Is Miller Losing Control of D.A.’s Office? : After 17 Years, Aloof Law Enforcement Officer Faces Doubts, Problems

The thing that grabs the public the most is the fact that the D.A.’s office has been headed by the same person so long that it has fallen behind the times. . . . We need fresh blood in that office. --Edwin Miller, May, 1970

Ed Miller leans his big, graying head back and laughs. He doesn’t remember the quote, a relic mined from the archives of the bitter race that won him the office he has retained, virtually without challenge, for 17 long years. And he can’t imagine anybody saying the same thing about him today.

After all, he is a champion of impossible causes--the good-government crusader who began his tenure as district attorney by dismantling the old-boy power structure that for decades had controlled San Diego and who less than two years ago drove a popular, but corrupt, mayor from City Hall.

He is the innovator whose office for two decades has set a standard for the prosecuting profession. He has advised three U.S. attorneys general, headed the national prosecutors’ association, and lectured legislators. He has fought special interests and kept his community off limits to organized crime.

Others Eye Office

Nonetheless, a new generation of wolves is prowling for fresh blood in the San Diego County district attorney’s office. For the first time in Miller’s tenure, key players in the criminal justice system are voicing the view that Miller’s magic is fading, his clout slipping, his time passing.

A series of embarrassments and setbacks has prompted the doubts: the acquittal of Sagon Penn amid charges that prosecution witnesses lied and hid evidence; the filing of a theft charge against one of the prosecutors in the case; the acquittal of former county Registrar Ray Ortiz on corruption charges; an international outcry over his refusal to prosecute a federal officer who shot a young Mexican across the border, and more.

The missteps, Miller’s critics say, simply reinforce the appearance of chronic deterioration in his 185-lawyer office. Miller’s pace of innovation has slowed, they say. His staff has been depleted by judicial appointments and defections. His management team is in disarray. The independence of his scrutiny of law enforcement wrongdoing is under attack. His office has grown so large, and Miller’s role in running it is so obscure, that some of his deputies don’t know who Ed Miller is and what he wants his organization to stand for.

The convictions still roll in: San Diego County prosecutors dispatched a record 1,509 felons to state prison last year, Miller proudly notes. And at 61, “the Boss”--who has more than three years remaining in this, his fifth, term in office--probably remains invulnerable to electoral defeat, political observers guess.

Lately, though, there are cracks in Miller’s once-impregnable facade.

“What we’re seeing is the sharks are circling, the buzzards are on high,” said San Diego lawyer Robert O’Neill, a

former Superior Court judge and longtime deputy district attorney whose fondness for Miller is undiminished. “They see Ed Miller nearing the end of a career, and people are picking their spots.”

Miller, strong and silent, phlegmatic and poker-faced, isn’t surprised by the criticism. “At this stage of my career, I expect that kind of comment to arise,” he said early this month. “I think it’s almost inevitable.”

But Miller, whose stubborn resolve edges into brusque defensiveness, says the critics are wrong.

“I get reports on everything that happens. If everything is in bad shape, I should be one of the first to know,” Miller says. “And such is not the case.”

Miller’s insistence that he remains in full command of a sound ship is contradicted by the candid appraisals of a score of deputy prosecutors, former deputies, judges and others in the criminal justice system.

Four debilitating factors, each of them integral elements of Miller’s regime, have hobbled Miller’s leadership and dampened respect both for Miller himself and for the office he leads, the critics say:

- Tremendous growth in the district attorney’s office has made the organization far more difficult to manage.

- Miller’s personal aloofness and intolerance of criticism, combined with his reliance on an old-fashioned chain of command, have distanced him from his growing staff and shielded him from constructive criticism.

- After years of stability, the office is experiencing an awkward transition in the ranks of Miller’s top lieutenants.

- Staff expansion and turnover have robbed the office of depth and experience, even as Miller’s very endurance in office has cast a sense of inertia and aimlessness over the sprawling prosecution operations.

Growth is the easiest consideration to measure. Miller’s staff of lawyers has doubled, from 92 to 185, during his 17 years in office. Overall, his office employs nearly 600 on a budget of $27 million--a tenfold increase over the $2.7 million budget of 1970-71.

Ability to Act Diluted

The expansion--most of which has occurred since 1980--has strained the ability of Miller and his top managers to keep abreast of in-house concerns and to communicate their intentions and policies to the office’s rank and file.

“I hate to think (deputies) feel there is a chasm there,” said Assistant Dist. Atty. Richard Neely, the office’s second-in-command. “I think you’re going to find those who do.”

Miller himself has contributed to the widely held impression that he is more figurehead than leader of his burgeoning bureaucracy.

