State Appellate Court Wants Explanation of $10-Million Bail

A state appellate court is questioning whether a Ventura County judge violated the constitutional rights of an accused rapist by setting bail at $10 million.

Andrew Luster, a 36-year-old heir to the Max Factor cosmetics fortune, has been in jail for four months on charges that he drugged and sexually assaulted three women at his Mussel Shoals home.

Defense lawyers say that the bail set by Superior Court Judge Art Gutierrez in August is unreasonable. They are asking the 2nd District Court of Appeal to order the bail lowered.

“Obviously it is excessive,” said Santa Monica attorney Roger Jon Diamond, who is representing Luster. “Nobody could make that, maybe Bill Gates and a couple of millionaires. It is just too high for most people, including Mr. Luster.”

So far, Diamond’s argument has been persuasive. The appellate court recently ordered Gutierrez to set bail at a reasonable amount or to explain why not during a Dec. 14 hearing.

That ruling has touched off an unusual legal battle between prosecutors and Luster’s defense team, and opened a debate on the merits of the case weeks before Luster’s preliminary hearing.

Luster is facing 50 criminal counts on allegations that he raped three women after giving them doses of the sedative gamma hydroxybutyric acid, known as GHB. Authorities said he videotaped the sexual assaults while the victims were under the influence of the drug.

Prosecutors contend that Luster, who faces as much as 175 years in prison if he is convicted, is a danger to women and a flight risk who is likely to flee the country if bail is lowered.

Senior Deputy Dist. Atty. Peter Kossoris recently submitted a brief defending Gutierrez’s decision and plans to argue the case before the appellate court later this month.

“Not only is [Luster] a major flight risk, it appears he has the means, incentive and predisposition to flee,” Kossoris wrote. “Under these circumstances, Judge Gutierrez was well within his discretion to set bail at $10 million.”

Kossoris wrote that detectives executing a search warrant at Luster’s home found a passport and financial documents indicating that the defendant has assets valued at more than $31 million.

According to the brief, Luster also bragged during a police interview that he has property and assets all over the world.

“I’m a wealthy guy,” Luster told police, according to the brief. “I can’t screw up. I am not going to lose my money.”

But Diamond said his client does not have the financial means to post $10 million bail and is not a flight risk. Moreover, he said, the current bail amount is so high that it violates Luster’s 8th Amendment protections against excessive bail.

“The idea is to set the bar high enough to make it difficult but not so high it is impossible to reach,” he said.

Diamond said his client would agree to house arrest, electronic monitoring and other conditions if released on bail.

“He is not a flight risk if he is confined to his house with an electronic bracelet and a guard,” Diamond said. “If that were the conditions of his release, what possible interest would the government have to keep him in jail?”