Deciding Guilt in a Three-Strikes Case : PERSONAL PERSPECTIVE

Ben Sherwood was issues director for Kathleen Brown's Democratic gubernatorial campaign.

On the streets of Los Angeles, where at least one person is shot every hour of every day, five grams of marijuana don't seem like a big deal. But thanks to California's new "three strikes" law, five grams might as well be five tons. So I learned while serving on a jury Downtown.

My trial involved two men charged with selling 5.3 grams of pot--a few pinches worth--to an undercover cop. The prosecution's case was a slam dunk. Jury selection took a day and a half, and the trial ran five days.

With four prior felony convictions, one defendant was looking at his "third strike" for "hooking" his brother up with the undercover cop. He faced 25 years to life. The judge, of course, forbid the defense and prosecution from even using the words three strikes in court. Still, the stakes were clear, whether in ominous allusions by the defense lawyer or in the peculiar circumstance of two men waiting half a year in County Jail to stand trial for selling marijuana that weighed the equivalent of six M&M;'s.

The politics of and arguments for three strikes are compelling, but as I learned in the jury box, it is another matter to watch how this law operates.

For starters, the three-strikes punishment frequently doesn't fit the crime. In California, stealing $100 worth of oranges or avocados is a felony. If it's your third strike, you may be gone for 25 years to life. According to a little noticed report released by the state Legislative Analyst's office, about 70% of all three-strikes cases involve nonviolent or less serious felonies.

In our case, a man faced a life sentence for escorting an undercover cop a few blocks to meet his brother. Sure, it was aiding and abetting, but does it warrant prison stripes forever?

Second, penny-ante three-strikes cases risk busting the state budget. Consider some of the costs of my case. At about $50 a day each, locking up two defendants for six months to await trial costs taxpayers $18,000. For my service, I was paid $36.25, to weigh a $20 pot case.

Third, the law is applied unequally. Across the state, prosecutors and judges seem to be making it up as they go along. In Los Angeles, Dist. Atty. Gil Garcetti has instructed his deputies to file three-strikes cases whenever possible. Our five-gram marijuana case fit the bill, so it went to trial. But in Ventura County, prosecutors refused to charge a twice-convicted robber found with seven marijuana plants growing in his garage. "In theory, it qualified," Kevin J. McGee of the Ventura District Attorney's office explained. "But, practically, it didn't have significance as a three-strikes case."

The judge instructed us neither to pity the defendants nor to consider their possible punishment. The jury room, she added, is not a place to rewrite California's laws. It wasn't an easy instruction to follow, but we tried. In our first straw poll, nine jurors voted to convict. Three "not guilties" were worried about dire consequences the defendants faced.

We reread the judge's instructions about disregarding possible punishments for the crime and within hours, the count was 11-1 guilty. One juror, a Jack Nicholson look-alike, didn't believe the police officers' testimony. "Jack"--that's what we called him--gave no reason for his incredulity. It was a gut thing. "I just can't send someone away on the evidence that's been presented," he said. After a day-and-a-half of deliberations, Jack wouldn't budge. Deadlocked, we informed the judge and she released us.

Downtown, the brothers are still in County Jail. Two public defenders and a prosecutor are preparing for the retrial. And within a few weeks, 12 more jurors--and two alternates--will be summoned. All for five grams of dope.

Although the solution is obvious, fixing California's three-strikes law won't be easy because it is so politically popular. It should be more narrowly focused to give life terms to repeat offenders whose third strikes are serious or violent crimes. The California Criminal Code lists dozens of such crimes. Third strikes should fit the crime.

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