D.A. Won’t Prosecute Mitchelson in Rape Case; State to Open Inquiry

The Los Angeles County district attorney’s office announced Tuesday it will not prosecute palimony lawyer Marvin Mitchelson for the alleged rapes of two women clients, but the state attorney general’s office, in a rare move, said it will immediately step in to investigate the case.

An unsigned statement released through the district attorney’s public information office said, “We have concluded that there is insufficient evidence to establish that any crime was committed.”

Chief Deputy Dist. Atty. Gilbert Garcetti said the decision not to prosecute Mitchelson was made by Dist. Atty. Ira Reiner.

State prosecutors said they will conduct their own investigation of the alleged rapes in an attempt to determine whether Reiner abused his discretion in declining to file charges.

The state investigation was prompted by complaints from one of the alleged victims and her attorneys, who claimed months ago that the district attorney’s office had taken too long to decide whether to file charges and was giving Mitchelson preferential treatment.

“We were alerted to the existence of the case by them,” said Chief Assistant Atty. Gen. Steve White. “We are independently in the thing based on the concerns raised by them.”

The Los Angeles Police Department referred the case to county prosecutors last July. But officials in the district attorney’s office said they were delayed in coming to a decision by repeated assurances that Mitchelson would submit to questioning as soon as he and his attorney, Howard Weitzman, returned from lengthy out-of-state court appearances.

“Mitchelson now has indicated an unwillingness to submit to such an interview,” according to the statement.

Weitzman, speaking by telephone from Memphis, Tenn., said his client had already submitted to one interview, which the district attorney’s office characterized as a mere “statement” during which Mitchelson answered no questions.

Weitzman said Mitchelson’s accusers were “unstable.”

The 57-year-old Mitchelson, who won fame a decade ago in a case that gave live-in lovers the legal leverage to share a partner’s property when they separated, has called the rape allegations “totally false.”

Mitchelson was accused by Kristen Barrett-Whitney, 35, who asked that her name be printed. “I feel I’ll lose my credibility if I don’t use my name,” she said. The Times’ policy is generally not to publish the names of victims of alleged sexual crimes.

Barrett-Whitney said she went to Mitchelson’s office in November, 1985, to ask him to represent her in a palimony suit and that he raped her in the bathroom of his Century City office and continued to have sexual contact with her while they drove to and from court in his Rolls-Royce and once they had returned to his office.

Barrett-Whitney’s lawyers, Pierce O’Donnell and Jan B. Norman, have said that Mitchelson assaulted her just after learning from Barrett-Whitney’s psychiatrist that she was in a fragile state.

In a telegram to Mitchelson the day of the alleged rape, the psychiatrist, Gary Shepherd, said she had “severe psychiatric problems.”

In a letter to Garcetti last October, Shepherd explained that she had “the psychological development of a child,” but while “extremely naive” and “easily victimized” she was also “very honest.”

The district attorney’s office, however, said it had turned up “direct contradictory evidence concerning her allegations of the circumstances surrounding the alleged assault.”

The district attorney focused on statements made by a lawyer and a secretary in Mitchelson’s office. Barrett-Whitney had told investigators that the lawyer had knocked on the bathroom door during the assault. The lawyer said that whenever he entered Mitchelson’s office, he saw Barrett-Whitney and Mitchelson talking.

Barrett-Whitney told investigators that she could hear the secretary while she was in the bathroom with Mitchelson. The secretary, however, told authorities that she heard nothing out of the ordinary.

The district attorney’s office said that, in the second case, it had found “conduct toward Mitchelson (after the alleged rape) inconsistent with the allegation of sexual assault.”