Countywide : Jurors Split in Case Against Attorney

A mistrial was declared Tuesday when jurors were split whether a Santa Monica attorney committed a crime by advising a client to lie to the court about his drunk driving record to avoid a jail sentence.

Jurors were split 9 to 3 for guilty on an obstruction of justice count against Donald E. Levinson, 42. On two perjury counts they were split evenly.

Prosecutors say they are undecided whether to pursue a new trial.

One juror who voted not guilty in the Santa Ana trial told lawyers afterward: “The problem with this case is that it’s right smack in the middle of the gray area.”

Levinson argued that, under the Fourth Amendment protection against self-incrimination, the courts do not have the right to ask defendants to volunteer information about their driving records. That is the prosecutor’s job, he said. In fact, Orange County is the only county in the state that asks that question on the guilty plea form.

Ordinarily, the question is a moot point, because the prosecutor would have a copy of the defendant’s record for the court to see. But that didn’t happen with Levinson’s client, Loren Lee Bartel of La Habra, in 1986.

Bartel wanted to plead guilty to drunk driving. But he had two recent drunk driving convictions on his record, which meant an automatic 120-day jail sentence. For reasons that were not explained, prosecutors did not have a copy of Bartel’s record. So on the guilty plea form where Bartel was asked if he had any previous drunk driving convictions in the past five years, he answered: “None.” He ended up with a $390 fine.

The problem came two years later, when Bartel was before Municipal Judge Margaret Anderson on a new drunk driving charge. Anderson found his record and could not understand why Bartel had not been jailed for the 1986 offense in light of his other two priors.

Bartel wound up cooperating with prosecutors against his own lawyer. He testified he had answered “none” on the prior convictions question because that’s what Levinson advised him to do.

Levinson was aware that Bartel had prior convictions when he had answered “none” in 1986. Levinson had been his attorney on those cases.

But in two days of fierce cross-examination at Levinson’s trial, the lawyer refused to acknowledge that the “none” answer was a lie to the court. What it meant, Levinson said, was “none, under the Constitution, that the client should have to volunteer.”

But Deputy Dist. Atty. Clyde P. Von Der Ahe said Levinson “lied to the court, and he knew he was lying.”

The jurors deliberated for a day and a half, then told Superior Court Judge Ramona Perez that they were hopelessly deadlocked.

Some jurors said later they disagreed that it was a gray area--they considered Levinson guilty of all charges. But most jurors appeared more upset that Orange County was out of step with the rest of the state on its plea form.

George Tyson of Laguna Niguel, the jury foreman, urged that it be changed. But also, he said “someone should see to it that the DMV (Department of Motor Vehicles) records are right there for the court to see on every case.”

Levinson said later that “I can only hope they’ll finally drop the case. It should never have been filed in the first place.”

The judge set a conference meeting for the lawyers Oct. 19. Von Der Ahe said he would know then whether to go for a new trial.