O.C. Rape Punishment Record Lags : Crime: It is the worst among six most populous counties in arresting rapists and pursuing the harshest penalties, statistics show. D.A. disputes data, says the conviction rate is high: ‘What we are doing works.’

The Orange County district attorney’s office, whose decision not to prosecute an accused rapist in 1993 may have left the paroled ex-convict free to commit a savage rape-murder, has the worst record among prosecutors in the state’s six most populous counties for seeking the harshest punishment in rape cases, state figures show.

More often than the statewide average--and more frequently than their counterparts in the other heavily populated counties--Orange County prosecutors reduce rape charges sought by police from felonies to misdemeanors, which reduces the range of punishment from three to nine years in prison to a year or less in the County Jail.

And even when Orange County prosecutors start out seeking felonies, the cases often end up being resolved as misdemeanors, as the more serious charges get reduced when defendants agree to plead guilty.

Among the most populous counties, state figures show:

* Orange County prosecutors have the lowest conviction rate for rape in superior courts, where felonies are most often resolved.

* More often than not, a person arrested for rape and convicted of a felony in Orange County is punished with a year or less in the County Jail and three years of probation, and the jail stay is reduced by 25% for inmates who stay out of trouble. Thus, many one-year sentences amount to no more than nine months in jail.

Orange County prosecutors defend their handling of rape cases, saying their overall conviction rate is high, even though sexual assault cases are probably the most difficult to prove. They say that taking an unwinnable case to trial is irresponsible, and rarely attempted.

“If we were to file just any rape case that comes along just to roll the dice, that would be tantamount to the misappropriation of government funds, your taxpayer dollars,” said Charles J. Middleton, supervising deputy district attorney for the sexual assault and child abuse unit.

Dist. Atty. Michael R. Capizzi said he does not agree with the statistics relied upon by The Times, arguing that they were incomplete and misleading. The data comes from the California Department of Justice, which regularly publishes the crime and punishment statistics it collects from every law enforcement agency, district attorney’s office and courthouse in the state under strict reporting guidelines prescribed by law.

“We prosecute rapes, and all other crimes, vigorously,” Capizzi said. “If you look at the crime rate in this county, you’ll see that in all seven major felony crimes, we are the lowest or near the lowest. What we are doing works.”

Last week, The Times learned that Edward Patrick Morgan Jr., the three-time convicted rapist charged with murdering a 23-year-old Huntington Beach woman, in 1993 had been arrested by police, who had asked the district attorney’s office to prosecute him for a fourth rape.

But instead of prosecuting him for that rape, which could have brought Morgan a 12-year prison sentence if convicted, prosecutors elected to let parole officials send him back to prison for the remaining 12 months of his sentence for an earlier rape conviction.

Middleton said his office had no chance of winning a conviction on the 1993 case because of inconsistencies in the woman’s statements to police.

Initially, the woman told police that she was raped by two men who forced her into their car--not a lone rapist who gave her a ride and whom she drank a few beers with before the rape.

After Morgan, 28, was identified as the prime suspect in the murder of Leanora Annette Wong, the woman told The Times that she initially told police there were two rapists because she feared retaliation if she identified Morgan, and was afraid that authorities would think she was to blame for the rape.

But the woman was willing to testify--which many rape victims are reluctant to do--in order to help convict her attacker. The woman told The Times she couldn’t believe the district attorney’s office didn’t prosecute.

“I wonder how many times somebody gets off because a story isn’t perfect the first time,” she said. “I feel like somebody is dead because of this.”

The lack of prosecution in the Morgan case and the statewide statistics raise questions about the diligence of the Orange County district attorney’s office in pursuing rape cases and in pushing for the toughest prison sentences for convicted rapists.

For the three most recent years for which statistics are available, Orange County’s criminal justice system ranks at the bottom of the state’s six most populous counties in arresting rapists and then pursuing rape cases as felonies, according to the California Department of Justice.

Law enforcement agencies in Orange County, for example, make 31 arrests for every 100 rapes, while Alameda County makes 40, San Diego County 37, Los Angeles County 35, and Santa Clara County 33. Like Orange County, San Bernardino County also averages 31 arrests.

Once an arrest has been made, it becomes the decision of the district attorney’s office to reject or file the case, and to treat it as a felony or a misdemeanor.

