A state appellate court Tuesday overturned the murder convictions of four street gang members for the 1988 slaying of a rookie police officer after finding that overzealous prosecutors hid the fact that a jailhouse informant was granted cushy treatment, including sexual trysts and hundreds of free phone calls.
In a blistering 124-page opinion, the court sent the case against the Lincoln Park Syndo Mob members back to prosecutors for possible retrial while questioning the competence and ethics of the noted gang unit of the San Diego district attorney's office, including trial prosecutor Keith Burt.
Dist. Atty. Paul Pfingst now must decide whether his prosecutors have a reasonable chance of winning a conviction if they retry the case. The controversial informant had been the prosecution's star witness.
A three-judge panel in San Diego found that Deputy Dist. Atty. Burt's failure to disclose the favors afforded to the informant "undermined" the jury's ability to assess the informant's credibility and reach a fair verdict.
Defense attorney Bill Nimmo expressed disappointment that the court did not bar prosecutors from seeking a retrial. The four gang members remain in prison on other convictions.
"If they had done that, I suspect the [public] outrage would have shifted from the defendants and prosecutors to the court," Nimmo said, "and I imagine that had a bearing on the court's decision."
Officer Jerry Hartless, 23, a former Marine and onetime star athlete, was fatally shot as he chased a drug suspect in an alley at midnight.
"The frustrating thing is that Officer Hartless' killers still have not been brought to justice--11 1/2 years later," Police Chief David Bejarano said. "Our thoughts and prayers are with the Hartless family, who still have no closure in Jerry's death."
Burt, the highest-ranking African American in the district attorney's office, was honored as prosecutor of the year by the California District Attorneys Assn. after the 1994 conviction of Stacy Lee Butler, Kevin Standard, Darryl Bradshaw and Clifton Cunningham. All were given life sentences.
A 1991 prosecution of Butler ended with a deadlocked jury amid evidence that police might have planted evidence, committed perjury and conducted illegal searches.
In the second trial, Burt's star witness was a career criminal named Darin Raynard Palmer, who was a member of the street gang but did not testify in the first trial. After the 1994 conviction, Burt was lionized for having "rescued" the case from the legal mess created by sloppy and legally questionable conduct by police.
But in the ensuing months it was revealed that Palmer had received extraordinary treatment while in jail.
Among other things, Palmer was allowed to have sexual encounters and nude photo sessions at the district attorney's office with his wife and another woman, impregnating both. He was given a customized cell and allowed to make 1,700 phone calls at county expense.
When Palmer had problems with sheriff's deputies in the Vista jail, Burt intervened. And when he was sentenced for robbery, Burt asked for leniency.
In exchange, Palmer testified that the four defendants were planning a drug turf raid on a rival gang when Hartless inadvertently came upon them.
Palmer is serving a life sentence for a three-strikes conviction for a drug offense committed after he helped convict the four. The district attorney's office had declined to prosecute Palmer, so the case was handled by state prosecutors.
None of the accommodations afforded Palmer were illegal. But the law says that the prosecution must disclose to the defense what kind of arrangements are made with informants.
The appellate panel found that attorneys and investigators from the district attorney's office at first denied that Palmer had been given inducements to provide testimony.
When those denials were undercut by the discovery of pictures of Palmer and one of the women having sex, the same district attorney's employees attempted to thwart attempts by defense attorneys to learn the details.
The panel said that if jurors had known the benefits that Palmer was receiving for testifying, it is likely they would not have believed his testimony. "Burt admitted . . . that a conviction against [the four defendants] would not have been possible without the jury believing Palmer," the court said.
As the decision by the 4th District Court of Appeal approached, Burt asked to be reassigned from his post as No. 3 prosecutor in the office to a lesser position, which is covered by Civil Service job protection. Pfingst has declined to say whether he plans punitive action against Burt, who is on an extended vacation and could not be reached.