Ex-D.A. Says He Ruled Out Belushi Case Plea Bargain

Former Los Angeles County Dist. Atty. Robert H. Philibosian said Wednesday that he had forbidden his prosecutors to offer a plea bargain to Cathy Evelyn Smith, the Canadian citizen who was indicted for murder in the death of comedian John Belushi.

Smith, who had been fighting extradition from Toronto, voluntarily returned to Los Angeles on Tuesday after prosecutors working for the new district attorney, Ira Reiner, offered to reduce the charges against her in exchange for guilty pleas.

Reiner, the former Los Angeles city attorney, took office Dec. 3 after defeating Philibosian in an election last June.

“I had given clear policy direction that there was not to be any plea bargaining on that case,” Philibosian said, in response to an inquiry from The Times. “The case was not a manslaughter; it is not a manslaughter. It’s a murder case.”

‘Ripe for Disposition’

However, Assistant Dist. Atty. Curt Livesay, Reiner’s third-in-command, said top officials in the district attorney’s office believe that the Smith case is now “ripe for disposition.”

Livesay, who also served as one of Philibosian’s top assistants, said new court decisions and uncertainty over the admissibility of evidence have convinced him that offering Smith a plea bargain is in the best interest of justice.

In Los Angeles Superior Court on Tuesday, Deputy Dist. Atty. Michael J. Montagna said his office was prepared to reduce the murder charge against Smith, 38, to involuntary manslaughter and to dismiss 10 of 13 charges of furnishing drugs, if Smith agrees to plead guilty.

However, Smith’s Los Angeles attorney, Howard L. Weitzman, said Tuesday that his client has not yet decided whether she will go through with the agreement.

The maximum penalty for the reduced charges would be eight years and eight months in state prison. If convicted of second- degree murder, Smith would face a prison sentence of 15 years to life.

Belushi, who starred on the original “Saturday Night Live” television program and in several films, was found dead March 5, 1982, in a bungalow at the Chateau Marmont hotel in West Hollywood. The coroner’s office concluded that he died of acute heroin and cocaine intoxication.

A former backup vocalist and sometime companion of several musicians, Smith was frequently with the portly comedian during the final days of his life.

In an interview in the National Enquirer published in mid-1982, she was quoted as saying that she injected Belushi several times, at his request, with a mixture of heroin and cocaine in the hours before he died.

Smith was indicted on murder and drug charges by the Los Angeles County Grand Jury in March, 1983, after she had returned to Canada.

Philibosian said he ruled out a plea bargain for Smith because he believed that prosecutors had enough evidence to convict her of second-degree murder under the legal theory of “felony-murder.” As outlined in court decisions, that theory holds that a killing that occurs during the commission of an inherently dangerous criminal act, regardless of the killer’s intent, amounts to second-degree murder.

In this case, Philibosian said, circumstantial evidence and Smith’s tape-recorded interview with Enquirer reporters, which was played for the grand jury, would prove that Smith was engaged in a dangerous felony--furnishing narcotics--that resulted in Belushi’s death.

“Whether she intended it is not an issue,” Philibosian said.

First-degree murder requires proof of careful planning and deliberation of the killing. But second-degree murder requires only that prosecutors demonstrate that the “circumstances attending the killing show an abandoned and malignant heart.”

Livesay said that recent court decisions regarding so-called “lesser included offenses” have convinced him that Smith could legally enter a guilty plea to involuntary manslaughter, even though she is charged with murder.

Furthermore, he added, “When one tries a case such as this, there are always the hazards . . . of whether certain evidence will be admitted and whether certain evidence is subject to more than one interpretation.”

While Livesay did not specifically mention Smith’s recorded interview with the Enquirer, others familiar with the case said it is possible that a trial judge would rule it inadmissible. The only witnesses to the alleged fatal injections were Smith and Belushi.

Montagna, who is prosecuting Smith, said Wednesday that he was first approached about a deal for Smith in the fall of 1983 by a local attorney who put him in touch with Smith’s Canadian lawyer, Brian Greenspan.

Montagna said that he worked out the details of the plea bargain with Greenspan and then presented the settlement to his immediate superior, Livesay, who, at the time, was the director of the office’s bureau of central operations.

Livesay said he “agreed basically with the legal proposition that Montagna presented,” but never took the proposed agreement to Philibosian, because he was aware of the then-district attorney’s views on the case.

“It was basically a matter that had been proposed and which was pending on my desk,” Livesay said.

When Montagna brought up the matter again earlier this month, Livesay said he endorsed the settlement proposal. Reiner made the final decision to make the offer to Smith.