Of the six counties reviewed, Orange County prosecutors chose to file 78% of their cases as felonies, while the other counties filed between 89% and 93%.

Orange County prosecutors point to their high conviction rate of felony filings. In fact, Orange County ranks fourth best of the six counties reviewed. Its conviction rate for felony rape filings is lower than San Diego, Los Angeles and Santa Clara counties, but higher than Alameda and San Bernardino counties.

Yet even when an Orange County rape suspect is convicted on felony charges, there is a greater likelihood that the defendant will end up in County Jail rather than state prison. Of the six most populous counties, Orange County sentences the fewest--40% of those convicted--to prison.

Capizzi has a policy of not plea-bargaining felony cases. Middleton said that if a case is filed as a felony, “we go for state prison.”

But a review of more than 30 randomly selected felony rape cases by The Times shows a pattern of defendants, originally facing the most serious types of rape charges, pleading guilty to less serious charges, and receiving no more than a year in County Jail.

For example:

* In 1991, a 26-year-old man was arrested for raping a woman from Reno while she was unconscious in a Costa Mesa apartment. He was charged with both forcible rape as well as raping an unconscious person. Faced with a maximum sentence of eight years in state prison, he received 360 days in County Jail after agreeing to enter a plea of no contest to raping an unconscious person. The second charge was dropped by prosecutors.

Middleton said there were problems with the case because the man and woman were friends and had gotten drunk. He also said the judge in the case indicated that he would not sentence the man to more than a year in jail.

* In 1990, a 23-year-old Westminster man met a former girlfriend at his grandparents’ 50th wedding anniversary in Irvine. They both drank heavily. She drove him home and as he got out of the car, he grabbed her car keys and carried her into his apartment, covering her mouth to muffle her screams. Neighbors nonetheless heard her cries for help and called sheriff’s deputies, who walked in as the woman was being sexually assaulted. She rushed to the deputies, telling them that the man tried to choke her and forced her to perform oral sex.

He was charged with six felony counts, including attempted rape by force, kidnaping and false imprisonment. He plead guilty to two counts and faced seven years in prison. He got 365 days in County Jail. The remaining charges were dropped.

* A 27-year-old Anaheim man was arrested in 1991 for raping a former girlfriend. He was charged with four felony counts, including forcible rape and forced oral copulation, and two misdemeanor charges. A probable cause declaration filed by police said “the suspect choked her, held her down, the sex act was completed, and the victim was further assaulted.” The suspect faced four years and eight months in state prison, but got 270 days in County Jail after pleading to sexual battery and false imprisonment by violence.

Middleton said that just before trial, the suspect produced two photographs of the victim, smiling as she performed oral sex on the suspect. Middleton said it destroyed the case and forced the plea.

“When someone gets out early or doesn’t go to prison, it’s just horrendous,” said Barbara West, assistant director of sexual assault victim services for the nonprofit Community Service Programs. “Rape is a pattern of behavior that just does not go away.”

Of all the cases, it is the story of Edward Patrick Morgan Jr. that has triggered the most outrage.

In 1984, Morgan pleaded guilty to two unrelated rape charges, one involving “force and fear” and a second reduced to a statutory rape charge of unlawful sex with a minor, even though force was employed in that rape, too.

In 1991, Morgan was again convicted on a reduced charge of statutory rape after being arrested for raping and beating a 16-year-old La Palma teen-ager. Morgan was originally charged with the more serious crime of “rape by force or fear” as well as “unlawful sexual intercourse with a minor” but pleaded guilty to the lesser charge. The more serious charge was then dropped. As a three-time rapist who had been labeled a habitual offender with two serious felony convictions, he got 16 months in prison for his third rape.

Prosecutors had planned on taking the 1991 case to trial, but shortly before the scheduled court date, Middleton said, they were informed by the victim’s foster mother that the victim had “a credibility problem and embellishes to get her way.” The mother said the victim had been molested by her stepfather, brother, uncle, cousin and a cousin’s friend.

In reviewing the case, Middleton said, prosecutors also found that Morgan and the woman had been drinking, went to a park and laid their heads on each other’s laps, all before the rape occurred. Morgan also dropped her off at her home following the incident.

