Appeal Justices Want Fair Trials, Not Popularity

We all learned in grade school civics how checks and balances make the system work best.

That’s small consolation if you’re the one getting checked. But then, it’s not always a picnic for the checkers either. Especially when they can smell the tar and feathers getting near.

I’m talking about two recent reversals by the 4th District Court of Appeal in Santa Ana. Heating up the tar in one might be the Anaheim city attorney’s office, the district attorney in the other.

In one case, the appellate justices in their wisdom took the side of a woman convicted of a 1993 double murder after a highly publicized trialj. One victim was a baby killed in his crib. In aother appeals, the justices also gave a break to a bunch of alleged prostitutes. So we’re supposed to be happy about that?

Well, yeah. Just in case someday it’s one of us.

On a 3-0 vote, the justices found that incriminating statements made by double-murder defendant Lisa Peng should not have been admitted at her trial. The justices stated that sheriff’s deputies violated her rights by ignoring her repeated requests to see an attorney during interrogation.

In those statements Peng claimed she had stabbed her husband’s lover in self-defense during an argument. That appears on the surface as quite a ludicrous claim, since it doesn’t explain how the victim’s baby son was killed in his crib in another room.

Fair, Not Perfect

So why would the justices consider it important to keep this truth from the jury?

Justice William Bedsworth, a former prosecutor who voted with the others to reverse Peng’s double-murder conviction, could not discuss it, for ethical reasons. But he did answer my questions about the appellate court’s role.

“It’s not our job to decide whether a defendant is innocent or guilty,” said Bedsworth. “The issue before us is whether the defendant got a fair trial--not a perfect trial, but a fair one. And if we have serious doubts, we have an obligation to say so.”

The second reversal was on a case that never should have taken up any court’s time in the first place.

The city of Anaheim sent undercover police officers into the Sahara Theater, a nude dance bar, to gather incriminating evidence against a handful of lap dancers. If the term is foreign to you, the scantily clad dancers (not nude) sit on the customers’ laps for $10 a song and gyrate to the music. The patrons are not allowed to touch the dancers with their hands, but leering is expected.

To claim that these lap dancers were engaging in prostitution is about as far-fetched as saying that river dancing is a misdemeanor public nuisance. Bouncers who look like descendants of Attila the Hun stand ready at the Sahara to toss out either patrons or dancers who get out of line.

The Almighty ‘Family Image’

If the Anaheim police are so hard up for finding criminals that they’re hitting on Sahara dancers, you have to wonder if the city payroll shouldn’t be pruned a little. I would have taken all those undercover cops and put them out on the street on patrol.

At one point in an earlier adult club case, Anaheim attorneys tried to shut its door by arguing, in part, that the city had a “family image” to maintain. While they are not employing that argument in this case, no one doubts that’s what this is all about.

If the Sahara were in the shadows of Disneyland, maybe you could understand it. But it’s halfway across town. Since I live near Disneyland, I took my own little survey along its row of Harbor Boulevard hotels. I didn’t find a single visitor who had even heard of the Sahara, except as a huge desert.

To me the appellate court didn’t go far enough. But at least we had some justices willing to speak up for common sense and say the city “crossed the line between regulation and criminalization.” (The ruling’s author was Justice Thomas F. Crosby, known for a Shakespearean writing flair. Only Crosby would dare write in a ruling on lap dancing, “That is the rub.”)

Not many in this county will be throwing bouquets at the justices for these two rulings. And the justices had to know that.

I asked David Sills, presiding justice of the 4th District’s Santa Ana branch, whether it didn’t take a lot of soul-searching to reverse a decision handed down in a lower court. These justices were once a part of that court; they’re essentially reversing colleagues and friends.

Sills’ answer: “We take any case that we reverse seriously. But we also take just as seriously the cases we affirm.”

The affirmations don’t get much publicity. We usually take notice of the appellate court only when it’s ruffled our feathers a little.

The justices are assigned appeals to hear as a three-judge panel at random by computer. With the six-justice court two short right now--Sheila Sonenshine and Edward Wallin left this year--it’s a busy place. The court should have eight justices to meet state judicial standards, Sills said.

Last year the Santa Ana branch reviewed more than 900 cases. (Fewer than 5% were reversed.) It’s averaging 594 days to complete a criminal appeal, 985 for a civil case. Both are the highest in the state among appellate courts, Sills said, which is why he’s pushing Gov. Gray Davis’s office for quick appointments to replace Sonenshine and Wallin.

The shortage of justices, Sills emphasized, will not mean any rushes to judgment: “We intend to take as much time as we need to review a case.”

To Bedsworth, what’s remarkable about the process is not how often the judges in the lower court are wrong, but how often they’re right.

“They get six minutes to make a decision, we get six months,” said Bedsworth. “It shouldn’t be surprising that on occasion we’ll decide they didn’t make the right choice.”

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Jerry Hicks’ column appears Monday and Thursday. Readers may reach Hicks by calling (714) 564-1049 or e-mail to jerry.hicks@latimes.com