Mistrial in Drug Officers’ Case Rescinded

A federal judge on Wednesday rescinded his mistrial ruling in the civil rights case against six Los Angeles County narcotics officers but opened the door for defense attorneys to cross-examine the key prosecution witness about numerous contradictions between his testimony and that of two FBI agents.

U.S. District Judge Robert M. Takasugi declared a mistrial last week after the government acknowledged that corrected versions of key interviews with former Sheriff’s Sgt. Robert R. Sobel had been inadvertently destroyed by the FBI.

But Takasugi said a mistrial was unwarranted because newly discovered documents could be used to reconstruct the missing reports. He also concluded that there was no misconduct by prosecutors or the federal agents, who interviewed Sobel and destroyed the key documents.

“There’s no question . . . that (the agents) used bad judgment,” the judge said, “but I don’t think you can call that bad faith.”

The agents--Robert Hightower and Charles L. Teevan Jr.--had testified that they had thrown away rough drafts of corrected interviews with Sobel in 1989.

The agents said the ex-sergeant made only minor corrections that were incorporated in the final reports provided to defense attorneys. But Sobel testified that he made more than 140 revisions in his two FBI reports, including many significant changes involving alleged wrongdoing by the defendants.

The dispute over the destroyed documents had halted the 2-month-old trial of five deputies and a Los Angeles police detective who are accused of beating drug suspects, skimming drug money and planting narcotics on suspects between 1985 and 1987.

A mistrial could have jeopardized several other criminal cases stemming from a 3-year-old money-skimming investigation because Sobel is considered a major prosecution witness against his former co-workers. The investigation of local narcotics officers resulted in last year’s conviction of seven deputies, the indictment of 18 deputies and the suspension of more than 30 officers.

“I don’t think the appropriate remedy is to take out a bazooka or to take out an atomic bomb” to correct an inadvertent error by the two FBI agents, Assistant U.S. Atty. Michael Emmick argued Wednesday. He pleaded with Takasugi to allow the trial to continue and said a mistrial “could effectively scuttle” the investigation known as Operation Big Spender.

After Takasugi withdrew his mistrial ruling, Emmick said: “Naturally, we’re pleased with the judge’s decision. That’s as far as I will go.”

The defendants, who had worked together on anti-drug teams in Southwest Los Angeles, showed little emotion after Takasugi’s ruling.

Their attorneys expressed disappointment--but said the prosecution’s case had been weakened in recent days.

“I think this is going to hurt the prosecution in the long run,” said Roger Cossack, who represents Sgt. Robert S. Tolmaire.

“We think the judge committed an error,” said Robert Ramsey, who represents Deputy J.C. Miller.

“Obviously, if there is a conviction, this is a strong issue on which to appeal,” said David Wiechert, who represents LAPD Detective Stephen W. Polak.

In reversing himself, Takasugi said defense attorneys would have an opportunity to use handwritten notes by the FBI agents, an early version of their report and other newly discovered material to “vigorously cross-examine Sobel,” whose credibility is seen by both sides as being critical to the government’s case.

Takasugi also noted that prosecutors were placing themselves in a “rather embarrassing position for the government” because they have sided with the FBI agents whose testimony contradicts Sobel’s.

“You are, in essence, telling me that your chief witness is not telling the truth,” Takasugi told prosecutors.

“What I’m telling you is that our chief witness was mistaken,” Emmick replied.

The prosecutor, however, admitted that Sobel’s credibility has already been shaken by a number of revelations during cross-examination, including disclosures that Sobel had perjured himself hundreds of times in court, stolen nearly $200,000, participated in cover-ups during internal Sheriff’s Department investigations, assisted in planting narcotics on suspects and engaged in “occasional marital infidelity.”

“I think it’s fair to say that he has been impeached as much as any witness in recent memory,” Emmick told the court.

When the trial resumes Tuesday--with Sobel back on the witness stand--defense attorneys are expected to resume their attack on his credibility, armed with the newly discovered FBI documents and testimony from the FBI agents.

“You’ve got the government now saying their chief witness is a liar,” said attorney Lindsay Weston, who represents Deputy Roger R. Garcia.

“All I can say is I look forward to cross-examining Sobel,” added attorney Larry Bakman, who represents Deputy John L. Edner.

Bakman was questioning Sobel last week about inconsistencies between his testimony and statements in his FBI reports when the former sergeant stunned the court by disclosing that the FBI documents were replete with mistakes.

After the judge excused jurors, Sobel described how FBI agents had interviewed him, prepared reports on those interviews, then showed him drafts of the reports so he could correct errors.

Both FBI agents Hightower and Teevan said they had never done that before in their combined 26 years of FBI experience. They also testified that they were instructed to see Sobel by Assistant U.S. Atty. Thomas A. Hagemann, who was then heading the money-skimming investigation.

The defense argued that by allowing Sobel to review his FBI reports, the government permitted the witness to erase many inconsistencies that could have been used to impeach his testimony.

“It allowed Sobel to change his statements,” said defense attorney Bradley Brunon, who represents Deputy Edward D. Jamison and who accused the government of “rescripting” the Sobel interview.

Brunon also said that when the FBI agents threw away their copies of the changes, including Sobel’s handwritten notes on one report, it amounted to the “willful destruction of exculpatory evidence.”

Some of the attorneys for the seven former deputies convicted last year said they will review the new evidence to determine whether it could have influenced the outcome of the first money-skimming trial. If so, they plan to use it as part of their appeal for a new trial, they said.

The prosecutor in another money-skimming case scheduled to go to trial in January said he was pleased with Takasugi’s ruling.

“I think it’s the correct decision,” said Assistant U.S. Atty. Steven M. Bauer, who will prosecute the case against three deputies and two former deputies accused of skimming hundreds of thousands of dollars. “But our case is going forward,” he added, “with or without Bob Sobel.”