Garcetti Office’s Deal With Shooting Suspect Criticized

In broad daylight a gunman fired from close range at a stranded motorist, hitting him once in the back. The suspect, already with a violent criminal past, was later located in the alleged getaway car. A search of the automobile turned up a loaded semiautomatic pistol under the driver’s seat.

The suspect--Brian Patrick Ballou, 27, known to police as “B-Bone” of the Bity Stone street gang, and to the probation department as a “community terrorist,” a “ticking time bomb” bound to kill or seriously injure someone--is still on the streets of Los Angeles. He was never charged in the shooting and after pleading out to a minor gun possession charge, served just four days in county jail.

Ballou, using politically connected lawyers and his father’s influence with elected officials, received leniency after obtaining extraordinary attention from top levels of Dist. Atty. Gil Garcetti’s office and help from County Supervisor Yvonne Brathwaite Burke, records and interviews show.

Ballou is the son of retired lawyer Robert B. Ballou, a longtime friend of U.S. Rep. Julian Dixon (D-Los Angeles) and Burke.

Although police booked Ballou on a charge of assault with a firearm, which could have carried a prison term of up to 17 years, top district attorney officials rejected a prosecutor’s strong recommendation to file the charge. Instead, they agreed to a plea deal letting Ballou serve just four days in jail and go on probation, despite past probation violations.

The case raises questions about whether others lacking Ballou’s ties would have gotten the same treatment. Although the circumstances do not prove Garcetti directed prosecutors to give Ballou a break, they create the appearance of favoritism.

Ballou’s lawyers deny he shot anyone or is in a gang.

Burke conceded she did not know Ballou’s criminal history when she called Garcetti about the case. She said she called Garcetti because Robert Ballou asked her to. She said he complained that a low-level prosecutor “was intervening” in a plea deal involving his son.

“I asked him [Garcetti] to make an inquiry to see if there was a problem,” Burke said, adding that she has forwarded complaint letters to Garcetti on other cases. “I did not feel it would improperly influence [the outcome].”

Records from Garcetti’s office and interviews show, however, that someone from her office staff called Garcetti’s office before she did and before the plea bargain was challenged. But officials in Garcetti’s office said they could not recall who made the call or when.

Garcetti said through a spokeswoman that he does not remember the call from Burke. She is a close political ally who as one of just five county supervisors votes annually on his office’s budget, staff promotions and his own pay raise.

Burke has received $9,200 in campaign contributions from Ballou’s lawyers, the firm of Ivie, McNeill and Wyatt, between 1992 and 1998. Garcetti has received no political contributions from Ballou’s father or his lawyers.

A spokesperson for Garcetti and senior prosecutors denied that political considerations played a role in how the case was handled. They said probation was appropriate for the gun charge. They said they didn’t file an assault charge because of weaknesses in the evidence.

Ballou’s father and attorney Robert McNeill denied using political influence to seek special favor.

By rejecting the assault charge against Ballou, prosecutors ignored strong evidence, including two witnesses who identified Ballou as a suspect. And by consenting to probation in the gun case, Ballou avoided a possible three-year sentence.

The deal so outraged Deputy Dist. Atty. Mike Grosbard that he denounced it in court and urged his superiors to back out and file charges of attempted murder or assault with a deadly weapon.

“The file has been through the hands of several D.A.’s, including supervisory D.A.’s,” said Grosbard, 44, a 14-year prosecutor, including two with the U.S. Justice Department. “Apparently, nobody said ‘time out, this is wrong, this is an improper disposition.’ This is a truly horrendous representation of the interests of the people.”

And Superior Court Judge Teri Schwartz voiced her concerns when the plea arrangement came to her court last year. Calling Ballou a “menace” to the community, Schwartz said she believed he was involved in the shooting and should be incarcerated.

Minor Case Handled by Top Personnel

Garcetti runs the nation’s largest district attorney’s office. Its 1,000 lawyers prosecute 70,000 felonies and 250,000 misdemeanors annually. Minor cases rarely get top-rank attention. Usually, gun possession cases would not rise above the trial deputy’s level.

But the Ballou case passed through the top ranks of Garcetti’s office up to Special Counsel Richard Llewellyn. He reports directly to Garcetti, serves as his liaison to county supervisors and performed political duties in Garcetti’s 1996 campaign.

The Ballou case started Nov. 6, 1996, when Allen Smith and Michael Moore had car trouble and were awaiting a tow in the Baldwin Hills area. Two men approached them, exchanged words and left, warning that they would return.

