When the Evidence Is Weak, Why Still Prosecute?

Placing pipe bombs under police cars is a serious crime, and if someone is convicted of doing it, he or she should be punished with a long stint in prison. On the other hand, if a district attorney believes that he cannot convince a jury of a defendant’s guilt, ethically, the prosecution should not go forward.

In prosecuting Kathleen Ann Soliah for allegedly targeting police officers for assassination, Deputy Dist. Atty. Michael A. Latin faces two difficult questions. First, how can he win a 25-year-old conspiracy-to-commit-murder case when his two star witnesses are dead? Second, why is the D.A. prosecuting a case that was weak in 1976, when the alleged crime took place, and is now well past rigor mortis?

Soliah, a former Symbionese Liberation Army (SLA) soldier, is not the first “political radical” to face prosecution for acts committed long ago. But the prosecutions of 1960s radicals have garnered poor results thus far.

Bernadine Dohrn, an alleged conspirator in a series of bombings by the Weather Underground, spent 11 years as a fugitive, four of them on the FBI’s “Ten Most Wanted” list. When authorities caught up with her in 1980, the conspiracy charges against her were dropped, and she pleaded guilty to lesser counts stemming from antiwar protests. The penalty: seven months in jail for refusing to cooperate with a grand jury, a fine of $1,500 and probation.

Silas Trim Bissell, like Dohrn, a member of the Weather Underground, spent 17 years in hiding after he was charged with trying to bomb a University of Washington ROTC building in 1970. He served 17 months in a federal halfway house.

Jeffrey David Powell, a radical charged with clubbing a Chicago policeman in 1970, spent 24 years as a fugitive working as a pea picker, salesman, textbook editor and lobbyist for child-advocacy groups in Illinois and Colorado. He eventually surrendered. Result: a $500 fine and probation.

There is one modest prosecutorial “success.” Katherine Ann Power, an antiwar radical who was the getaway driver in a fatal Boston bank robbery in 1970, went underground and avoided prosecution until 1993. Officer Walter Schroeder, a father of nine, was killed when the robbers fled the bank. For 23 years, Power hid as “Alice Metzinger” in Lebanon, Ore. The case against her had weakened so significantly over time that the prosecuting attorney found it necessary to plea-bargain the murder of a police officer down to manslaughter. With time off for good behavior, Power can make parole by next January.

The sole possible eyewitness to Soliah’s alleged crime, James Marshall, a clerk at a plumbing supply store where the pipe casing might have been purchased, is dead. His grand jury testimony has not been preserved in a form that makes it admissible at a trial. Even if Marshall were alive, his original identification of Soliah (who purportedly accompanied a man into his store) was predicated on a less-than-reliable photographic “six pack” lineup, as opposed to the real thing. Did the Los Angeles Police Department preserve the photo lineup card? Who knows. The photo card itself is inadmissible because Marshall is not “available” to verify the identification.

The prosecution is considering calling Patty Hearst as a people’s witness against Soliah. Setting aside the problematic fact that Hearst is a convicted bank robber, it would seem that she also must be considered a co-conspirator, since her fingerprints and Soliah’s were found in the same San Francisco apartment. Neither had fingerprints found on any pipe bombs, however. Presumably, if Hearst is subpoenaed, her lawyer’s first move will be to demand immunity from prosecution, an offer that Dist. Atty. Gil Garcetti cannot refuse, yet cannot accept. Consider the public outcry if, having received immunity for her testimony, Hearst exonerates Soliah but incriminates herself?

Garcetti faced a somewhat similar situation in the case of former Black Panther leader Elmer “Geronimo” Pratt. When an Orange County Superior Court judge, Everett W. Dickey, effectively ordered a retrial of Pratt’s 30-year-old murder conviction, the district attorney quickly announced that he intended to retry Pratt. After losing an appeal of Dickey’s ruling, Garcetti bowed out, contending that the crime had been committed 30 years ago and that most of the witnesses who could be used in a new trial were dead. So what took Garcetti so long to recognize that he lacked sufficient evidence to convict Pratt in a retrial?

In the case of Soliah, one suspects that both Latin and Garcetti recognize that the police did them no favor by catching her. Losing Soliah in the first place was a police and FBI embarrassment. Stymied for 25 years, the cops announced, with appropriate pride, that “they got their woman.” But having caught her, it does not appear that they can convict her. Latin has admitted in court that his case is highly circumstantial, the evidence old and the memories of witnesses fading. In other words, he has an “old horse that won’t run,” and wagering on its winning would be a foolhardy act.

So why is Garcetti going forward with such a dubious prosecution? Because the cops take it personally. The bombs were found under police cars, although there appears to be no evidence that Soliah put them there. If the pipe bombs had been planted under a civilian’s car, the district attorney would announce that his witnesses had died, the circumstantial evidence was weak and, ethically speaking, the district attorney could not proceed with a losing case.

Soliah, on the other hand, is part of LAPD history. Her arrest was the result of collaboration between Detective Tom King and the FBI. King’s father, Mervin King, was the LAPD captain in charge when police shot it out on national television with the SLA in 1975. King, the younger, decided to pursue family lore to its conclusion, which resulted in Soliah’s capture.

So even though the case has no legs, internal law-enforcement politics require Garcetti and Latin to go forward. Ethically, justifying prosecution based on the current state of the evidence is dubious. On the other hand, this is Hollywood, where we never let “just the facts” get in the way of a good story.