Informant-Aided Convictions Going Unchallenged : Justice: Few defense lawyers are accepting an invitation to appeal murder convictions obtained with the help of jailhouse snitches.

Although many defense lawyers shouted their outrage when a jailhouse informant scandal broke last year, surprisingly few have accepted invitations from the Los Angeles County prosecutor to challenge murder convictions that were obtained with informants’ help.

Dist. Atty. Ira Reiner’s office said it has sent invitations to defense lawyers in 142 cases that resulted in convictions in the last decade.

Defense lawyers so far have taken steps to challenge convictions in only 13 of the cases.

Prosecutor Antonio Barreto Jr., a member of a four-person team organized by the district attorney’s office to handle an expected mountain of litigation, commented: “There was an awful lot of noise at the beginning, and very little action.”

Gerald F. Uelmen, dean of the law school at the University of Santa Clara, characterized the defense response as “disappointing. I’d go further and say it may be cause for alarm if it indicates a wholesale abandonment of clients by their lawyers.”

Prosecutors and defense lawyers, in interviews, suggested many reasons for the small response, ranging from lawyer laziness, to incompetence, to a belief that appeals would be futile because informants played only a small role in some cases in which there was ample other evidence of guilt.

In addition, many attorneys cited a belief that they had no ethical obligation to represent former clients.

Nearly a year after the scandal broke, there is no agreement on the number of cases in which jailhouse informant testimony figured. The district attorney’s office, which now says the number of cases involving informants in the last decade is 142, has, at various times, put the number at 175 or more. The Los Angeles Criminal Courts Bar Assn., a predominantly defense lawyer group, has placed the number at 240. Almost all are murder cases.

Patricia Nelson, an attorney at the Los Angeles office of the California Appellate Project, which finds and supervises lawyers to handle appeals for indigent felons, said she has identified about 170 defendants who now have no lawyers because their appeals have been denied. The overwhelming majority of their former lawyers have declined to try to reopen cases.

Nelson said many of these lawyers have a false expectation that some other agency, such as the Los Angeles County Grand Jury, will look to see whether injustices have been done. But former California Supreme Court Justice Otto Kaus, who is acting as special counsel to the grand jury on informants, has said repeatedly that he is not looking at individual cases--only at possible patterns of law enforcement misconduct.

The office of the state public defender, which is the other main source for representation of indigents in appeals of their criminal convictions, said in a letter last March that it was “unable to participate” in informant litigation on closed cases.

Chief Assistant State Public Defender Edward H. Schulman said in the letter that his agency had identified eight of its cases that involved informants and were still on appeal. Schulman said the agency would investigate the possibility of litigating in formant questions in those cases, but warned that his appellate lawyers had “very little expertise in the handling of the kinds of evidentiary hearings which may be contemplated.”

His comments highlighted another persistent problem: While many trial lawyers are unfamiliar with the highly technical procedural steps necessary to try to reopen an old case, many appellate lawyers, who earn their livings by reviewing transcripts and writing briefs, are unfamiliar with walking into a courtroom to question witnesses.

There is no tradition of close cooperation between the two types of criminal defense lawyers.

Leslie Abramson, president of the statewide defense lawyers lobbying organization, California Attorneys for Criminal Justice, offered yet another reason for the lack of response. Abramson, a trial lawyer, said she has not had a chance to pursue her own informant case and probably will not for some time. “People . . . have to decide if that’s the stuff they’re going to work on when they have tons of other stuff happening,” she said.

Uelmen, the law school dean, suggested still another reason, “the absence of ‘Mr. Green.’ ” “Mr. Green” is a criminal lawyer’s expression meaning money.

Money is available to pay the lawyers, although some lawyers do not know it. David Horowitz, the supervising judge for criminal matters in Los Angeles Superior Court, has said that he would appoint lawyers to represent their own imprisoned, and presumably impoverished, former clients at public expense.

