Chat Sessions Weigh Fates of Three-Strike Defendants

A 42-year-old man with an extensive criminal record steals $52.41 worth of cough syrup. Does he deserve a sentence of 25 years to life in state prison? Less? How much less?

An 18-year-old gang member with two robbery convictions faces another robbery charge. This time he is accused of using a sawed-off shotgun. Is that worth 25 to life?

A decision must be made.

This is where much of the power lies in the criminal justice system. And it’s on the table at 2:30 p.m. each Wednesday in an 18th-floor Criminal Courts Building conference room.

Come inside the “three-strikes kaffeeklatsch,” where senior deputy district attorneys wrestle with that power--the authority to decide which cases go to trial for the full 25-years-to-life sentence mandated by the three-strikes law and which get an offer of a plea bargain.

By design, it’s an informal hash session, but one at which the fates of real people hang in the balance. Judges and juries later might put their own stamp on these cases--juries can acquit, and judges, under a recent California Supreme Court decision, can opt for leniency. But this is the first crucial step in weighing the potential for redemption.

So each Wednesday afternoon, a dozen senior attorneys with a combined 200 years’ experience squeeze into an office, arrange themselves in a semicircle around a government-issue gray desk and, in a relaxed and sometimes joshing manner, proceed to pass judgment.

“We’re trying to do justice as best as humanly possible,” Bill Hodgman, who oversees the prosecution of all cases at the downtown courts, said in an interview. “In shorthand, we’re trying to do the right thing.”

In truth, the meetings decide nothing. No votes are taken. The pressure remains solely on the head deputies of the three downtown-based trial units--Michael Delaney, Peter Berman and Robert Schirn, all of whom attend the meeting--to handle their cases as each sees fit.

Although each reports to Hodgman, the authority in three-strikes cases is theirs. Often the three men follow the advice of the klatch. But not always.

There were two ground rules when a Times reporter sat in on a recent session: No names of the accused in print, and no certain specifics from the accused’s rap sheet, such as arrests without convictions.

The meeting lasted about 45 minutes--time enough to talk through seven cases:

* A 32-year-old transient is charged with burglarizing a car, taking earrings and a pair of glasses from it. In 1982, he was convicted of assault and robbery. He was also convicted in 1984 of possession of hashish for sale.

The defense lawyer would like to settle the case with a six-year sentence. “Given the age of the priors, going back to ‘82, I’m inclined to do it,” Berman says.

“Sounds fair,” Hodgman says. No one disagrees.

According to court records, the case did settle for six years.

* A 24-year-old gang member with two robbery convictions in 1991 and a third in 1992 is charged with being a felon in possession of a gun after police see him hanging out in a driveway.

“I’m not inclined to strike a strike,” Berman says.

“He’s had three robberies and he only did four years,” says David Traum, who heads the district attorney’s unit that files complaints.

“These were all recent,” Berman goes on. “He’s young. He’s on the street. He doesn’t have any skills, any trades, and it doesn’t appear he has any inclination to go straight. Just hangin’ around with a gun.”

According to court records, this case is awaiting trial.

* A 46-year-old is charged, as Delaney puts it, with being the “maitre d’ ” in the sale of a few rocks of cocaine to undercover officers. When officers asked him where to buy, he pointed them to others on the street.

His two strikes are robberies in 1986 and 1990. His rap sheet is lengthy.

Delaney says he’s willing to consider a plea bargain. “Top it out,” says William Crisci, Berman’s assistant, using prosecutor slang that means to offer a stiff sentence.

Any deal might be wise, says Schirn’s assistant, Jim Falco, because it could be difficult proving the case to a jury. “You hook up to a guy: ‘Where can I get a rock?’

”. . . The jury is not going to convict somebody who says, ‘Go to the alley.’ Anyone who lives in that neighborhood knows, yeah, they sell in the alley.”

“Did he walk the copper over?” Berman says.

“No, he apparently pointed him to the alley,” Delaney says.

“Well, that’s very difficult,” Crisci says. “You can’t make that at trial.”

“You went 180 degrees,” Berman chides Crisci.

“I did, I did,” Crisci admits. “Well, when they said they pointed him [to the drug sellers], I thought they walked him there.”

Falco concludes: “This guy may not want to plead at all. He may want a trial.”

According to court records, the case is indeed awaiting trial.

* A 42-year-old man is charged with stealing two bottles of Scotch from a Westlake market. Convictions include a burglary and robbery stemming from a single 1988 incident.

“This guy doesn’t have the record to justify the 25,” Berman says. “I’d get rid of it for anything you can get.”

According to court records, the case ended in a plea bargain; the defendant got four years in state prison.

* The cough syrup thief.

“Really, it’s a very marginal case,” Delaney says.

“I’m reminded of the time [before three strikes] when these things came up, man, we never saw them because they’d be a misdemeanor,” Crisci says. “I mean, I don’t care how bad his record is. His record is really not that bad. I’ve seen a lot worse. What are you gonna do with two bottles of cough syrup?”

The case ended with a seven-year prison sentence.

* The gang member who allegedly wielded the sawed-off shotgun. His two robbery convictions occurred in 1995.

“This guy’s gonna be hell on wheels for 45 years,” Berman says.

“There’s something callous about this guy,” Hodgman says.

“If he wants to plead to 25 to life,” Crisci says, “it’d be graciously accepted.”

The case is awaiting trial.

* A 40-year-old is busted for two rocks of cocaine; the coke is apparently for his own use, not for sale. He’s been to state prison four times for convictions that include attempted robbery in 1992 and robbery in 1985.

“Typical dilemma,” Schirn says. “Terrible record but current minimal offense.”

“He’s got four [convictions], that’s the problem,” Berman says.

“You’re getting to be a softy, Bob,” Crisci says with a smile.

“I’d give him the full ride,” Berman says.

“This guy, he’s torn the place up for a decade,” Hodgman says, adding: “I’d be disinclined to do something for him.”

According to court records, however, Schirn, the head deputy for his unit, was so inclined. The defendant pleaded guilty to possession of cocaine and was sentenced to four years in state prison.

Later, Schirn said such cases test the courage of one’s convictions: “We do have a responsibility as D.A.’s for public safety. On the other hand, we want to make sure we’re doing the right thing.

“It’s a delicate balance--achieving justice while making sure the public is served.”

* CRIME RATE FALLS

Atty. Gen. Lungren credits law with 25-year low. A22