finding that the shooting last Dec. 8 of Debbie Dwyer, 21, was done with malice, but not with premeditation.

“Under Philibosian’s theory, Dr. Gwynne shot Miss Dwyer in the right breast, possibly during the struggle which the defendant has testified led to an accidental firing of the gun.

“Then, according to the…prosecutor’s reconstruction, the defendant, realizing what had happened and what Miss Dwyer might tell others about the incident, intentionally fired the two fatal shots in her shoulder and neck.”

Gwynne’s other lawyer, Michael Gerbosi, is quoted as remarking in his argument to the jury that when he heard Philibosian say he wasn’t seeking a conviction of murder in the first degree, “I couldn’t believe it.”

Now retired and living in Santa Cruz, Gerbosi says he soon thought it through and realized that Philibosian did “the only thing he could do.” He explains that “the facts didn’t fit a first” and if the prosecutor had pushed jurors to find a murder in that degree, he might have been perceived as “over-charging,” with the possible jury reaction that “maybe it isn’t even a second.”

Gerbosi remarks:

“The way he played it, I thought was good.”

He says of his opposing counsel of many years back: “I think Philibosian did a hell of a good job on that case.”

The retired lawyer says that Philibosian “was a gentleman, and he conducted himself well, and was very thorough on his  direct examination.”

I telephoned Fujisaki, at his home, for comment. He says his recollection of the case amounts to “very little or none.”

Did Philibosian employ a crafty stratagem in the Gwynne case, aimed at fending off a verdict of manslaughter or not guilty?

No, Philibosian says; after the evidence was in, he simply sized up the crime as a second-degree murder, and asked for jurors’ concurrence.

So absolute was he in his stance that he entreated jurors to give him the verdict he asked for—or acquit; a finding of manslaughter, he insisted, was simply not consistent with the evidence.

The evidence did show that the initial shot was at close range, thus consistent with Gwynne’s recitation of a struggle, but the second and third bullets came from a distance beyond the victim’s reach.

The jury returned a verdict of second-degree murder on June 30, 1972. My report in the next day’s issue of the Herald-Examiner notes:

“As the court clerk read the verdict, Gwynne showed no emotion. The jurors filed out and the defendant was handcuffed. He sat silently for several minutes before a sheriff’s deputy arrived to take him upstairs to the county jail.”

The reference to the county jail being “upstairs” is apt to bewilder younger readers. Well, OK, it will also mystify some not-so-young readers. The trial took place in the old Hall of Justice, long shuttered, at the northeast corner of Spring and Temple Streets. Across the street, to the south, is the structure that, at the time it opened later in 1972, on Oct. 26, was denominated the “New Criminal Courts Building.” Now not so “new,” it’s called the Clara Shortridge Foltz Criminal Justice Center.

The trial judge was Charles H. Older, who had presided over the Charles Manson murder trial and had caused the 46-day jailing of reporter Bill Farr for refusing to betray the identities of two confidential sources of information relating to that trial.

Philibosian recounts that after the proceedings in the Gwynne case were over, Older called him into chambers and upbraided him for not seeking a conviction on first-degree murder. “With due respect, your honor,” Philibosian recalls telling the judge, “it was second-degree” because there was “no premeditation.”

Older, he says, persisted that he should have sought a first-degree murder verdict.

The prospect of such a conviction had loomed at trial, notwithstanding Philibosian’s concession, because Older insisted on giving an instruction on first-degree murder.

The rendering of that instruction was assigned as error in the appeal; the Court of Appeal, in an unpublished opinion, yawned. Even if it was, in fact, error, the court found, it didn’t matter since the jury had not convicted Gwynne of the uppermost charge.

But what if the jury had come in with a verdict of first-degree murder? What would Philibosian have done?

He tells me he “didn’t consider that at the time or since.” Philibosian reflects that, since the evidence did not support a first-degree murder conviction, he “would have moved the court to reduce” the conviction to second-degree murder. If Older had not done so, he observes, it’s clear from the Court of Appeal opinion that the justices would have ordered that such be done.

Gerbosi relates that Gwynne served the minimum term of four years in prison and was released. He lost his medical license in 1975 (besides the murder, there was the matter of operating an illegal abortion clinic) and he is now living in Oakland.

Earlier in 1972, Philibosian, a deputy district attorney since 1968, obtained a death sentence for Karl Kearney, a beach-dweller who murdered a 64-year-old man at Venice Beach by repeated blows on his head with a rock. The victim had awakened while Kearney was robbing him.