Low-key and remarkably uncomfortable in the public eye for an elected official, he holds few press conferences and avoids civic functions. Miller’s move early last year to a 14th-floor office in the Wells Fargo Bank building--a move he says was necessitated by a lack of space in the jammed county courthouse--physically separated him from his downtown staff. And he rarely visits the branch offices--where dozens of deputies toil--in Vista, El Cajon and Chula Vista.

“I don’t know how you can run an operation when the top people are so isolated physically,” said San Diego Municipal Judge Richard Hanscom, who was chief deputy to Miller’s predecessor as district attorney, James Don Keller. “No matter what steps you take, you’re going to be isolated.”

Seldom Reaches Out

In fact, Miller does little to reach out to his staff. No adherent to Theory Z or Japanese-style “management by walking around,” he relies on weekly meetings and daily, informal contact with his top managers to stay apprised of important cases, issues in the court system and problems in the office.

Deputies complain of Miller’s invisibility.

“I know of deputies who tell me they’ve never seen him or never talked to him,” Deputy Dist. Atty. James Hamilton said.

Yet Miller says a constant stream of deputies walks through his door. Those who don’t, he says, have no one but themselves to blame.

“If they don’t know me, that’s their obligation,” said Miller, who relies on a Rolodex with pictures of his deputies to recognize some members of his staff. “They can walk in through that door and talk to me and tell me their problems.”

Miller deepens his isolation, according to some current and former deputies, by avoiding confrontation and being unreceptive to criticism.

“Ed Miller ducks people in the office. He ducks people outside,” said Deputy Dist. Atty. Ron Jarvis, a discontented office veteran who has had several run-ins with Miller and his chief assistants. “He says he has an open-door policy. That door is shut.”

Campaign Tack

Miller wasn’t always so removed. Aware that the deputy prosecutors, to a man, had opposed his election in 1970, Miller fought hard to open lines of communication when he took office in January, 1971. He installed a longtime deputy, William Kennedy (now a Superior Court judge), as his top assistant. He saw to a physical upgrading of the deputies’ office space and began a battle for improved salaries that has resulted in the near-tripling of both the starting pay for deputies and the maximum pay for senior prosecutors.

Perhaps Miller’s most adept move in those early months was the installation of Richard Huffman, a young deputy attorney general, in a top post. For 15 years, until Huffman’s elevation to the Superior Court in 1985, the pugnacious lawyer was the office fixer, a lightning rod for criticism and the prosecutor in some of the county’s most celebrated cases.

Huffman’s powerhouse style made him far more visible, at times, than the elected official he served--so much so that it became a courthouse aphorism that Huffman, not Miller, ran the district attorney’s office.

Huffman acknowledges, now, that he contributed to the impression. But he says it was false. “I didn’t set policy in the office. I didn’t make the personnel decisions. I didn’t make any of the major decisions,” Huffman said.

Nonetheless, every setback to the office and every seeming policy shift in the two years since Huffman left--from Penn’s acquittal to the swelling numbers of capital cases being pursued by the district attorney--has been attributed by one party or another within the criminal justice system to his departure.

“Even now, only a select few, because of their position in the office, know the stark reality,” said Neely, who succeeded Huffman as chief deputy and then as assistant district attorney. “It is Ed Miller’s office--for all the credit, for all the blame.”

Miller is visibly irritated by the suggestion that Huffman even seemed to be in charge--though he insists that no one but a few ill-informed newspaper reporters ever made the suggestion. And he bridles at the notion that anything was lost when Neely and Brian Michaels, now Miller’s chief deputy, ascended into the posts Huffman vacated.

‘Switch Bodies’

“All I did was switch bodies,” Miller said.

The fact is, though, that Miller’s new management team has yet to jell. He waited months before promoting Neely and then months more before promoting Michaels, after Charles Hayes, his first choice as chief deputy, was suddenly appointed to the San Diego Municipal Court. Now, Neely has taken four months off from management to try the Joselito Cinco death penalty case in Orange County, and Michaels is dividing his time between supervisory duties and the preparation of a capital case of his own.

Time itself has taken its toll on Miller’s magic. A generation of young deputies--half his staff has worked for the office less than three years--is unfamiliar with Miller’s reputation as a crusader and innovator. Miller has been unable to secure funding from county supervisors for formal training of the youthful staff, and their inexperience has prompted complaints from both judges and police.

In the meantime, nearly 60 lawyers, many of them seasoned deputies, have left the office in the last four years. Many became judges, but others quit at mid-career to enter private practice or join other prosecutors’ offices--some, they say, out of frustration with the bureaucratic calcification of Miller’s growing organization.

“I don’t think it’s an extremely fertile ground for developing talent,” said one former deputy who left after six years to become a civil litigator. “There’s a great opportunity for somebody to come in and sweep out the cobwebs and make it a really fine district attorney’s office.”

