Monday, November 16, 2009
Page 7
PERSPECTIVES (Column)
Reiner Accuses Philibosian of Offering ‘Nuremberg Defense’ as to His Plea-Bargaining
By ROGER M. GRACE
104th in a Series
ROBERT
H. PHILIBOSIAN
and IRA K. REINER were
dogged combatants in 1984 in one of the most intense contests in Los Angeles
County’s history for the post of district attorney—a contest that, like many,
became increasingly fiery as election day approached.
Harsh
remarks are frequently unleashed in the closing days of a campaign, generally
attracting little note at the time and seldom remembered when the election is
over. One gibe by Reiner at a May 31 press conference, though not widely
remembered, remains noteworthy.
First, the background.
Philibosian, as district attorney, had a predisposition against plea bargaining
in cases involving serious
felonies—and aside from his personal views, there were new statutory mandates
by which his office was bound. He caused a “Felony
Case Settlement Policy” to be distributed to deputies on Feb. 2, 1984, setting
forth restrictions on plea bargaining contained in the “Victims’ Bill of
Rights,” Prop. 8, enacted by voters in 1982. Plea bargaining was barred with
respect to specified serious felonies. In a clamp-down on the exercise of
discretion by deputies, whenever a plea bargain involved no prison time, the
written assent of a head deputy had to be obtained, as did any action, such as
dismissal of a charge, “in the interest of justice.”
A
few days prior to the May 31 press conference, Reiner, the flamboyant Los
Angeles city attorney, had laced into Philibosian for supposed hypocrisy.
Philibosian was proclaiming his abhorrence of plea bargaining while, in fact,
he had engaged in that very practice in 1978, the challenger charged; he had
asked a judge to approve a deal under which a murder charge would be reduced to
voluntary manslaughter. (The defendant served his term, was released from
prison, and proceeded to murder three persons.)
On the face of it, Reiner’s
allegation of hypocrisy was absurd. In 1978, Philibosian was a deputy
district attorney, bound to carry out office policies, not the district
attorney, empowered to make policies.
Philibosian
was irked by the Herald Examiner’s May 30, 1984 report on Reiner’s allegations
in that it implied that it was he who made the call in 1978 to reduce the
charge. The next morning’s Los Angeles Times quotes him as saying at a press
conference:
“I
was operating on instructions from Mr. [Billy] Webb, who was my boss at the
time and who worked out this disposition with a senior trial deputy.”
Now
we get to Reiner’s May 31 press conference. As the Herald-Examiner reports it
in its June 1 issue:
“Reiner
accused Philibosian of using ‘a preposterous Nuremburg defense’ in claiming
that as a deputy district attorney he did not ‘negotiate’ the controversial
plea bargain [at issue]…but was ‘only following
orders.’ ”
A Nuremburg defense? At Nuremburg, alleged Nazi war criminals sought
to justify their roles in the Holocaust by claiming they were just following
orders.
Philibosian
now reflects:
“I
was carrying out a direct order in the DA’s Office to follow a disposition
worked out by the boss.”
He
says he finds repulsive Reiner’s comparison of “a deputy district attorney
doing his job with a Nazi soldier killing Jews.”
But Reiner got
what he wanted. He was quoted. His mission was in the past, and would be in the
future, attracting the limelight.
The contest was
perhaps the most heated district attorney race since 1910 when a
publicity-hungry candidate who delighted in making waves, opposing the
establishment, sensationalizing and distorting, toppled
the incumbent. Could it possibly be that Reiner is a reincarnate of Thomas Lee
Woolwine?
The acrimonious nature of the campaign engendered a distaste for both candidates on the part of some—including editorial writers for the county’s three major newspapers.
●The Daily News, in a May 31 editorial, remarks:
“It is fortunate that the campaign is just about to end. If it had gone on a few weeks longer, voters might have been too disgusted to cast ballots for anyone.”
The newspaper takes issue with Philibosian’s bid to be included on a particular slate mailer (to be discussed in the next column), and notes that Reiner “had his knuckles rapped by a Superior Court judge who ruled that the city attorney had violated professional ethics….” The upbraiding by the judge is recited below.
The editorial concludes that Philibosian was the better of the two candidates, declaring:
“Philibosian has the right idea about what the district attorney should do—put public safety first. Furthermore, he is a career prosecutor, and not a career politician.”
It goes on to hail Philibosian for being un-Reiner-like:
“[Philibosian] has not flitted from office
to office for the past decade, lighting on his current job as if it were just a
brief stopover on the way to better things. And he has not mistaken his job for
a political soapbox. Last year, Ira Reiner was dumped from his defense role in
the police spying case because he could not hold back from criticizing police
intelligence officers—his clients—in public. The city eventually paid more than
$2 million for outside legal help to replace him.
“Philibosian has never made a mistake like
that and, given what we have seen of him as district attorney so far, our guess
is that he never would.”
●The Los Angeles
Times’
June 1 editorial also expresses displeasure with both candidates. It takes a
slap at Philibosian for a comment he made Jan. 23 after the U.S. Supreme Court
upheld a death sentence for Robert Alton Harris, who had abducted two teenagers
outside a Jack-in-the-box, taken them to the woods, slain them, went to his
apartment, and laughed about the killings as he finished their hamburgers.
Philibosian’s comment was:
“The decision now clears the way for the imposition of the death sentence, and I intend to witness the execution.”
What I would infer from that is that he felt he had a duty to do this, as a district attorney who advocated the death penalty. The Times viewed it differently, commenting:
“To demonstrate his dedication to a
crime-free society, Philibosian asks to watch a man die in San Quentin’s gas
chamber—a chilling lapse from the human instinct.”
