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Lily Burk Death: Paperwork Snafu, or Steve Cooley Screwup? 

Critics say the D.A.'s approach to the third strike makes him less vigilant

Wednesday, Aug 12 2009
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As media coverage of the murder of 17-year-old Lily Burk hit a crescendo in recent days, many people were looking for someone to blame.

How could the staff of the drug-treatment facility where Charles Samuel was serving parole let him out on Friday to go to the DMV — weeks after budget cuts had forced all DMV offices statewide to shutter on Fridays?

How did a “clerical error” on Samuel’s rap sheet cause the San Bernardino District Attorney’s office, which won multiple felony convictions against Samuel years ago, to miss its chance to lock up the violent felon as a third striker in 1998?

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How could he have been allowed to remain free by a parole board when, as The Enterprise Report Web site has found, Samuel failed to see his parole agent, was wanted on two arrest warrants and got arrested three times?

And how could numerous people who saw Samuel’s records over nearly two decades fail to notice and fix that same glaring error, entered into the paperwork back when the alleged murderer was 28 years old, and embarking on a career of violent crime?

Yet as Los Angeles grappled with the shocking carjacking, kidnapping and murder of the teenager, very little blame focused on L.A. District Attorney Steve Cooley and his office.

Unlike some counties in California, Cooley applies his own, more lenient, policy in dealing with the Three Strikes Law — and now Burk’s death has exposed a rift among Cooley’s prosecutors, some of whom say the paperwork mistake made by San Bernardino easily should have been caught in L.A. in 2006, when Samuel threatened to attack a man and stole from him.

Instead, the old error and the potential for a third strike went unnoticed by Cooley’s prosecutors. Some former and current deputy district attorneys and law-enforcement officials say that despite the media focus on a “clerical error,” part of the blame must go to Cooley.

Prosecutor Marc Debbaudt, a 23-year veteran of the D.A.’s office, tells L.A. Weekly that the Burk tragedy is an outgrowth of Cooley’s Three Strikes policy. Debbaudt is suing Cooley’s office for reassigning him from adult court to the less prestigious juvenile court, a demotion he alleges was a punishment for his involvement in the union representing county prosecutors.

But beyond his contentious battle over an unwanted job reassignment is Debbaudt’s frustration, shared by some L.A. prosecutors, over Cooley’s policy of discouraging his stable of attorneys from seeking a third strike when the third crime is not violent. Some L.A. prosecutors believe the approach has made the D.A. less vigilant in catching errors like the obvious one in the Samuel case.

Three years ago, Debbaudt wanted to apply a third strike to a gang member who had served five years in prison for two violent strikes — attempted carjacking, and assault with a firearm. Once out of prison, the defendant was arrested for a DUI.

Because the gang member had committed his past felonies while drunk, Debbaudt wrote a memo to his supervisor, arguing that the DUI, although a lesser crime, was a third strike — as allowed under the Three Strikes Law California voters approved in 1994.

Instead of supporting Debbaudt, his supervisor accused him of having bad judgment, he alleges. Debbaudt tells the Weekly his supervisor’s view was “that the sole purpose for [my] memo was, in the event the defendant was released after serving a two-strike sentence and then did some more harm, that all I wanted to do was wave the memo around and rant that the ‘blood was on [my superiors].’ ”

Debbaudt says that any L.A. prosecutor who writes memos to their bosses seeking permission to set aside Cooley’s approach risks being criticized and ignored — as he was. And he believes that “if something bad did happen, the blood would in fact be on” whichever head D.A. had behaved so dismissively.

John Harrold, another prosecutor under Cooley, and also a member of the union, says Debbaudt’s strong disagreement with his supervisor over the gangbanger with the DUI, and Debbaudt’s later job transfer, are symptomatic of a fear-based environment that he believes discourages prosecutors from doing the hard scrutiny needed to determine if the true past of a violent career criminal like Samuel is hidden in the paperwork.

“D.A.s are extremely afraid of Cooley,” Harrold says. “D.A.s are afraid to actually push Three Strikes because he doesn’t want Three Strikes pushed. To a lot of people, that sounds nice — and it saves a lot of money [in trial costs]. But we miss a lot of opportunities to get bad people off the street, and that is hard to explain to victims’ families.”

Deputy District Attorney Jackie Lacey disputes the allegation that Cooley frowns on prosecutors who want to pursue a third strike for nonviolent crimes. “That is not true,” she says. “We do not discourage people from writing memos seeking to deviate — or prosecute cases as a third strike.”

Under former District Attorney Gil Garcetti, the application of Three Strikes was far stricter. Many critics felt that imprisoning people for 25 years to life for a nonviolent third strike was too harsh. In reaction to such criticism, Cooley requires prosecutors to petition their superiors if they feel a third strike is warranted on a nonviolent, nonserious felony.

As a result, one prosecutor, who asked to remain anonymous, fearing his comment could potentially affect his career, explains: “We used to look at these cases very thoroughly — and that is not being done as much. They are given short shrift.”

In the Burk tragedy, the D.A.’s office and media have blamed the situation on the input error somehow made on Samuel’s rap sheet 22 years ago, when Samuel and an accomplice invaded an old man’s trailer, beat him and stole $10. They forced the victim into a car, where Samuel intermittently beat him while they drove to ATMs trying to get cash — a troubling parallel to the final hours of Lily Burk’s life.

Samuel was convicted of two serious felonies for his 1987 crimes: home invasion and residential burglary, together amounting to two separate strikes under the Three Strikes Law, which, though approved in 1994, is retroactive.

Then in 1997, Samuel was convicted in San Bernardino of second-degree robbery for trying to steal liquor from a Barstow grocery store. The San Bernardino D.A.’s office told the Los Angeles Times it would have prosecuted the grocery-store burglary as a nonviolent third strike if only it had noticed that Samuel already had two strikes.

But the San Bernardino office didn’t note an error some prosecutors say was patently obvious: Samuel’s 1987 trailer-home invasion was not properly specified as a “residential” burglary, even though it clearly involved a home, and an invasion of that home. Home burglary is an automatic strike under California law, so Samuel should have been on the books as a guy with two strikes, not one.

Says L.A. District Attorney Communications Director Sandi Gibbons of the rap-sheet error, “If we had seen it, then [his 2006 crime] would have been filed as a third strike and a decision would have been made” — about whether to take Samuel to trial as a third-striker.

“We rely on what we have at the time,” says Deputy D.A. Lacey. “If a defendant is in custody, we rely on the rap sheet. That is all you have in front of you.” And on a speedy plea deal like the one the D.A. made with Samuel in 2006, when he committed a potential third strike locally, a criminal can be sentenced before prosecutors receive his full record from the Department of Corrections.

Unlike Cooley’s prosecutors’ heavy reliance on the rap sheet, “We run every rap sheet, we run local databases and we run national databases,” says Orange County District Attorney Public Affairs Counsel Susan Kang Schroeder.

But even if the D.A.’s office had only a rap sheet to consider, critics say, a prosecutor who was paying attention would have known that a 1987 home invasion and burglary almost certainly had to have been a “residential” burglary — and thus a strike was missing from the record.

“There are not too many excuses,” says Michael Rushford, president of the Sacramento-based Criminal Justice Legal Foundation, which staunchly supports the Three Strikes Law. “L.A. is a big jurisdiction, and I think this guy just slipped through their fingers.”

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