Huffman says one of Miller’s toughest tasks as a long-term officeholder is the prevention of bureaucratic burnout.

“The continued revitalization of the office is a major challenge,” Huffman said. “You can take a major office and it will die as fast as day-old champagne if you don’t continue to reinvigorate the people.”

Setbacks in Court

Courthouse observers say recent losses in serious cases--the Penn case foremost among them--revealed the lack of depth on Miller’s legal squad.

“It would seem to me they should have high-caliber lawyers to handle these high-caliber cases. They ought to have a platoon of those lawyers,” said one judge. “And in the last five years, that platoon has been depleted completely. Either they’ve retired, or they’ve quit, or they’ve burned out. And someone has not been looking at their reserves.”

Miller says his staff is thick with top-gun prosecutors. The problem--one he lists among his top challenges--is that so many of them are tied up in seemingly endless death-penalty cases. Defendants in capital cases are afforded two defense lawyers, Miller notes, and he feels compelled to match the defense. Currently, that means about 20 seasoned deputies are working full-time on capital murder prosecutions.

As to the suggestion that his office has fallen victim to malaise, Miller insists he has kept the organization sharp. He has named junior deputies to lead important divisions and given Michaels the charge of improving management and strengthening communications along the chain of command.

“Is there a suggestion I ought to issue an order that everybody do a better job?” Miller asks sarcastically. “Aren’t we trying enough cases? Or aren’t we getting enough convictions? What are we doing that we should be doing better?”

No aspect of Miller’s leadership has embroiled the district attorney in more controversy than his office’s relations with law enforcement.

Police have complained that Miller has cracked down too harshly on alleged wrongdoing by officers. His deputies, they add, too often have refused to prosecute cases presented by police agencies. Yet minority leaders, defense lawyers and other critics have charged--especially in the wake of the Penn case--that the office lets police wrongdoing go unpunished, sending a message to officers that their conduct on the street won’t be carefully policed.

In North County, detectives and patrol officers have raged for years about the rejection of cases by Deputy Dist. Atty. Philip Walden, the branch chief since 1981. In the South Bay, police chiefs have been meeting this month about what they view as two years of rising tension between their departments and Miller’s office in Chula Vista, according to National City Police Chief Terry Hart.

“It’s pretty much universal that cops think South Bay and North County throw up arbitrary and capricious blocks to issuing cases,” said Charles Rogers, who served as Miller’s liaison to law enforcement before quitting last year after a decade as a deputy district attorney.

Police were angered in 1975, when Miller prosecuted a National City officer, Craig Short, for the shooting death of a fleeing purse snatcher even after a grand jury refused to indict him. Short’s defense lawyer, Thomas Waddell, became the only person ever to challenge Miller at the polls, running against him in 1978.

Short was exonerated, as was David DeLange, the Escondido officer charged with involuntary manslaughter for shooting 22-year-old Leslie Landersman during a hostage-taking incident in 1983. Then-Police Chief Jim Connole assailed Miller for pursuing the case, and an Escondido Police Officers Assn. leader told Miller in a letter that the prosecution “created an air of distrust between your office and the police community.”

Praise From Sheriff

Sheriff John Duffy praises Miller for the independence his office has brought to investigations of police wrongdoing. But he contends that Miller has sometimes gone too far. “The chiefs and I at times have felt Ed was selectively prosecuting cops,” Duffy said. “And we don’t like it.”

Recent experience, however, suggests law enforcement has little to complain about.

Between 1984 and 1986, the district attorney’s office reviewed 46 police shooting cases. In each case, the officers were exonerated. In that same period, prosecutors filed criminal cases against 14 officers on such charges as assault, petty theft and lewd conduct.

In four additional cases involving allegations of police misconduct, Miller’s office not only ruled in favor of the officers, but filed charges against the citizens who had alleged police brutality. In each case, the prosecution lost. One victim, James Woodward, later won a $245,000 judgment against the Sheriff’s Department for his claim that he was attacked by deputies responding to a noise dispute.

According to Rogers, the departure of Huffman--who drew the wrath of police for his vigorous prosecutions of officers--stripped Miller’s office of its most skillful acrobat in the balancing act between supporting, but constantly challenging, law enforcement.

“I think Mr. Miller has that same principle, but he is not seen as the same kind of leader in the office that Mr. Huffman was,” said Rogers, who nonetheless holds Miller in high regard. “It becomes increasingly difficult over time to hold to that impartial, tightrope-type position.”

Miller lost the faith of some Chicano leaders as early as 1972, when he declined to prosecute a border patrol officer accused of raping an illegal alien. Mexican officials joined in the criticism when the district attorney refused to prosecute the officer who fired into Mexico to injure 12-year-old Humberto Carrillo Estrada in 1985. Six weeks ago, a federal judge awarded Carrillo a $574,000 judgment, ruling the border patrolman’s testimony was unbelievable and contradicting Miller’s finding that the shooting was lawful.

