Tangled Legal Situation in Deputies’ Case a ‘Prosecutor’s Nightmare,’ Experts Say

Federal prosecutors pressing corruption charges against six Los Angeles county narcotics officers are facing a nightmarish legal situation.

They have to explain why FBI reports of interviews with their key witness were destroyed. And they are faced with the onerous problem of having an FBI agent contradicting their key witness about the degree to which FBI interview reports on the case were altered.

Some legal experts say it will be very difficult to repair the damage inflicted to the credibility of former Sheriff’s Sgt. Robert R. Sobel, the prosecution’s key witness.

The problems which surfaced this week have already caused a mistrial in the case. Although prosecutors are hoping to reverse that ruling, it is all but certain the defense lawyers will cite the destruction of the FBI reports and the contradictions in an attempt to overturn convictions in a similar case tried last year. Similarly, the legal problems are likely to endanger another pending drug corruption trial involving former narcotics officers from the Sheriff’s Department. In all these cases, Sobel is a key witness.

“This is a prosecutor’s nightmare,” said Loyola University Law School professor Laurie Levinson, a former federal prosecutor.

The alteration of the interview reports and the destruction of the originals was first revealed by Sobel on Wednesday. The revelations prompted U.S. District Judge Robert M. Takasugi to declare a mistrial. But he stayed his decision until Tuesday to give prosecutors a chance to challenge his ruling.

The government’s attempt to mitigate the damage began Friday with the testimony of FBI Agent Robert Hightower, but his account differed significantly from the testimony given by Sobel.

Sobel had said he made more than 140 changes in two key reports which covered half a dozen interviews in 1989. And he said the revisions included substantial changes regarding alleged misconduct by defendants.

But Hightower testified Friday that Sobel suggested only about 15 changes--virtually all of them spelling corrections or other minor alterations.

Levinson said that to persuade Takasugi to reverse himself on his mistrial decision, government attorneys have to convince the judge that there was no bad faith in the handling of the evidence. And the government will have to demonstrate that the changes made to the FBI reports were not so significant that they would unfairly prejudice the defendants.

The government is likely to survive the first of those two hurdles, said Richard E. Drooyan, a Los Angeles trial lawyer who also is a former federal prosecutor. But he said the second test is more difficult.

“The standard is whether the defense had a fair opportunity to cross-examine the witness and cast doubt on his credibility,” Drooyan said.

That could be difficult to prove, said another Los Angeles lawyer, Donald C. Smaltz, a specialist in white-collar criminal defense. “The government is saying the changes are minor. But it’s like beauty--it’s in the eye of the beholder. Things someone thinks are minor could be very significant.”

Southwestern University law professor Myrna Raeder said the mere destruction of the original typed interviews is noteworthy because courts in this federal judicial district “have had a consistent policy since 1976 that FBI must preserve original notes taken by agents during interviews with prospective government witnesses.”

On the other hand, Levinson said the fact that the FBI agents kept their original written notes might save the case for the government.

Loyola University’s Levinson said it was possible that Sobel’s statements about the FBI reports might be deemed credible, but this, in turn, could raise doubts about the FBI agent’s testimony or its reports. “Every discrepancy is grist for the defense,” she said.

Virtually all of the lawyers interviewed said they thought it was unlikely that Takasugi would dismiss the charges. They said that as a general rule, a defendant waives his right to argue that he has been subjected to double jeopardy when he asks for a mistrial.

Another problem faced by government lawyers is the likelihood that lawyers who represented seven sheriff’s deputies convicted in another drug corruption case last year would seek to have those verdicts overturned because they were not told about the altered FBI reports.

The defense lawyers “would move for an evidentiary hearing to determine what happened to the reports, to make sure the waters were not similarly polluted in that case,” said attorney Smaltz.

“They could ask for a new trial or to have the charges dismissed on the basis of government misconduct,” he said.

Finally, the government is faced with the prospect that Sobel’s credibility, already under attack by defense lawyers, had been further eroded by the contradictory testimony provided by FBI Agent Hightower.

“Any time you have the situation where the government takes the position that one of their key witnesses is untruthful on any material issue, the defense is able to argue to the jury that the government has conceded that he is not a credible witness,” said Los Angeles criminal defense lawyer Donald M. Re.

Assistant U.S. Atty. Michael Emmick, the lead prosecutor in the case, declined comment when asked by reporters about any damage to Sobel’s credibility after this week’s events.

But attorney Mark Beck, who is representing Sobel, said, “I cannot understand how these events, in any way, can undermine his credibility.” He said that Sobel’s “version of the facts has been consistent from day one--as communicated to the government.”