Judge Assails Garcetti for Treating Drug Charge as '3rd Strike' Case

TIMES STAFF WRITER

In an extraordinary verbal assault from the bench, a Superior Court judge accused Dist. Atty. Gil Garcetti of a "gross abuse of prosecutorial discretion" for seeking a 'three strikes' conviction--and the possibility of life imprisonment--against a homeless man accused of possessing three-tenths of a gram of cocaine.

The stinging remarks by Judge David P. Yaffe came moments after a jury acquitted defendant Michael Newhouse on Monday after about an hour's deliberation.

"This case, in the court's opinion, constitutes a gross abuse of prosecutorial discretion," Yaffe told jurors, making it clear that his criticism was intended for Garcetti and not the deputy district attorney, Pamela Gelman, who prosecuted Newhouse.

"This case constituted a refusal by the district attorney to exercise the discretion that is vested in him by law and is part of his job," Yaffe said.

"If he refused to exercise that discretion . . . because he is afraid of the public reaction, then he's a craven coward who is afraid to do his sworn duty," the judge said. "If he refused to exercise his discretion because he's trying to demonstrate that the 'three strikes' law does not work, then he is an arrogant bureaucrat who is trying to make fools of the 70% of Californians who voted for that law."

As in a previous drug case in his court that also ended in acquittal, Yaffe said, defendants faced severe "three strikes" sentences for relatively minor felonies years after earlier convictions.

(Newhouse served three years in prison after pleading guilty in 1986 to two residential burglaries filed under one case, according to his court-appointed attorney Victor Salerno.)

"The evidence in this case," Yaffe said, "was so weak that to prosecute it at all was questionable. To make it a case involving life imprisonment was grotesque."

Yaffe declined to comment Thursday.

While Garcetti could not be reached for comment, his chief deputy Sandy Buttitta disputed Yaffe's contention that the case should not have been filed under the "three strikes" law.

"Frankly, I understand his frustration," Buttitta said. "What I would disagree with however is when he talks about the discretion we do or do not have."

Like most of the state's district attorney's, Buttitta said, Los Angeles' prosecutors file all cases involving repeat felony offenders under the new law, reserving the right to seek a plea agreement before trial. In this case, Buttitta said, she understood that Newhouse was offered--but refused--an agreement that would have meant a six-year sentence.

Salerno said he knew of no such offer.

"I am very disappointed that cases this trivial are prosecuted as 'three strikes' cases," Salerno said. "I think it is a travesty."

His client, released Wednesday after 10 months in jail, could not be reached for comment.

In his remarks, the judge argued that the "three strikes" law requires district attorneys to "make the law work reasonably and responsibly by exercising some discretion."

"This is discretion that he refuses to exercise," Yaffe said.

The consequence, he said, has been devastating for the county's justice system--overwhelming crowded jails, unnecessarily burdening the Sheriff's Department, and leaving prosecutors and public defenders with far more cases than they can handle.

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