Despite three rape convictions, Morgan was able to sidestep a conviction in March, 1993, when he was arrested for allegedly raping a 24-year-old woman whom he had handcuffed to a tree. Prosecutors once again saw victim credibility problems, and rather than seeking a fourth conviction that could have put him away for up to a dozen years, they let prison authorities revoke his parole, which put him behind bars for 12 months.

Middleton still defends that decision.

“People just don’t understand,” he said. “If you take away the (recent) murder, it’s not the same case at all. The problem is, you could put this guy away a lot of times and if there’s no murder, he’s going to get out and do the same thing again.”

Some experts who have studied the punishment of rape cases say that prosecutors sometimes must risk losing a case at trial if they believe a suspect deserves a severe sentence.

According to Prof. Gary LaFree, chairman of the University of New Mexico sociology department and one of the nation’s leading authorities on the punishment of rape, the decision to get Morgan’s parole revoked rather than take him to trial on the 1993 case was a mistake because the victim was willing to testify.

“You have to take on some cases, even though you may not win, because they’re important,” LaFree said. “I think it was too bad that (the victim) didn’t get her day in court.”

Those who track rape cases say there are a number of variables that can hinder successful prosecution. When a stranger commits rape, and a witness is willing to come forward, the case is easiest to prosecute. But in cases when a suspected rapist and a victim knew each other beforehand, or when the accused rapist claims that the victim consented to sex--which happens in the vast majority of cases--taking the case to trial becomes more difficult, experts say.

“When there is any type of relationship, whether it be a neighbor or relative or someone else, there is always room for the defendant to have known the activities of the other person, and that raises questions,” Middleton said. “I always tell juries that a woman always has a right to say no, but that doesn’t always fly.”

If a case goes to trial, the victim’s moral character is bound to surface, LaFree said. In his study, he found that if a victim had been drinking or using drugs, or had been having sex out of marriage--even the hint that such behavior had occurred--the possibility of a conviction was less likely.

Cases involving consent--when it’s the word of the accused against that of the accuser--are the most difficult to prove, and in every case, that is how Morgan manipulated the system, avoiding trial time and time again, experts say.

Morgan’s pattern “indicates that you’ve got someone who’s really planning it out because he’s trying to build a consent issue,” LaFree said. “What you’ve got here is a clever offender and it worked with the prosecutor.”

Times staff writers Jodi Wilgoren and Rene Lynch contributed to this report.

* LEGAL GAME: Deck is often stacked against prosecutors, victims. A18

* CASE STUDY: Leading authority discusses his view of O.C. assault. A18

How Rape Prosecution Compares

Among the state’s six most populous counties, Orange County has the worst record for prosecuting rape, catching proportionately fewer rapists, treating the crime less seriously and punishing the smallest percentage of those convicted with prison terms.

*

In the past three years for which figures are available, Orange County police and sheriff’s deputies were tied with those in San Bernardino for making the smallest number of rape arrests per 100 reported rapes. City: Percentage Alameda: 40% San Diego: 37% Los Angeles: 35% Santa Clara: 33% San Bernardino: 31% Orange: 31% *

District attorneys can file rape cases in court either as felonies--generally punishable by three to nine years in prison--or as misdemeanors, punishable by no more than one year in jail, or probation, or both. Here’s how the district attorneys in the state’s six most populous counties filed their rape cases in the three years ended December, 1992, the most recent year for which statistics are available:

Misdemeanors Felonies Alameda 11% 89% San Diego 9% 91% Los Angeles 9% 91% Santa Clara 10% 90% San Bernardino 7% 93% Orange 22% 78%

*

The total percentage of rape cases that were won by prosecutors, either at the lower court or Superior Court level: City: Percentage Alameda: 75% San Diego: 93% Los Angeles: 86% Santa Clara: 86% San Bernardino: 77% Orange: 83% *

Some individuals arrested for rape are sentenced to prison for years after conviction. But many are sentenced to less than a year in the county jail with a period of probation after their release, or are simply put on probation. Here’s how persons arrested for rape were punished after conviction:

Jail and Probation, Prison probation other Alameda 48% 36% 16% San Diego 44% 52% 4% Los Angeles 54% 41% 5% Santa Clara 51% 43% 6% San Bernardino 41% 55% 4% Orange 40% 53% 7%

Sources: FBI Uniform Crime Reports, California Department of Justice, California Law Enforcement Information Center

Researched by DAN WEIKEL / Los Angeles Times