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A Key Test 

D.A. chooses to drag out suspense

Wednesday, Jan 17 2001
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District Attorney Steve Cooley chose a middle course last week in his first major decision on the Rampart scandal, moving to appeal the judge’s decision to throw out the verdicts against three LAPD officers.

Cooley‘s choice fell short of the more aggressive option -- refiling the charges and launching a new trial -- and meant that final resolution of the first criminal case to arise from the allegations made by ex-cop Rafael Perez will be stalled for at least a year, and possibly much longer.

It also means that now is too soon to assess how Cooley will handle the biggest criminal-justice issue facing his administration: Will he pursue cases against Rampart officers accused of misconduct with more vigor than his predecessor, Gil Garcetti -- who mustered just two prosecutions, one of which has yet to reach a trial? What about allegations against officers from other LAPD divisions?

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And what about Rafael Perez? He received leniency from the court and immunity from future prosecution in return for agreeing to tell the truth about misconduct by fellow officers. Will Cooley put that deal to the test by bringing Perez on as a witness, or will Perez walk out of prison, by some estimates just months from now, without even having been called to testify?

The answer Tuesday from the District Attorney’s Office was “Wait and see.” The entire Rampart police scandal, including the plea bargain struck with Rafael Perez, is under review by an ad-hoc task force headed by Bill Hodgman, a member of the O.J. Simpson prosecution team until health problems forced him to step down. Cooley wants “fresh eyes” on the case, and will decide how to go from there.

The decision reversing the verdicts, a decision handed down in almost furtive fashion after the close of business on the Friday before Christmas, was extraordinary even in its genesis. In a detailed, 19-page opinion, Judge Jacqueline Connor held that the jury had insufficient evidence to find that the officers had falsely charged two gang members with striking two of the officers, Brian Liddy and Michael Buchanan, with a truck as they fled a 1996 police raid. Both gang members pleaded guilty to the charges, but later recanted their pleas.

Key to the decision was Connor‘s ruling that the jury was wrong in finding that officers lied when they said they suffered “great bodily harm” from the alleged accident. Conner held that no such injuries had been alleged in the original arrests. She concluded the jury erred after studying jurors’ affidavits about their deliberations, which are usually off-limits to judicial review.

Cooley said in an interview Tuesday that the question of improperly invading the jury‘s process was one of “several important issues” that he wanted to challenge in an appeal. “This is not a frivolous act on our part,” Cooley said.

Attorneys for the convicted officers disagreed, contending that Cooley was only stalling, as there was little chance Judge Connor would be reversed on appeal. Defense attorney Harland Braun went further, denouncing the decision as “cowardly.” In a letter sent on January 5, even before Cooley’s decision, Braun implored the D.A. to “either retry the case and take the consequences and public disapproval, or courageously dismiss the case and explain to the public that the evidence does not merit a retrial.”

But Cooley‘s decision won wide support, including from some of the city’s leading civil rights attorneys. Said Erwin Chemerinsky, a professor of law at USC and an expert on police issues, “I think the D.A. made exactly the right decision.” Chemerinsky said he considered Connor‘s ruling highly unusual, and noted that a new trial would likely be conducted by Connor again. “The D.A. got a jury verdict, and now he’s trying to protect that verdict,” Chemerinsky said.

Still, the appeal leaves unanswered the question of how Cooley will pursue the allegations of misconduct at Rampart, or whether he will at all. “My feeling is that Cooley is playing it safe,” said veteran police litigator Jorge Gonzalez. “He‘s got a lot of good will from the media right now, and he doesn’t want to risk it.” Besides, Gonzalez noted, Rafael Perez has yet to be tested in a court of law.

All of which seems to be just fine with Perez attorney Winston Kevin McKesson. “It seems to be the preference of the district attorney not to call” Perez, McKesson said, noting there have been “no discussions” over the terms of Perez‘s deal. “My client’s plea agreement, as far as I‘m concerned, remains in effect.”

McKesson declined to state exactly when Perez is due for release from government custody, but said he and his client are taking things “one day at a time.”

“This case has been like Mr. Toad’s Wild Ride,” McKesson said. “There have been a lot of hurdles along the way -- the lie-detector test [which Perez failed], Sonia Flores [who accused Perez in several homicides, but then recanted] -- but we‘re still on track.”

With the appeal of Judge Connor’s verdict, the question remains: Is D.A. Cooley along for the ride?

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