Grand Jury Jail Informant Probe Out of Funds

A Los Angeles County grand jury investigation into misuse of jailhouse informants by law enforcement officials has run out of money at a critical, preliminary stage.

“We have not really even started to present the bulk of our testimony--just a well-encapsulated and very well-documented episode. I guess you could call it a smoking gun,” the special counsel running the probe, retired California Supreme Court Justice Otto M. Kaus, said in an interview last week.

Kaus said he has incurred expenses of about $250,000 after five months of work and will soon seek another $250,000 to complete the probe, which he called “one of the most significant investigations that any grand jury could ever do.”

However, county officials say they have an “ironclad” contract that calls on Kaus to do the entire investigation for $250,000 and no more.

It is not clear how the controversy will be resolved.

The former Supreme Court justice, who is now in private practice, was appointed in May by Atty. Gen. John K. Van de Kamp under a law that allows the attorney general to name a special counsel at the request of a county grand jury, at county expense.

Kaus, a senior partner in the prominent Los Angeles firm of Hufstedler, Miller, Kaus & Beardsley, signed a contract with the county that calls for him to conduct the investigation at a “total cost” of $250,000.

However, Kaus indicated he had a separate, oral understanding with county officials--something they disavow.

“It was generally felt and understood,” Kaus said, referring to himself, County Counsel Dewitt W. Clinton, and their aides, “that the first $250,000 would not . . . complete the investigation. And that has proven true in spades.”

Informed of Kaus’ comments Friday, Clinton said: “That is absolutely inaccurate. We have an ironclad contract with him to do an investigation and report for $250,000.”

Apprised of the controversy, Senior Asst. Atty. Gen. Edward T. Fogel Jr., who was also present during the contract negotiations, declined to comment.

Kaus said in the interview last week that the investigation has been slow getting off the ground because he and his staff have had to organize an unexpectedly large quantity of documents and because of delays--in part caused by county requirements--in the hiring of private investigators.

But Kaus, himself, has been criticized for being disorganized by some who have come in contact with his probe.

A Los Angeles defense lawyer, Gigi Gordon, who has coordinated data-gathering on jailhouse informants for local defense attorneys, said she offered Kaus her voluminous files. She said he sent an associate to her office while she was on vacation, but that he didn’t copy anything. She said she never heard from Kaus or his firm again.

“How come no one has called me to testify?” she asked in frustration. “I have spent close to one year now investigating this issue, compiling information and so forth. How come the grand jury doesn’t want to hear what I have to say? I don’t understand what it is they’re doing?”

In the interview, his first public comments on the investigation, Kaus said he is continuing to work on the case and expects it will last at least five more months.

“It may be possible to indict a few people,” the former justice said.

But he said he sees the investigation’s main purpose as developing suggestions for “standard operating procedures” to avoid the possibility of informants fabricating confessions.

He would not discuss the evidence that he characterized as a “smoking gun,” citing a law that makes it a crime to disclose secret grand jury testimony.

However, confidential sources said that the only evidence presented to the grand jury thus far concerns previously publicized favors done for one informant, Leslie Vernon White--specifically a series of “furloughs” he received while behind bars, with the help of the district attorney’s office.

Preliminary Report Due

Knowledgeable sources said that Kaus is also gathering information on 47 other jailhouse informants and auditing four county law enforcement funds used to pay them.

Kaus said he is now preparing a “preliminary report” on his findings for the grand jury.

He said he hopes the grand jury will then decide to retain him to conclude the investigation.

Kaus was named special counsel after Van de Kamp received repeated requests over several months from the 1988-89 grand jury for an independent lawyer to help it investigate a jailhouse informant scandal.

The scandal broke when longtime informant White demonstrated for local authorities something that defense attorneys had long suspected, but had never been able to prove--that an informant could convincingly fake the confession of a murder suspect he had never met.

Informant Lied

Traditionally, authorities have considered an informant’s account to be corroborated if they could show that he was with the suspect in jail and reported facts about the crime that should have been known only by the criminal.

White, however, showed that he could feign having talked to the criminal, and gather his inside information about the crime from law enforcement agencies by posing as a law officer on a jail telephone.

In the wake of White’s demonstration, news organizations, including The Times, documented some of the extraordinary favors White had received while reporting confessions, some of which he has since acknowledged were false. One favor, for example, was his release immediately after he was convicted for robbery and kidnaping. Moreover, he was repeatedly used as a prosecution witness, although some top officials of the district attorney’s office knew him to be unreliable.

The Times documented a variety of other techniques, ranging from the artful to the crude, that other jailhouse informants have used to fake confessions.

As scandalous disclosures mounted, defense lawyers repeatedly petitioned the 1988-89 grand jury to conduct a probe. That grand jury agreed, but left office at the end of June.

Some members of the 1989-90 grand jury, which inherited the probe, are less enthusiastic about it, according to confidential sources. Some--apparently a minority--think it is a waste.

Kaus charges $350 an hour for his time, a figure that is not unusual for very accomplished lawyers. He has made use of other attorneys in his firm, who bill at rates ranging from $75 to $285 per hour, according to invoices he has submitted. The three private investigators he hired charge $20 an hour, knowledgeable sources said.

In the interview, Kaus acknowledged that some grand jurors had raised questions about some of his itemized billings. But he said those “questions have been and are being resolved satisfactorily as far as I know.”

In addition, a confidential source said that some grand jurors were concerned about a potential conflict of interest, when they learned that the lawyer who is Kaus’ chief assistant is married to a deputy district attorney.

The assistant, Warren Ettinger, a prominent attorney in his own right, represented two deputy district attorneys--both of whom had used informants--when they were accused of crimes unrelated to this probe.

Kaus said he could not recall if he disclosed Ettinger’s potential conflicts of interest to the second grand jury. But he said he disclosed them to the first, and to the foreman of the second panel, who abruptly resigned for “personal reasons” last month while Kaus was on vacation in Europe.

Kaus said the former foreman apparently had not conveyed to the full grand jury panel information Kaus gave him during three briefings.

Neither the former nor present foremen of the grand jury responded to requests for comment.

Kaus said he saw no problem with Ettinger’s relationships, but that Ettinger, his wife and former clients had executed waivers of their rights to confidentiality in case a conflict of interest arose.

Kaus said he and Ettinger will soon “present our report and recommendations to the 1989 grand jury and the 1989 grand jury will have to decide if they want to retain us.”

Degree of Trust

The degree of trust the new grand jury has in Kaus could be critical--particularly if the grand jury feels it will have to dip into the $600,000 it has budgeted for other investigations in order to pay Kaus the additional money he wants.

Kaus indicated he does not think this will be necessary.

“Some members of the grand jury think they have to sacrifice some other function to continue,” he said. “As far as I know, they’ve been misinformed.”

But county counsel Clinton said that if Kaus asks for more money after his preliminary report, Clinton’s position will be that the grand jury will have to make a new request to the attorney general--or to the Superior Court--for the appointment of a special counsel.

He said he would then argue that additional funds for the special counsel would have to come from the existing grand jury budget or be specially appropriated by county supervisors.