The editorial continues:
“Reiner plays on other concerns high in
the public consciousness, focusing on violations of toxic-waste laws and other
newsworthy crusades available to a city attorney—good causes that come off in
Reiner’s hands somehow as showboating.”
The view is expressed that “the prudent
vote would be for Philibosian a known quantity after 15 months in office.” It
says he “probably is right” to have stopped the practice of sending a
prosecutor to the scene of every police shooting, is “diligent,” draws
criticisms from some deputies that he pushes too hard, and has maintained the
office’s high conviction rate. The Times concludes:
“He is entitled to a full term in which he
can concentrate on correcting faults and enhancing the qualities that could
make him a first-rate district attorney.”
●The
Herald-Examiner
didn’t make an endorsement, declaring in a June 4 editorial:
“[O]n those rare occasions when we do not endorse,
our purpose is not to duck a choice….Our purpose is to
inform our readers that no candidate meets the standards we feel must be met
before we can, in good conscience, let our name be associated with his.”
In the last month of the campaign,
Reiner was hit with consequences flowing from two breaches of legal ethics, Those breaches were alluded to in a recent column.
●Then-Los Angeles Superior Court Judge
Ronald M. George (now state chief justice) on May 8 ruled that Reiner was
guilty of “a breach of professional ethics,” and he accused Reiner’s office of
having a “begrudging and cavalier attitude” about its duties to clients.
The comments were made in the course of a
29-page order barring use before the Grand Jury of evidence gathered in the course
of two city investigations of city Planning Director Calvin Hamilton. The
evidence, George ruled, was tainted.
Hamilton had sought legal advice from the
City Attorney’s Office on Jan. 25 as to whether his operation of a private
tourism and foreign trade firm breached any conflict-of-interest laws. That
inquiry sparked a criminal investigation, culminating in Reiner’s public
announcement that he would prosecute the planning director on a misdemeanor
charge, unless Philibosian prosecuted him for a felony.
George declared that there was “no doubt”
that an attorney-client relationship existed between Reiner and Hamilton,
rebuffing Reiner’s contention that the city was his client, not Hamilton.
George responded:
“The city Charter imposes upon the city
attorney the duty to act as attorney for all ‘officers’ of the city and
therefore for the planning director.”
Reiner had asked George not to rule on the
matter, saying in a letter:
“For you to proceed with the matter could
only have the appearance of political partisanship by a member of the
judiciary.”
Reiner is a Democrat; George and
Philibosian are Republicans. The office of district attorney is a nonpartisan
one, as is the office of Superior Court judge—but political non-partisanship
was a concept Reiner did not grasp.
It was at Philibosian’s suggestion that
George, as supervising judge of the criminal courts, scheduled the matter for a
hearing. Philibosian did so after Reiner had asked him to bring felony charges.
Reiner insisted in his letter that it
would be “improper and unnecessary” for George to rule—improper because
Philibosian should himself decide whether to bring felony charges and improper
because the contention by Hamilton’s lawyer that legal ethics had been breached
was frivolous.
An April 26 article in the Herald Examiner
quotes George as labeling Reiner’s reasoning “absurd” and commenting:
“There’s a definite legal basis for the
court to review this matter.”
The day after George made his ruling,
Reiner thundered in an interview with the Times:
“The logical conclusion of this decision
is that we should conceal all information of corrupt activities brought to our
attention by any city employee or any city official. I’ll be damned if I’ll be
a party to that.”
The city attorney went on to say:
“I’ll be damned if any city official is
going to walk into my office and tell us that they committed a crime against
the city and have me give them a pat on the head and tell them not to worry,
that I won’t tell my client about it because it’s just between you and me.
“The judge is dead wrong. The law is
clear. There isn’t room here for a scintilla of doubt.”
Reiner said of Philibosian:
“What he has done is nothing less than
attempt to sabotage a very important case involving alleged corruption of a
public official...for political purposes.”
A May 10 editorial in the Daily News says
Reiner “fumbled,” and declares that “there is...no excuse for Reiner’s sloppy
handling of the Hamilton case.”
At a fundraiser on May 10, Philibosian
charged that Reiner “simply didn’t know what his responsibilities were as city
attorney” and that he was “so busy chasing headlines that he trips over legal
principles.”
●A Times story on June 2—three days before
the election—reveals that the State Bar had instituted a disciplinary
proceeding against Reiner in connection with his public betrayal of the
interests of clients.
Reiner’s office in 1983 was defending 11
members of the Los Angeles Police Department’s Public Disorder Intelligence
Division, accused in a lawsuit filed by the American Civil Liberties Union of
improper “spying” by infiltrating dissident groups. Reiner—despite being
exhorted by his chief aide not to do so—bad-mouthed his own clients at a City
Council committee meeting. He denounced a unit within PDID as being comprised
of “zealot officers” who “believe it is completely appropriate...to abuse every
single moral or ethical precept that’s involved in what we understand is a free
society.”
Then-Los Angeles Superior Court judge
Lester Olson (now a private judge) yanked Reiner off the case, declaring there
to be a conflict of interest. The law firm of Gibson, Dunn & Crutcher took
over the defense, receiving more than $2 million for services Reiner’s office
should have been performing.
The newspaper had been able to get a hold
of a copy of a confidential May 15 letter advising that “the referee has
concluded the facts warrant the issuance of a formal complaint.”
George’s finding as to unethical conduct
by Reiner, coupled with the State Bar’s action, should have been enough to kill
the city attorney’s chances. But this was an election that would take place
under singular circumstances...ones which, as I’ll discuss in the next column,
rendered a Philibosian victory highly improbable.
Copyright 2009, Metropolitan News Company