Later, Smith saw the two men--both with handguns--coming toward him. As he fled, Smith heard seven shots and was hit in the back.

A homeowner in the area saw the two men with handguns, but had turned away when the shooting started. She saw the men get into a gray Nissan after the shooting. A motorist recorded the license plate of the vehicle.

Three weeks later, police arrested Ballou when they saw him driving the same car with the license plate seen at the shooting. Police found a loaded semiautomatic pistol under the driver’s seat. Smith and the homeowner signed statements identifying him from a photo lineup as the man they saw at the shooting. The homeowner later retracted her statement.

Police booked Ballou on charges of assault with a gun and being a convicted person carrying a firearm.

Most plea-bargained gun cases take two or three months to go through the system. But the Ballou case embarked on a two-year odyssey that carried it from desk to desk in the district attorney’s office, up and down the chain of command.

Garcetti’s office originally filed the case in December 1996 as a gun possession charge. The assault charge was not filed because one witness retracted her identification of Ballou, police said. Deputy Dist. Atty. David Wells entered a plea bargain on the gun charge, agreeing to probation and a jail sentence ranging from nothing beyond the two days Ballou had already served to no more than 90 days.

Wells later said he may have erred in accepting the deal, which he based in part on Ballou’s promise to join the Navy. “In retrospect, I never should have done it,” Wells said.

It was a good deal for Ballou, particularly with his criminal background. He was already in trouble with police from an October 1995 gun case in which he was booked for assault with a deadly weapon for allegedly threatening his cousin with a loaded sawed-off shotgun. Represented by the McNeill firm, he pleaded no contest to a misdemeanor gun possession charge and was put on probation. But he violated that probation twice, receiving a month in jail for each.

One violation came when he smashed open front and back doors of his ex-girlfriend’s apartment during an argument, a vandalism offense that could have put him behind bars for six months. Again, represented by the McNeill firm, Ballou admitted to vandalism and got another probation.

In both the shotgun case and the vandalism case, judges issued protective orders against Ballou. He was warned not to threaten his ex-girlfriend or try to prevent her from testifying.

In the current case, Judge Schwartz said in a March 1997 court hearing that Ballou should get more than 90 days in jail. She warned that if he didn’t keep his promise to join the military, the whole deal would be “null and void” and the case would start over as a felony.

Over the next year, Schwartz was transferred to the Pasadena courthouse and the case went along with her. During that time the military rejected Ballou because of his record, despite Ballou’s father enlisting the help of Rep. Dixon. Dixon said he only checked on the status of an application.

By March 1998, things looked bleak for Ballou. He was staring at a possible long jail sentence.

At this critical juncture Garcetti’s top aides began to take an interest.

A memo in the prosecutor’s file showed that Llewellyn, Garcetti’s special counsel, contacted the office of the district attorney’s Director of Central Operations Mike Carroll about the case well before Grosbard questioned the plea deal.

That memo was later removed from public view by a top district attorney’s office administrator. Jim Falco, the central director’s assistant, acknowledged he took it from the file after receiving a public records request from The Times. The newspaper obtained a copy of the memo elsewhere.

Falco said he took the memo from the file because he initially thought it wasn’t a public record. “In hindsight, it shouldn’t have been removed,” he said.

The memo, sent to Grosbard, stated: “It appears Llewellyn contacted them [central director’s office] regarding a plea taken by Judge Schwartz. . . . Can we find out what happened?”

Llewellyn is not a supervisor who ordinarily reviews decisions of lower-level prosecutors, but he does handle calls from elected officials.

What prompted Llewellyn’s interest is not entirely clear. He said through spokeswoman Sandi Gibbons that he talked with a member of Burke’s staff about the case, though he couldn’t remember when, to whom or the substance of the conversation.

Dan Murphy, head deputy of the Pasadena prosecutors’ office, said Llewellyn called him about the case at about that time, although he did not consider that unusual or wrong.

Supervisor Burke Makes a Call

Despite the case’s political sensitivity, Grosbard, after retrieving the file from the central office, moved aggressively. He reviewed the evidence, learned of Schwartz’s concern with the plea deal, talked to police and prosecutors, and delved into Ballou’s previous criminal history.

On March 31, 1998, Grosbard, with backing from Murphy, told Ballou’s lawyer he opposed the plea bargain and wanted to file assault or attempted murder charges. A few weeks later he filed a motion, which Murphy also backed, asking Schwartz to rescind her sentence.

Ballou’s lawyers appealed to Murphy, and then to Murphy’s boss to stop Grosbard, while Ballou’s father enlisted Burke’s intervention. That’s when Burke said she talked directly to Garcetti.