Of the 13 cases in which defense lawyers have taken action, eight have involved the filing of papers. These cases are at early stages. In the other five case, lawyers have asked the district attorney’s office informally for additional information before deciding whether to file papers.

Another dozen or so defense lawyers have indicated that they may take action.

No convictions have been overturned.

Reiner invited the defense attorneys to contest the cases after a veteran informant, Leslie Vernon White, demonstrated for his jailers in October of last year that he could convincingly fake another inmate’s murder confession.

White, a convicted robber and kidnaper, showed how he could feign having talked to an accused murderer he had never met by gathering inside information about the murder from law enforcement agencies. To gather the information, White used a jail telephone and posed as a law officer.

His demonstration raised the possibility that he and other informants had perjured themselves about confessions in return for leniency in their own cases, and that, as a result, innocent people had been convicted.

In the wake of the demonstration, the district attorney’s office began centralizing information about White and other informants it had used.

It quickly became apparent that the district attorney’s office had been so disorganized that its prosecutors had not disclosed to the defense, as they were required to do, all the negative information the office had on informants it had used.

This failure to disclose raised the possibility that some defendants had not gotten fair trials, in that their attorneys had not been given adequate chances to discredit informants in front of judges and juries.

Typically, jailhouse informants testify that they have heard confessions from other inmates, in exchange for leniency in their own cases. Terms of the leniency were sometimes not disclosed. Nor were other cases in which the same informants had testified.

Deputy Dist. Atty. Frank E. Sunstedt Jr., a member of the team of prosecutors organized to handle litigation arising from the informant scandal, said his team has found a a pattern of non-disclosure.

He said there was nothing nefarious about this. It was merely inefficiency related to the office’s size. With 800 lawyers, the district attorney’s office is the largest local prosecutor’s office in the country. Until the informant scandal broke, any prosecutor had authority to use an informant and might do so without the knowledge that other prosecutors had also used him.

A U.S. Supreme Court case on the subject, Giglio vs. the United States, however, says size of the prosecutors’ office is no excuse for failing to disclose critical information to the defense.

In that case, the court granted a convicted forger a new trial because the government had failed to disclose an alleged promise of leniency to a key witness in return for his testimony. The court said that even though the promise was made by one prosecutor without the knowledge of the prosecutor who tried the case, the prosecutors’ office was at fault.

Defense attorneys who handled cases in which White figured as a prosecution witness received letters from Reiner calling attention to this sort of problem.

The letters said the district attorney’s office had learned that “at the time Mr. White testified as a prosecution witness . . . information existed that you may not have been aware of, which might adversely reflect upon Mr. White’s credibility. As a result, you may not have been able to thoroughly develop evidence which might have been used to impeach the testimony of Mr. White.”

Defense attorneys who handled cases in which other informants figured received letters which said that the district attorney’s office did not know whether the informants “acquired information in a manner alluded to by Mr. White” in his demonstration. “However, since the courtroom is the appropriate forum in which to fully explore this issue, our office will join with you in expediting the hearing of any appropriate motion you may wish to bring.”

In the months since those letters were written, stacks of files that should have been disclosed to trial lawyers, but were not, have piled up at the district attorney’s office, unexamined by defense lawyers.

In apparent repudiation of its earlier promise to expedite hearings, the district attorney’s office has fought those few defense lawyers who have filed motions seeking the additional information.

Prosecutors said that defense attorneys are welcome to look at the district attorney’s files if they make an informal request. But prosecutors said they feel that they have to oppose formal requests. They said they fear establishing a precedent by which defense lawyers could file discovery motions in death penalty cases as a way of postponing executions indefinitely.

Defense lawyers Gigi Gordon and Gerald Chaleff are the only ones who have won a formal discovery motion in an informant case. Gordon said that informal discovery would have been insufficient because the district attorney’s office was only offering to show its own files, and not the files of other law enforcement agencies that might have critical information about an informant.

The district attorney’s office, joined by the state attorney general’s office and the county counsel’s office, has appealed the trial court ruling granting post-conviction discovery in Gordon’s case.