Miller noted at the time that it was easier to prove wrongdoing in a civil case than in a criminal trial, where it would have to be established beyond a reasonable doubt. But Herman Baca, chairman of the Committee on Chicano Rights, said the Carrillo case only served to further demonstrate Miller’s unwillingness to address the concerns of minorities about law enforcement abuses.

“Ed Miller’s basic job has been to protect law enforcement,” Baca said.

For many in the black community, meanwhile, the Penn case underscored the inclination of Miller’s office to accept the police version of an event despite the strongly contradictory testimony of black eyewitnesses. Two juries cleared Penn of the most serious charges involving the shooting death of San Diego Police Agent Thomas Riggs and the wounding of Agent Donovan Jacobs. The jurors later explained that they did not believe Jacobs’ testimony but found credible the accounts of eyewitnesses who claimed Penn was defending himself against a racially colored beating. Superior Court Judge J. Morgan Lester publicly castigated police for covering up evidence and lying during Penn’s retrial.

The perception, based on the Penn case and others, that prosecutors don’t hold officers accountable for making false or misleading claims adds to blacks’ distrust of the criminal justice system, according to defense attorney Mary Franklin, president of the Earl B. Gilliam Bar Assn., an organization of black attorneys.

Horrible Message

“I think it’s a horrible message to send out to the community,” she said. “They say fear of prosecution can be a deterrent. So if you have an awful lot of officers not fearful of being prosecuted, maybe there’s a greater danger of them overcharging or covering up for other officers.”

Miller says he has sought to maintain contacts within the black and Hispanic communities. His decisions to reject prosecution of several law enforcement cases have been endorsed in reviews by other prosecutorial agencies. And he insists that allegations of police misconduct receive the same careful scrutiny in his office that they always have.

He acknowledges, though, that fewer cases against police are being prosecuted--mainly because juries have demonstrated, with not-guilty verdicts, that such cases should not be filed lightly.

“I have a feeling that we’re probably a little more conservative than we have been in the past, because of our experience,” Miller said. But law enforcement, he said, remains aware that its conduct is being watched.

“It hasn’t changed the message,” he said.

To Miller, the complaints about police cases are like all the other criticisms of his regime. They are short-sighted and opportunistic--pokes taken while the office is down a bit after a few defeats, most notably the acquittal of Penn following a year of courtroom drama.

Miller rejects the attacks. “I know who’s in charge,” he says.

Times staff writer Glenn F. Bunting contributed to this story. MILLER’S TOP 5 CHALLENGES 1 Combating methamphetamine. “A lot of our homicides, a lot of our serious crimes, are directly attributable to people who are either dealing in methamphetamine or who are users. We aren’t called ‘the methamphetamine capital of the world’ without good reason.” 2 Streamlining death penalty cases. “My view is the California Supreme Court will gradually provide some of the answers. But we’re going to need some statutory and perhaps even some constitutional changes.” 3 Coping with illegal aliens. “Somehow, either through federal assistance or independent programs, we need to get a handle on the increase of serious crimes committed by illegal aliens.” 4 Keeping up with child abuse and neglect cases. Miller has seen a “gigantic increase” in dependency matters and an “almost geometrical” increase in child abuse cases. 5 Defusing gang warfare. “I don’t think we have even seen the beginnings of the gang problems. It’s going to be an increasing headache we’ll be dealing with for the foreseeable future.” EDWIN MILLER Age: 61 Family: Wife, Barbara, since 1953; Son, Steve, a third-year student at the USC Law Center. Residence: La Jolla Academic: B.A., Dartmouth College, 1947. LL.B., UCLA Law School, 1957. Professional: Deputy City Attorney, City of San Diego, 1959-1964; Assistant City Attorney, 1964-1966; U.S. Attorney, 1966-1969; private practice, 1969-1970; San Diego County District Attorney, 1971-present. SAN DIEGO COUNTY DISTRICT ATTORNEY’S OFFICE Then Vs. Now: Change in the Ed Miller Era

1970-’71 1986-’87 Budget $2.7 million $27 million Lawyers 92 185 Starting salary $10,878 $27,164 Miller’s salary $31,054 $94,432 Courtrooms served 77 112 County population 1,358,500 2,240,650 Homicides* 52 196 Homicide rate* 1 per 26,125 residents 1 per 11,431 residents Robberies* 1,292 5,908 Robbery rate* 1 per 1,051 residents 1 per 379 residents

*Figures are for calendar years 1970 and 1986. Sources: District attorney’s office, County of San Diego, San Diego Assn. of Governments, California Bureau of Criminal Statistics