NEWS ANALYSIS : CALIFORNIA ELECTIONS ATTORNEY GENERAL : Prosecutions and Politics--the Line Becomes Blurred

The murder of Mr. Harlan Potter’s daughter is headline material all over the country. A crowd-pleaser like (the district attorney) could ride himself right into attorney general on that show, and from there into the governor’s chair and from there . . . . --Raymond Chandler, ‘The Long Goodbye’

For decades, the volatile interplay between politics and prosecutions has been a staple of the hard-boiled California detective novel.

Rarely, however, has the issue surfaced in real life to the degree it has in the current Democratic primary race for state attorney general between Los Angeles County Dist. Atty. Ira Reiner and his San Francisco counterpart, Arlo Smith.

In recent weeks, disclosures in a pair of explosive cases in Los Angeles and San Francisco have provided rare glimpses at how the line between political expediency and prosecutors’ legitimate professional judgments can become blurred. The revelations have come in the form of secretly recorded tapes and grand jury testimony involving the McMartin Pre-School child molestation trial in Los Angeles, and, in San Francisco, an inquiry into campaign financing irregularities on a referendum to build a new baseball park for the Giants.

With finite resources and an overwhelming caseload, prosecutors are always subject to charges of making political choices. Besides, all judgments by elected officials are subjective in nature, according to one expert.

“Everything that a public official does in connection with his office is political,” Ira Reiner told a reporter some years back. “There is no such thing as an apolitical decision.”

The question, of course, is at what point does one cross the invisible line and commit an ethical breach? It is a question that is frequently explored, and occasionally exploited, during political campaigns.

At this point, both McMartin and “Giantsgate” could play pivotal roles in the closing days of a race in which Reiner and Smith have each sought to persuade the public that he is more professional than his opponent. Moreover, the issues could continue to reverberate beyond the June 5 primary to the general election, in which either Smith or Reiner will face Republican candidate Dan Lungren.

In Reiner’s case, revelations of secret plea-bargaining talks between his aides and a defense lawyer for McMartin Pre-School defendant Ray Buckey have left the district attorney vulnerable to renewed charges that he placed his political aspirations first in deciding how to proceed against Buckey after his January acquittal on most charges in the longest criminal trial in U.S. history.

Critics say Reiner’s decision to retry Buckey at all has allowed him to appear tough on child molestations while avoiding the need to explain the embarrassing results of the first trial.

Reiner has denied such allegations, terming his decision “not a political matter but a matter of justice . . . (in) a case that absolutely requires resolution.” Moreover, Reiner and his aides have repeatedly insisted that they have never offered a plea bargain to Buckey.

Just last weekend during a TV debate in San Francisco, Reiner emphatically restated that his office has hung tough.

“There has never been any offer whatsoever in any form, direct or indirect, to Mr. Buckey’s attorney with respect to any disposition of the case,” the two-term prosecutor said.

The next day, Buckey’s attorney, Danny Davis, unveiled a secretly recorded audiotape of an April negotiating session between Davis and three members of Reiner’s staff to discuss the terms of a possible plea bargain.

During that meeting, the tape reveals, prosecutors asked Davis to determine whether Buckey would consider a no-contest plea in which he would serve no additional jail time but agree to register with the state as a sex offender. They also discussed a possible plea in which Buckey would plead guilty only because the prosecution’s offer of no jail time was too good to refuse. When Buckey rejected either option, the possibility of a deal fell through.

Red-faced prosecutors, who say they did not previously disclose the legally and politically sensitive meeting because of an agreement with Davis to keep it confidential, have continued to insist this week that no formal offer was made at the meeting.

But Reiner critics say that after Buckey’s veto of a plea bargain, the district attorney, for political reasons, sought to make it appear that no deal was ever even considered.

“The public had an expectation with the force and history behind this case that there was some culpability that had to be reckoned with . . . and Ira Reiner is in the middle of an election that could well be affected by what moves he makes on this case,” said Davis. “. . . Anything that makes him look like he made concessions to weakness, or that the case should have been handled other than a straightforward re-prosecution of Ray Buckey, is not good for him politically.”

Smith’s problems stem from a ballot initiative rejected by San Francisco voters three days after Mayor Art Agnos--a ballpark supporter--charged that out-of-town interests had secretly financed a last-minute campaign mailer to scuttle the plan.

Smith’s subsequent investigation resulted in grand jury indictments of five men--including Sacramento developer and sports magnate Gregg Lukenbill--alleging a conspiracy to conceal the source of funds for the mailer.

Recently revealed tapes and grand jury transcripts have focused a harsh spotlight on actions by Smith’s campaign staff to move the probe forward.

According to court papers, the San Francisco district attorney began his investigation three days before the November, 1989, ballpark vote, after a late-night call from Agnos’ speech writer to Smith’s campaign field director, Dennis Collins.

Collins explained what he did next in a taped interview with investigators, which was made available to reporters shortly after prosecutors presented copies to lawyers for the defendants.

On the tape, Collins said that he passed the tip to Smith and proceeded to type out a press release--on official district attorney stationary--stating that Smith was undertaking an investigation into possible election law violations.

“It was a press release that was prepared by me,” Collins told the investigators, “with Arlo in the office.”

The next day, Collins said, he discussed the case with Smith’s campaign manager, Marc Dann. “The conversations had to do with the logistics of what the D.A. would do,” Collins said. “In my mind, it was a good case for his office and . . . getting out statements and things of that nature were important because the election was the next day.”

Pointing to such statements, lawyers for the the five misdemeanor defendants have argued that the probe was prompted by political considerations. Smith, they contend, sought to nail the ballpark foes to increase his election-year visibility while ingratiating himself with Agnos.

Smith, a district attorney for 11 years, has countered that Collins’ role was completely innocent. Collins was contacted rather than an investigator, he said, because Collins was at a campaign event with Smith that weekend.

Smith has also said there was nothing wrong with the campaign aide preparing the press release because it was written at a time when Smith’s regular staff was unavailable.

“(He was) simply helping me in doing part of the city’s work,” Smith told reporters last week. “There is nothing inappropriate at all in that. It did not involve anything confidential whatsoever.”

Smith, however, has acknowledged that his campaign manager, Dann, engaged in “very poor judgment” in connection with another flap involving the ballpark case.

Dann, like Collins, spoke to investigators last December and tapes of his interview, as well as a transcript of his subsequent grand jury testimony, were recently made available to reporters.

In his interview, Dann acknowledged having called Smith’s chief prosecutor, Robert Podesta, in the midst of the investigation and urged that the probe be speeded up in order to make Smith look like a tough prosecutor. “I called Bob and encouraged the investigation,” said Dann.

Asked why, Dann replied, “Our concern for Arlo’s political career was that this thing proceed as quickly as possible.”

“I don’t care how things turn out,” Dann continued. “But there is a certain way of handling issues, there is a certain way of presenting yourself as district attorney. That . . . ability to handle issues quickly, expediently and responsibly portrays that.”

While admitting that his campaign manager acted improperly, Smith says he issued no reprimand beyond telling Dann that he was wrong. Dann’s statements had no effect on Podesta or other prosecutors, Smith added, because the prosecutors simply ignored him.

But critics charge that the Dann incident spotlights Smith’s willingness to inject politics into the heart of the district attorney’s office.

“I think (Dann’s) actions are bizarre--he’s a loose cannon, he’s dangerous,” said Joseph D. O’Sullivan, who represents one of the ballpark defendants. “And anyone who would align themselves with such an individual should be closely scrutinized.”