But Grosbard was not deterred. In a June 1998 hearing before Schwartz, he denounced his own office’s handling of the case.

“This case is fraught with errors by the district attorney’s office,” he said. “I don’t know exactly why, . . . but I do know my office has been contacted by various political entities, including Supervisor Burke.”

He said in an interview that he firmly believed the strong evidence supported more serious charges, although one witness had retracted her identification of Ballou. Grosbard said that in gang cases, prosecutors frequently deal successfully with such witnesses, who may feel intimidated, by confronting them with their statements and questioning the officers who took them.

Judge Schwartz, meanwhile, told Ballou that she was going to set aside the plea bargain because he didn’t enter the military as he had promised.

“Mr. Ballou, I believe, was involved in a shooting,” she said. Quoting the probation report, she said Ballou “has little self-control and a penchant to violence.”

With the plea deal shattered, Schwartz sent the case back to Los Angeles. Garcetti’s Pasadena office sent its file back downtown with a long memo from Grosbard--who was taken off the case.

Garcetti’s top deputies were now on the case, including Carroll. Carroll said they decided not to file assault charges unless they could find the victim’s companion--Michael Moore--to identify Ballou.

They also asked police to locate the victim, Allen Smith, again. But interviews and district attorney investigators’ notes show that police and prosecution investigators quit looking after a brief effort. No effort was made to persuade the reluctant witness to stand by her original statement. And no one tried to locate the motorist who had recorded Ballou’s license plate at the shooting scene.

In a recent interview with The Times, the motorist witness said police never interviewed her again, never took a written statement from her and never asked her to testify.

In late December, prosectors accepted a plea bargain that was even easier on Ballou than the original deal: Ballou was sentenced to four days in jail--time he had already spent in custody awaiting bail--plus a $200 fine and two years’ probation.

In a brief interview, the victim, Smith, declined to comment other than to say he was not told that the district attorney’s office hadn’t charged Ballou, the man he identified, with any crime from the day of the shooting.

Deputy Dist. Atty. Robert Dver said after the final decision that the case was presented to him from higher-ups as a simple gun possession case. He and his supervisor agreed to the deal after concluding the age of the case may have made it difficult to prove.

“It’s a normal disposition for this particular charge,” he said.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Chronology

On Nov. 26, 1996, Los Angeles police booked Brian P. Ballou for assault with a deadly weapon and being a convicted person carrying a firearm. Here are the key events that followed.

Dec. 4, 1996: Dist. Atty. Gil Garcetti’s office rejects assault charge, files gun possession charge, reducing Ballou’s potential prison sentence to three years from a maximum of 17.

January 1997: Deputy Dist. Atty. David Wells agrees to a plea deal: probation and a jail term ranging from the two days Ballou already served in jail to 90 days. Wells later says his decision was a mistake.

March: Superior Court Judge Teri Schwartz in Los Angeles accepts deal, but only if Ballou keeps his promise to join the Navy.

July: Navy rejects Ballou; Schwartz transferred to Pasadena courthouse. Ballou case follows her and prosecutor’s file is sent to Pasadena prosecutors’ office.

September: Schwartz gives Ballou a second chance to join the military.

March 4, 1998: Defense lawyer Robert McNeill gets copy of Marines’ rejection of Ballou.

March 9: Pasadena prosecutors can’t find file for court hearing; it had been sent to downtown Los Angeles headquarters office. Hearing continued.

March 20: Prosecutor’s file still downtown. Pasadena Deputy Dist. Atty. Mike Grosbard gets memo saying Garcetti’s special assistant Richard Llewellyn is asking the D.A. central director’s office questions about the case. Llewellyn says he had received call from a member of County Supervisor Yvonne Brathwaite Burke’s staff, but can’t recall when.

March 27: Grosbard gets prosecutor’s file for the first time.

March 31: Grosbard tells Ballou’s lawyers in court he will contest plea deal and seek charge of attempted murder, which carries a maximum life sentence, or assault with a firearm.

April-June: Supervisor Burke personally calls Garcetti about the case. Ballou’s lawyer calls top-ranking Garcetti lieutenant.

June 22: Schwartz declares Ballou’s plea and sentence null and void, orders case back to Los Angeles Municipal Court. Pasadena prosecutors return file to central office, where other prosecutors handle case.

September: Garcetti’s office again rejects assault or attempted murder charges; files gun possession charge.

Dec. 21, 1998: Ballou allowed to plead no contest and gets probation.