Role of Police Unit to Be Issue in Murder Trial

In a second case to come to trial in as many years, a robber whose accomplices were shot to death by members of a controversial LAPD unit faces murder charges.

The aggressive defense for Michael Rochelle Smith will revisit claims that have haunted the Special Investigations Section of the Los Angeles Police Department for a decade: that its members allow violent crimes to occur, then shoot the suspects. Smith’s trial, which includes charges of murder, robbery and assault, is scheduled to begin today in a Van Nuys courtroom.

Claims of misconduct by the SIS, the elite unit that targets some of the city’s most dangerous criminals, have had varied success.

Robert Wayne Cunningham, whose accomplices in a robbery were also shot by an SIS unit, was tried and convicted of their murders after an incident in 1995. Cunningham had tried to invoke allegations of wrongful death in his defense, but they were rejected.

On the other hand, in a civil case in 1992, jurors ruled that SIS officers wrongfully shot three robbers to death and injured another after a holdup of a McDonald’s restaurant in Sunland.

Deputy Public Defender James Coady, who is representing Smith, said the past shootings can only help his client, who was a police informant.

“If it happens enough, pretty soon you have to realize that it’s not an accident,” Coady said. “I’m kind of assuming we have a pretty good chance of beating the murders here.”

Deputy Dist. Atty. Carol Fisch, who is prosecuting the case, brushed aside Coady’s defense.

“How about all the cases where nobody gets killed? If that were true, there’d be 30 to 40 deaths a year,” she said. “The officers really didn’t set it up. That’s where the logic fails. They had no control over where the suspects drove, they just followed them.”

Police, prosecutors and city officials have steadfastly defended the unit, which they say uses successful tactics to apprehend career criminals and minimize the danger to innocent bystanders.

Two prior investigations of the SIS by federal grand juries ended with no action against SIS officers. The panels investigated allegations of civil rights violations and perjury in connection with a 1990 shooting.

“They do God’s work. They are out there getting the worst of the worst,” said Deputy City Atty. Cory Brente, who represents the city in lawsuits against the SIS.

He said the highly specialized unit is called in to watch suspects when traditional detective work fails to make a case.

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The unit does not arrest suspects before they commit crimes because police cannot predict when that will happen, Brente said. The preferable tactic, Brente said, is to wait for the suspects to complete the crime, then get the upper hand by boxing them in a secluded area.

Brente pointed out that an internal LAPD investigation ruled the shootings in the Smith case were justified.

LAPD statistics show that between 1980 and 1995, only 4% of suspects were shot by the unit, half of them fatally.

Critics say the SIS puts victim’s lives in danger, passing up opportunities to arrest suspects for minor crimes or to stop crimes in progress so officers can make a stronger case. Those allegations were first brought to light by a 1988 series in The Times, which also found a relatively high number of shootings and low number of arrests by the unit.

Stephen Yagman, the lawyer who won the Sunland case, goes further.

“The SIS does not have any interest in arresting people,” he said. “The SIS has taken it upon itself to supplant the punitive function of the judicial system.”

The SIS has been involved in 48 shootings and has killed 44 people, all but one of whom was shot in the back, since 1977, Yagman said.

Yagman, who has been ordered to begin a one-year suspension from the practice of law beginning Oct. 17 for overbilling a client, has filed eight lawsuits against the unit, fueling much of the debate around its controversial tactics.

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The most prominent SIS cases stemmed from four shootings:

* Police were cleared of civil rights violations by a federal jury for a 1982 shooting after a Burbank bank robbery. One suspect died in the shooting. The other, his girlfriend, survived and pleaded guilty to robbery and was imprisoned.

* A civil jury found that SIS members had wrongfully shot three robbers to death outside a Sunland McDonald’s after a 1990 robbery. Deciding that the officers’ version of events was implausible, the jury in 1992 ordered the police to pay more than $44,000. A fourth robber who survived the shooting pleaded guilty and was sentenced to 17 years in prison in 1990.

* Two pending lawsuits stem from the 1995 robbery of a Newbury Park liquor store in Ventura County in which one robber was killed and another wounded after trading bullets with detectives. One was filed by the survivor, Cunningham, who is serving four life sentences for the incident that ended in his partner’s death at the hands of police.

* Last year’s robbery at the Classroom bar, for which Smith is facing trial, also resulted in five lawsuits, one by a bystander who was wounded when he was mistaken for Smith and another by a bar patron who alleges that police could have prevented the holdup. The case also sparked yet another federal investigation into civil rights violations by the police. The investigation was requested by the office of U.S. attorney general.

SIS detectives began tailing Smith and others only after he approached police and fingered his partners for a series of armed robberies. He alleged that he was innocent of the earlier robberies but identified the others as suspects.

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In February 1997, after weeks of surveillance, the unit watched Smith and two accomplices case the Classroom bar, then return and rob the patrons and cash register as Smith’s half-sister waited in the getaway car.

While fleeing, they turned into a cul-de-sac, where they were boxed in by four SIS detectives in two unmarked cars.

Police say one of the robbers, Eric Fields, leaned out of the car and aimed his revolver at them. They responded with a barrage of bullets that killed everyone in the car except Smith, who slipped out and ran. He was later found by a police dog.

“Mr. Smith did no provocative act other than avoiding being killed by running,” Coady wrote in court papers. “He did not drive the car, brandish a gun nor initiate the gun battle nor make threatening statements.”

Fisch said the gang decided to commit the robbery and each member is legally responsible for any crimes that resulted, including during the getaway. Smith faces the same charges as if he had initiated the shootout that claimed the lives of Fields, Kirk Deffenbaugh and Kim Benton, Fisch said.

In December, a Van Nuys Municipal Court judge dropped the murder charges against Smith, ruling that the evidence did not support them.

Prosecutors refiled the charges and Superior Court Judge Kathryne Stoltz, who will preside over Smith’s trial, ruled they should stand.