Lawyer Calls Refiling of Murder Charges Illegal

An Encino lawyer says that he is being targeted illegally by the district attorney’s office, which is refiling murder charges against him that were dismissed by a judge more than a year ago.

Prosecutors counter that the move, while unusual, is certainly legal.

But the case against Gary Miller has always been unusual. He was accused of fraud, conspiracy and murder after a man was killed in a 1992 accident that Miller allegedly staged. Prosecutors argued that Miller should have known that staging accidents would eventually lead to serious injury or death.

A jury found Miller guilty of fraud and conspiracy, but deadlocked on the second-degree murder charge.

Prosecutors said they wanted to retry the case, but Superior Court Judge Harvey Schneider dismissed the murder count, saying it was “highly unlikely” a jury would convict. He sentenced Miller to six years for the other crimes. Prosecutors did not appeal the decision.

This week, 15 months after the dismissal, the district attorney’s office again charged Miller with murder in the death of Jose Luis Lopez Perez, 29.

“This is sort of a power grab by the D.A.’s office to overrule the judge,” said Miller’s lawyer, Harland Braun. “It’s illegal and it’s just very mean. He’s been away in prison for a year now.”

But Deputy Dist. Atty. Leonard Shafer said Schneider’s decision does not stop him from charging Miller with murder again. He said state law allows prosecutors to file a felony twice.

“It’s a two-bite rule,” Shafer said. “We get two bites of the apple.” Usually when a jury deadlocks, the judge will declare a mistrial, allowing the prosecution to decide whether to retry the matter.

But the judge also has the power to dismiss the case “in the interest of justice,” as Schneider did in the Miller case.

Even legal experts disagree over whether prosecutors can refile charges after that.

Stan Goldman, a Loyola criminal law professor, said they can do it only if the case was dismissed before it got to a jury. The “two-bite” law was meant to allow a prosecutor who doesn’t have a case together to drop it, gather more evidence and file it one more time, Goldman said.

It wasn’t meant to allow a retrial after a jury has deliberated and deadlocked and a judge has dismissed the charges, as in the Miller case, he said.

“I’ve been involved in these kinds of cases,” Goldman said. “And all my experience in this area tells me they can’t do it.”

When he was a defense lawyer, Goldman said, he argued successfully that it would be double jeopardy for prosecutors to retry a case that has already been heard by a jury and dismissed.