Perjury Case Is a Trial for Lawyer : Courts: Attorney says he was duty-bound to fill out prior-convictions blank incorrectly. If convicted, he could face a 5-year sentence.

Loren Lee Bartel faced a sticky problem when he wanted to plead guilty to a drunk-driving charge in Municipal Court in Fullerton four years ago--the plea form asked if he had any drunk-driving convictions in the last five years.

He did--two of them. Ordinarily, two prior drunk-driving convictions would mean an automatic 120 days in jail after the third offense. But Bartel did not want to go to jail.

So Bartel consulted his attorney, Donald E. Levinson of Santa Monica. Levinson says that the question was a violation of Bartel’s constitutional rights and that he wrote “none” in the space asking if Bartel had any prior convictions.

Now it’s Levinson--not Bartel--who could suffer the most from that discrepancy with the truth.

Levinson, 42, is on trial in Santa Ana on felony charges of perjury, preparing and offering false documents to the court, and conspiracy to obstruct justice. If convicted, he faces not only disbarment, but a possible prison sentence of up to five years.

The Levinson case holds widespread interest for other defense lawyers in the county, who agree that drunk drivers should not have to volunteer records of prior convictions to the court. Orange County, they point out, is the only county out of California’s 58 that still includes that question on its guilty-plea form.

Usually the question is moot, since prosecutors have the defendant’s record in front of them. But in Bartel’s case, for inexplicable reasons, the prosecutors were unaware of Bartel’s prior convictions.

In testimony Wednesday and Thursday, Levinson repeatedly told the jury that he had an obligation to protect his client’s Fifth Amendment right against self-incrimination.

Levinson, who admitted he actually wrote the “none” answer on the form for his client, contends it’s unfair to call the answer a lie.

“Because it was incorrect to ask the question, then I believe the answer was a correct one,” Levinson testified.

On cross-examination, Deputy Dist. Atty. Clyde P. Von Der Ahe spent several hours trying to get a yes or no answer from Levinson on the same basic question: Did he know that the “none” answer was a lie, or at least an attempt to deceive the court to keep his client out of jail? Levinson each time said he could not give a yes or no answer.

“Did the judge expect you to be honest?” Von Der Ahe asked Levinson Thursday.

“Counselor, we’re going in circles again,” Levinson said. “I was duty-bound not to reveal (the prior convictions). I had an obligation to protect my client’s rights.”

“That wasn’t my question,” Von Der Ahe said.

“That’s my answer,” Levinson responded.

William Yacobozzi Jr., Levinson’s attorney, believes many attorneys in Orange County may also have advised clients that the convictions question is unconstitutional. Outside the courtroom, he pointed out that an appellate court in Northern California has already ruled that no courts should be allowed to ask defendants to volunteer incriminating information on such guilty-plea forms.

But prosecutors contend that the legality of the form is not the issue. What matters, they claim, is that Levinson knew he was lying to the court by answering “none.”

Von Der Ahe repeatedly asked Levinson why he didn’t raise an objection to the form in court rather than give a false answer, and why he didn’t leave the answer blank. Levinson answered that those were not practical considerations because they would not have protected his client’s rights.

The false answer on the form was discovered by Municipal Judge Margaret Anderson. Bartel, who received a $390 fine for his 1986 guilty plea, was brought up on charges in late 1987 for four drunk-driving arrests and was brought before Anderson. After checking his record to determine why he hadn’t gone to jail after his third offense, she found the form from 1986 with the “none” answer.

In court Thursday, Levinson told jurors that he advised Bartel in 1986 that he had four choices: leave the question blank, answer “yes,” invoke his Fifth Amendment right by answering “none,” or hire another attorney.

The first two options were unacceptable because the court would not have accepted the form with a blank answer, and a “yes” response would have meant an automatic jail sentence, Levinson explained.

“Once he told me that he did not want to go to jail, the third choice was the only practical alternative,” Levinson said. He added that the fourth choice, hiring a new lawyer, would have sent up a red flag to prosecutors and the client would still face the same dilemma.

Bartel also faces perjury charges, but prosecutors have already agreed to reduce the case to a misdemeanor in exchange for his testimony against Levinson.

Several other defense attorneys said they empathize with Levinson, but they all agreed that they would not have given false information to the court.

“If the prosecutor did not know about my client’s priors, I’d have left the question blank and hope it got overlooked,” one attorney said. “I have no obligation to help them prosecute my client. But I would never have said ‘none.’ No client is worth losing your ticket.”