Judge Says D.A. Has Lost Perspective, Orders Him Out of Murder Case

A Superior Court judge ruled Friday that San Diego County Dist. Atty. Edwin Miller has lost his “perspective” and ordered Miller’s office to step down from prosecuting the murder case against a San Diego insurance executive.

The executive had won a new trial on the murder charge after the state Supreme Court found “serious misconduct” by prosecutors.

Superior Court Judge J. Perry Langford ordered the California attorney general’s office to prosecute the retrial of Herman Martin, who was charged with arranging the 1981 murder of La Jolla attorney Richard Crake.

The attorney general’s office immediately filed notice that it will appeal Langford’s ruling.

Martin’s conviction was overturned in November by the Supreme Court, which upheld the findings of a special referee appointed by the court to investigate the case.

The referee, retired Appellate Justice Gerald A. Brown, had concluded that misconduct by a prosecutor in Miller’s office and perjury by the prosecutor’s key witness resulted in Martin’s wrongful conviction.

Stake Called ‘Too Great’

“In order to vindicate his office from the findings of the referee, he (Miller) must convict a man the referee says is innocent,” Langford said in a written opinion.

“Under these circumstances, the district attorney’s stake in the litigation is too great to assure his even-handed exercise of his discretion in light of all that has gone on and the present state of the case,” Langford said.

Langford’s ruling came on a request by Martin’s attorney, Charles M. Sevilla, who charged that Miller is so biased against Martin that he cannot receive a fair trial if the district attorney’s office is involved. He said Miller is attempting to “vindicate” the honor of his office by winning Martin’s conviction a second time.

The findings of the referee and the Supreme Court had so angered Miller that he issued press releases and made strong public statements criticizing both.

In August, 1986, shortly after Brown issued a report alleging prosecutorial misconduct, Miller said in an interview that Brown’s analysis of the case had been “a rather naive, gullible approach.” Last November, following the Supreme Court ruling, Miller called Brown’s report “just bunk.”

In his decision Friday, Langford said Martin “is entitled to a trial uninfluenced by the relationship of the district attorney with Judge Brown. . . . This court finds the district attorney cannot make the necessary separation. The attorney general should not have that problem.”

Langford pointed out that Miller has been quoted as saying the referee’s findings adopted by the Supreme Court are not true. “This court must proceed on the basis the findings of the Supreme Court are true, and that the other findings of the referee are entitled to deference,” Langford said.

‘Reflected My Thinking’

“In this context, the district attorney may himself be said to be on trial along with Mr. Martin.”

Miller said Friday he had not had a chance to review Langford’s opinion. “But it appears to me that the ruling was based upon comments I made publicly which simply reflected my thinking,” Miller said.

“If I am to be penalized for saying what I think, then so be it.”

In a brief filed in the matter, Thomas McArdle, assistant chief of the district attorney’s appellate division, argued: “The district attorney’s belief that Justice Brown has treated this office unfairly on occasion simply does not lead to the conclusion the district attorney will retaliate against Brown by treating Martin unfairly.

“One can reach such a conclusion only if one has an abiding distrust of the district attorney’s integrity, ethics and good sense.”

Langford responded that he “harbors no such distrust,” but does not regard Miller or his staff as “infallible.”