Judge Calls Mistrial for Trip, Attorneys Say

A Los Angeles Superior Court judge this week declared a mistrial in a cocaine possession case for reasons that attorneys in the case say apparently had to do with his plans to attend a lawyers’ convention in Toronto.

The mistrial declaration by Judge Stephen Lachs means that the defendant will be set free without a jury having the chance to rule on her guilt or innocence--even though the jury had heard the entire case.

Chief Deputy Dist. Atty. Gilbert Garcetti on Thursday said he was “troubled” by Lachs’ action and ordered a full review of the matter.

Garcetti’s view was echoed by Superior Court Judge Gordon Ringer, who said in court Thursday that Lachs “should know better than that,” according to several people who were present.

Ringer’s comment came as he was asked by Gail Ehrlich, the prosecutor in the drug case, to recall the jury, which was sent home Wednesday afternoon by Lachs. Ringer denied Ehrlich’s motion and set a new hearing date for Sept. 2, at which time it is all but certain that charges against Desiree Charbonnet would be dismissed.

“There’s no question about it,” Garcetti said.

Previous Conviction

Charbonnet, a 32-year-old Los Angeles woman with a previous felony drug conviction, was charged with the felony possession of about a gram of rock cocaine.

A criminal defendant cannot be tried, or placed in jeopardy, twice for the same offense. Such jeopardy takes effect once a jury is sworn to hear the case and it remains in effect except for a few unusual circumstances, such as when one of the lawyers, the judge or the defendant becomes ill. A mistrial can also be declared when a jury cannot reach a unanimous verdict. In such cases, a new trial usually takes place.

At the outset of People v. Charbonnet, according to both Ehrlich and defense attorney Michael C. Carney, Lachs expressed his concern about arriving in Toronto by Thursday, when he was to chair a panel discussion at the annual meeting of the American Bar Assn. “We knew ahead of time that time constraints were there,” Carney said.

Attempts on Thursday to reach Lachs were not successful. His clerk in Los Angeles said the judge, who was appointed to the Superior Court in 1979, did not leave a telephone number in Toronto.

The case began on Monday and a jury was selected and sworn in by noon on Tuesday, according to Ehrlich and Carney, who gave the following account:

By about 4 p.m. Wednesday, the case was ready for final arguments. At that time, Lachs asked if both sides would be willing to deliver their closing arguments to the jury in his absence--an unusual although not unheard-of twist.

Ehrlich refused. To have done so, she explained later, would have been like playing in a basketball game without a referee. She then asked if the case could be postponed until Lachs returned on Aug. 11.

Lachs polled the jurors. Two of the 12 said they would be unable to return then, although the lone alternate juror said he would be able to come back at that time.

Ehrlich was willing to have an 11-member jury decide the fate of Charbonnet, but Carney refused to go along.

Lachs then declared a mistrial.

Both Carney and Ehrlich agreed that Lachs seemed agitated during the final minutes of the case. Usually, the 48-year-old jurist is “a nice guy and a scholarly judge,” said Carney, who has known Lachs for nearly 20 years as both a judge and a lawyer. The mistrial declaration, Carney said, was “out of character” for Lachs.

Ehrlich said she does not begrudge a judge or a lawyer taking a vacation or going to a professional meeting. “But that’s not a good reason for a mistrial.”