4 Convictions in Slaying Called Into Question

In a stinging 76-page rebuke, a judge Tuesday found that county prosecutors were so determined to convict four street gang members of murdering a police officer that they illegally hid the fact that a key witness was being lavished with extraordinary privileges while in jail, including a cushy cell and private sexual interludes with women in a district attorney’s office suite.

The ruling could mean the four will go free.

Superior Court Judge William Kennedy recommended with “true sadness” that an appeals court set aside the life sentences of four Syndo Mob gang members for the 1988 murder of San Diego Officer Jerry Hartless, 25, because prosecutors failed to tell jurors about the VIP treatment afforded their key witness.

“Contempt for the law in our streets cannot justify disregard of the law in our courts,” wrote Kennedy, a tough-minded former federal prosecutor. “No government can allow any desired law enforcement end to cause [flouting] of basic ethics and the fundamental principles upon which our Constitution rests.”

Kennedy, who presided over two trials in the case, had been asked by the 4th District Court of Appeal to investigate claims by the defendants’ appellate attorneys about the treatment afforded witness Darin Palmer, a fellow gang member of the defendants and an unindicted co-conspirator.

The appeals court is set to hear oral arguments in the case next spring and to decide whether to accept or reject Kennedy’s recommendation involving defendants Darryl Bradshaw, Stacy Butler, Clifton Cunningham and Kevin Standard. Their appellate attorneys want the charges dropped outright and will argue that a retrial would not be fair because witnesses could not be located after a decade.

Several weeks of hearings this fall revealed that Palmer, a career criminal, had been given a private cell with a shower and color television, unlimited free phone calls and numerous visits with his wife and three other women in a plush suite in the district attorney’s office.

Palmer had sex with at least two of the women, impregnating one, according to court testimony. He also took nude pictures of one of the women, which he used to decorate his cell. His phone bill, paid by the district attorney, was more than $5,600 for 1,721 calls. His wife was given money and assistance finding a new place to live.

After the conviction of his fellow gang members, prosecutors reduced Palmer’s sentence in an unrelated robbery case to time served. As a repeat and violent offender, Palmer could have been sent to prison for 25 years to life.

Not only did prosecutors not tell jurors about Palmer’s cushy treatment, they also portrayed him as being held in solitary confinement and testifying only because he was conscience-stricken over his role in the shooting death of a young police officer.

Kennedy, in prose that barely concealed his outrage, wrote that prosecutors portrayed Palmer as “a witness sitting alone in his cell, unattended, remorsefully awaiting judgment, hoping his confession and willingness to testify against truly bad people would in part redeem him. . . . The reality was that Mr. Palmer . . . was allowed the sexual company of women, seemingly any woman he could procure for himself. He was able to run up free phone bills. Absolutely none of this [was] revealed to the defense or the jury.”

State law requires prosecutors to reveal the details of deals made with informants and co-conspirators like Palmer so that jurors can evaluate their credibility.

Even after the 1994 guilty verdict, the district attorney’s office continued to be extraordinarily friendly toward Palmer. When he was arrested for selling drugs, prosecutors declined to press charges.

After a protest by San Diego police officers, the state attorney general stepped into the case, filed charges and won a conviction. Palmer is now serving a life sentence under the three-strikes law.

Kennedy wrote that there is evidence that the district attorney’s office had declined to press charges for fear of embarrassing the office by having to prosecute a onetime witness whose credibility the office had once vouched for.

The district attorney’s office declined to comment on the Kennedy report.

Lynda Romero, the lead appeals attorney, said the public “should be shocked at what happened in this case. As an officer of the court, I’m shocked when prosecutors and investigators break the law. We rely on integrity to make the system work.”

The lead prosecutor in the case, Keith Burt, has since been promoted to the No. 3 spot in the district attorney’s office. He was honored as prosecutor of the year in 1994 by the California District Attorneys Assn. for his successful handling of the Hartless murder case; an earlier trial had resulted in a hung jury.

Kennedy criticized Burt in his report for withholding evidence from the defense and, during the summer hearings, for seeking to distance himself from Palmer and to minimize the importance of Palmer’s testimony.

Hartless, a former Marine, was fatally shot while chasing a drug suspect in an area of San Diego where drug gangs once held sway. There were no eyewitnesses.

Palmer testified in both trials. His testimony in the second trial was more vivid and detailed as he explained how the Syndo Mob had planned an attack on rival gang members when Hartless inadvertently happened upon the scene.

The special treatment for Palmer was revealed after the second trial, when another inmate, having seen the nude pictures, told his lawyer that he would like some of the same privileges.

“Palmer’s assertion [as a witness] that he was receiving no better treatment than anyone else is clearly a lie,” Kennedy wrote. “This was a lie that went uncorrected at trial.”