Not long ago, Deputy Dist. Atty. Richard M. King, a homicide prosecutor, would have had an insurmountable problem with one of his murder cases--even though three people said Ehriberto Arcelara was the killer.
Independently, the three had told Huntington Beach police that Arcelara, a drug suspect, killed a customer who had tried to steal his drugs. But all three refused to testify at Arcelara’s preliminary hearing, held to determine if there was enough evidence to try him.
“The judge would have dismissed the case,” King said, “and the defendant, a person who is alleged to be a murderer and a drug dealer, would have been turned free.”
Now there is Proposition 115, the court reform initiative born in Orange County and passed by California voters in June. Its various provisions, designed to speed up the legal process, are slowly beginning to impact Orange County’s court docket, such as saving the Arcelara case--at least temporarily--from dismissal.
Overall, the measure is supposed to shorten jury selection, increase the number of crimes punishable by the death penalty, change what kind of evidence can be used, and eliminate preliminary hearings for defendants indicted by a grand jury.
Of specific importance to King’s case, the initiative overturned in part a longstanding rule that barred as unreliable a witness’s recollections of what someone else has said about a crime. In legal parlance such statements are called “hearsay.”
Under the old rules, courts had preferred that the original source of the statements be questioned on the witness stand by prosecutors and defense attorneys during preliminary hearings.
King put the change to work.
Despite rigorous objections from Arcelara’s lawyer, Diana M. Polos, Judge Alan N. McKone permitted King to use “hearsay” testimony under Proposition 115. King put a police officer on the witness stand who recalled what one of the three informants, who were themselves drug suspects, had said about Arcelara.
It was enough to persuade McKone to order a trial for Arcelara.
“It’s a perfect example of how Proposition 115 can be used to make the system work the way it’s supposed to,” King said.
But Polos countered that the Arcelara case epitomized what is wrong with the Crime Victims Justice Reform Initiative, which was sold to voters as a way to ease the suffering of crime victims who endure long court delays and have to testify repeatedly.
“The hearing was a travesty,” Polos said. “It was hearsay upon hearsay. The people who voted for Proposition 115 see the world as them-or-us. I don’t think they really thought through the abrogation of individual rights it permits.”
In another significant way, the measure is affecting the ongoing trial of Dr. Thomas A. Gionis, accused of ordering an assault on his ex-wife, Aissa Wayne, and her then-boyfriend two years ago.
Superior Court Judge Theodore E. Millard, invoking Proposition 115, took control of questioning prospective jurors himself, permitting just limited input from the attorneys.
With the judge controlling the questions, the same as in a federal system, a jury was picked in less than three days. Many believe that it might have take two to three weeks under the old system.
“The judges were very quick to jump on that voir dire section of Proposition 115,” said Deputy Public Defender Thomas Havlena, who is monitoring the initiative for his office.
In a death-penalty murder case before Superior Court Judge Robert R. Fitzgerald, prosecutors wanted the judge to use the initiative in selecting a jury, but the defendant’s lawyer, Charles Margines, objected. His grounds were that the defendant, Ramiro Navarro, had been arrested before the voters passed Proposition 115.
Fitzgerald agreed with prosecutors. Margines appealed to the state 4th District Court of Appeal, and the trial is in limbo until the appellate court decides the issue.
“Until the Supreme Court makes a decision, we aren’t going to know which way to go,” Fitzgerald said. “But I sided with the prosecutor. It seemed to me the voters had spoken.”
Superior Court Judge Francisco P. Briseno, who now has a murder case in which three defendants might get the death penalty, faces the same situation.
In capital cases, even before jury selection can begin, prospective jurors have to be individually interviewed, so they can be sounded out about their views on the death penalty. Proposition 115 eliminates the pre-selection screening, which its authors consider one of the greatest wastes of courtroom time.
As in the Navarro case, the three defendants in Briseno’s courtroom were arrested before Proposition 115. But Briseno decided to take a more cautious route and ruled that jury selection would proceed under the old, pre-selection screening system.
That trial is now into its fifth week of jury selection and has just now passed the pre-screening stage.
While statistics are not readily available, Havlena claims that several hung juries in recent weeks probably can be attributed to the change in the jury-selection process.
“It’s probably to the defense’s benefit more than the prosecutor’s,” Havlena said. “Sometimes the only way to learn about someone’s hidden prejudice--maybe they’ve had a bad experience in the past with a police officer, for example--is to have extensive questioning by the attorneys.”
The greatest impact of Proposition 115 appears to be in preliminary hearings in Municipal Court.
“We’re doing three to five prelims a week in each of our (five) municipal courts,” said Chief Assistant Dist. Atty. Maury Evans. “And we’re trying to apply Proposition 115 in every one where we can.”
That generally means shorter preliminary hearings because a police officer can present hearsay testimony about evidence that might have taken several witnesses to present under the old system. In almost every instance, however, the defense has objected.
“But the judges are going along with the prosecutors on it,” Havlena said.
King is convinced that the results not only benefit the system, but also are financially beneficial to the courts, which cost thousands of dollars a day to operate.
“We put on the Arcelara prelim in about three hours,” King said. “But without the hearsay testimony, it might have taken a week.”
But defense attorneys, such as Polos, contend that the changes make it more difficult to test the truthfulness of witnesses and delay the dismissals of weak cases that should be thrown out as soon as possible.
“The purpose of a preliminary hearing is to weed out unfounded charges,” Polos said. “But what chance did I have in this one? King could put on hearsay testimony, but under Proposition 115, I could not. And I could have shown the judge that one of those drug dealers told police my client only told him the stabbing was self-defense, that it was the victim’s knife.”
King recognized that he might still have a problem prosecuting Arcelara during his trial in Superior Court. But, he said, that bridge will have to be crossed then.
Polos predicted, however, that the “quickie” preliminary hearing will give King the time he needs to come up with a witness against Arcelara.
“He’ll cut a deal with whichever of those drug dealers he can, and there’s a good chance he’ll get a white jury worried about drugs in the county to convict,” she said. “But without Proposition 115, he’d never have made it to trial, and he knows it.”
One other controversial part of Proposition 115 is the requirement that defense attorneys must turn over some of their case files to prosecutors, the same right the defense now has to obtain all the prosecutor’s evidence.
“We’ve had a few requests from D.A.'s to dip into our files, but it’s been mostly minor,” Havlena said. “I think that’s one issue they don’t want to touch until they see just what the (state) Supreme Court has to say about it.”