At the time of the killing, Kearney was wanted for questioning in connection with the murder in Hawaii of a 60-year-old female robbery victim. Convinced that Hawaii had the death penalty and California didn’t, Kearney sought to block his imminent removal to the 50th state by confessing his deed here.

Once he realized that he had it backward—that is, California had the death penalty, Hawaii didn’t—he confessed to the Hawaii murder.

While arguing before Los Angeles Superior Court Judge Laurence J. Rittenband during the penalty stage, then-criminal defense attorney Marvin Part (now resigned from State Bar membership) was interrupted by his client. Kearney blurted out, with reference to his victim here and the one in Hawaii:

“Mr. Part, I don’t give a damn about them people there. They were just an old bag and an old bum.”

The Feb. 2, 1972 issue of the Times quotes Philibosian as saying, after the sentencing hearing:

“What we have in this case is a defendant who has tried consistently to outsmart the police, the court and his own attorney and he has outsmarted himself.”

Philibosian’s triumph in gaining a death sentence for the unremorseful slayer was short-lived. Less than three weeks later—on Feb. 18—the California Supreme Court, in a 6-1 decision, declared capital punishment violative of the state’s “cruel or unusual” punishment clause.

Thrust in his hands in 1974 was the politically sensitive matter of the Los Angeles County Marshal’s Office practice of fixing tickets for state legislators and others.

Back then, the Marshal’s Office provided bailiffs in Municipal Court courtrooms and served process in Municipal Court cases, while the Sheriff’s Office performed those services in the Superior Court. The county’s marshal, Timothy Sperl, had been indicted on Jan. 23 of 1974 on charges of improper use of deputies—such as them selling tickets to Supervisor James Hayes’ political fundraiser. (Sperl was fired by the Municipal Court judges on May 19, 1975 after being convicted of four felonies and a misdemeanor—the firing being little more than ceremonial since he had received a disability retirement three month earlier).

In this atmosphere of political favors being awarded by Sperl’s office, Los Angeles Municipal Court Judge Dickran Tevrizian Jr., supervising the downtown traffic courts, reviled at ticket-fixing by marshal’s deputies, and referred the  matter to the office of District Attorney Joseph Busch. Philibosian was put in charge of the investigation.

Scrutiny was given to 122 tickets that were known to have been dismissed between May of 1972 and September, 1973. Tevrizian—who made it to the U.S. District Court for the Central District of California, and is now a mediator/arbitrator—says that this was the period when the court was just starting to computerize its ticket operations, and it was still possible for a clerk to simply “open a file drawer,” pluck a ticket from a file, and dispose of it.

Philibosian found that favors had been done in the form of tickets—both for moving violations and parking offenses—being dismissed, and, in a written report, he named politicians who had sought the favors.

But there was no evidence of a quid pro quo for the favors, Philibosian said, commenting:

“I have concluded that ‘ticket fixing’ as such does not constitute a California crime.”

Evidence that came out of the probe included a letter to the Marshal’s Office from state Sen. Alex Garcia saying:

“Just a note of thanks for your assistance. I will endeavor to reciprocate whenever you have a problem before any one of our committees or you need a vote.”

Busch released Philibosian’s memo on Oct. 23, 1974, and called for legislation “which would preclude such activity in the future and make it a crime.” He noted that the practice had stopped.

“We cleaned house,” Tevrizian says.

The former jurist—whose return call came from the District of Columbia where he’s conducting a mediation—says Philibosian’s report was “very complete.” He remarks that the deputy DA “did the right thing,” explaining that it couldn’t be proven that “anybody got anything but a lunch” for fixing the tickets.

Philibosian gained a perjury indictment by the Grand Jury on Feb. 26, 1975. He presented six witnesses against ousted Los Angeles County Civil Service Commission President O. Richard Capen, who had tried to rig the Civil Service examination for the post of treasurer-tax collector. That was only a misdemeanor, but Capen then lied about it under oath before the Board of Supervisors, committing a felony.

He was also indicted for conspiracy, but that count was later dropped.

Capen pled guilty on Dec. 1, pursuant to a plea bargain under which he would not go to prison.  Philibosian told the court that offenses, the facts and the defendant’s background “do not warrant a state prison sentence.” A $6,250 fine was subsequently imposed and Capen was placed on three years of probation.


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