Ruling Strikes at Key Provision of Anti-Crime Law


A San Diego judge has struck down a key provision of Proposition 115, an unexpected setback for prosecutors who had viewed a recent state Supreme Court ruling on the sweeping anti-crime initiative as a go-ahead for dramatic changes in court procedures.

The Dec. 24 Supreme Court ruling stripped the prosecution-sponsored initiative of its broadest provision, which would have limited the rights of criminal defendants listed in the state Constitution. The ruling appeared, however, to uphold the bulk of the measure, which sets forth vast changes in procedure aimed at reducing delays in the criminal justice system.

But Superior Court Judge Michael Wellington, acting in a murder case, ruled Friday that the Supreme Court’s ruling actually required him to strike down one of the sections that seemingly had been upheld. That part of the measure would have required defense lawyers to disclose evidence to prosecutors before trial.

The reason, Wellington said, is that the high court’s emphatic support for the state Constitution breathed renewed vitality into a variety of California judicial decisions, including several that bar the forced disclosure of defense material on the grounds that their release would violate the privilege against self-incrimination.


The ruling is believed to be the first in the state interpreting the Dec. 24 decision, and concerns an element of the measure that was widely viewed by defense attorneys as damaging.

Wellington’s decision does not have value as formal precedent in other California courtrooms. But as the state’s first ruling, and as a decision issued by a former prosecutor, it is certain to add strength to an expected wave of defense attacks on individual elements of Proposition’s 115 changes.

Encouraged by the Dec. 24 ruling, defense attorneys statewide have begun to challenge the measure’s extensive statutory and constitutional changes in court procedures--separately challenging changes such as defense disclosure of materials.

“To me, at least, this is a major ruling,” said Public Defender Frank Bardsley, whose office brought the challenge to the provision. “We were overjoyed.”


Deputy Dist. Atty. Thomas McArdle said he was uncertain whether prosecutors will appeal Wellington’s ruling because that case might be resolved today at a settlement conference.

“If this case is going to plead out, we’re not going to chase our tail for the fun of it,” McArdle said. If the conference does not produce a plea bargain, however, prosecutors will give “serious consideration” to an appeal of the ruling, he said.

The state Supreme Court already is due Thursday to consider whether Proposition 115 applies to crimes that took place before June 6, when voters enacted the measure.

Wellington was appointed to the Superior Court in 1989, after 18 years with the attorney general’s office in San Diego, where he was active in the state’s campaign to execute convicted killer Robert Alton Harris.

His Proposition 115 decision came after he initially ruled last month that the measure required the public defender’s office to turn over materials. He reversed himself after the Dec. 24 state Supreme Court ruling.

Both rulings came in the case of Leonard Johnson, 30, of Lemon Grove, who is accused of first-degree murder in the Oct. 24 knifing of Ty Mullen, 18, of San Diego. Johnson, whose trial is set for next Wednesday, remains in the County Jail, unable to post $350,000 bail.

At the preliminary hearing Nov. 15, Deputy Public Defender Terry Zimmerman asked the main witness in the case, Kevin Gauthier, who was Johnson’s neighbor and a friend of Mullen’s, various questions that suggested that the public defender’s office had interviewed other neighbors.

The district attorney’s office then asked for the names and addresses of those neighbors, as well as any statements those neighbors might have made, citing Proposition 115’s disclosure directive.


On Dec. 24, Wellington ordered Zimmerman to turn over the materials. That same day, though, the California Supreme Court issued its ruling on the measure, prompting Zimmerman to ask Wellington to reconsider.

The Supreme Court ruled unanimously that the key section of the measure--which requires state courts to follow stricter U.S. Supreme Court rulings in applying 12 separate constitutional rights in criminal cases--was unconstitutional.

The proposition was so far-reaching, the court said, that it amounted to a “revision” of the state Constitution, which cannot be enacted by initiative.

The decision was seen--particularly by defense lawyers--as a strong affirmation of the doctrine of state constitutional independence. Under that doctrine, courts use their own constitutions to grant their citizens broader rights than required by the U.S. Supreme Court under the federal Constitution.

By a vote of 6 to 1, however, the California court upheld the other portions of the initiative that seemingly prescribed the extensive changes in criminal case procedures. Among other things, those changes would deny defendants indicted by grand juries the right to preliminary hearings and grant to judges the right to take over from lawyers the principal questioning of jurors.

The changes also would force defense lawyers to turn over sensitive materials--such as the names and statements of witnesses before trial--just as prosecutors must share materials with defense attorneys.

Wellington ruled Friday that the California Constitution traditionally has barred prosecutors from obtaining defense materials, noting that in a series of cases dating back 20 years, the state Supreme Court has affirmed the right of defense lawyers to be free from prosecution snooping.

That’s because traditionally, the burden of proving guilt is on the prosecution, Zimmerman said Tuesday. Forcing the defense to turn over its own materials “could, conceivably, lighten (prosecutors’) burden” because those materials might contain statements made by the person accused of the crime, which would violate the right against self-incrimination, she said.