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

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.”