The System Has Become Dysfunctional

The criminal-justice system in Los Angeles is broken. No spin doctor can mask the institutional breakdown at the Los Angeles Police Department. The Rampart scandal could not have occurred without the district attorney and the judiciary looking the other way for years. The city has arrived at this sad juncture because local law-enforcement officials have attempted to evade personal responsibility for the Rampart debacle.

The chief of of police, accusing the district attorney of going too slow in indicting criminal cops, cuts off the county’s top prosecutor from the Police Department’s findings in its internal investigation of corruption. In response, the district attorney says the chief is behaving illegally. The reasons for this near-chaos in the local enforcement of the law have been exposed by the Rampart scandal. Police Chief Bernard C. Parks. Dist. Atty. Gil Garcetti and the Los Angeles criminal bench, collectively, have made decisions that inevitably led us to Rampart.

* The judiciary has turned a blind eye to police perjury. Judges have a constitutional duty to protect defendants’ constitutional rights. The judicial appointments of Govs. George Deukmejian and Pete Wilson have filled the bench with former prosecutors. One result is that it has been 10 years since I heard a judge say, “I do not find the officer’s testimony credible.”

Outside the presence of jurors, the equation has become hauntingly simple. State court judges will accept police fabrications as the “truth” because they do not want “technicalities” interfering with the apprehension and imprisonment of “bad guys.” Those “technicalities” include the 4th, 5th and 6th Amendments of the U.S. Constitution. Defense expectations of fairness have fallen so low that the highest compliment a defense lawyer can pay a judge is, “He gave me a fair trial”--and it is not said with great frequency.

In too many cases, the judge is the de facto prosecutor because the deputy district attorney is either so inexperienced or inept that he or she needs a little help. So the judge steps in and questions the officer testifying, strengthens dubious parts of his or her story and withdraws after bolstering the cop’s testimony. With the singular exception of the court’s most senior jurist, judges never take over cross-examination to hammer at a cop for what seems a questionable story.

This abdication of constitutional oversight and the virtual merger of judge and prosecutor have contributed to an environment in which cops assigned to the anti-gang CRASH unit at Rampart believed they could break the law with impunity. Cops can lie on the stand because they fear no judicial sanction. With the exception of Mark Fuhrman, the detective who testified in the O.J. Simpson double-murder trial, no police officer in modern times has been prosecuted for lying under oath, as long as he lied for the prosecution.

* Deputy district attorneys failed to recognize that LAPD officers were lying in their police reports and testimony. Garcetti’s failure, so far, to indict police officers for criminal conduct is no accident nor part of some great prosecutorial plan to ferret out police corruption. A year ago, a deputy D.A. who believed then-Officer Rafael Perez, whose revelations exposed the police misconduct at Rampart, was lying under oath was scolded by his superior.

Virtually no defense attorney thus believes that Garcetti can or will carry out a comprehensive investigation and prosecution of police criminals. His office lacks the political will to put what may be dozens of rogue cops in prison. Jailing cops--even bad cops--is the antithesis of the office’s belief system. Indeed, the Rampart scandal has caused a crisis of faith at the D.A.’s office. Most deputy district attorneys close their eyes to the possibility that cops may lie to them all the time. But Perez admitted as much.

* The district attorney’s office has fostered a culture of mistrust between prosecutors and defense lawyers. Two decades ago, prosecutors and defenders regularly socialized at Little Joe’s restaurant in Chinatown. In the last 20 years, this critical relationship has deteriorated, especially in L.A. County. Worse, deputy district attorneys are trained and encouraged to have a near-paranoid distrust of defense counsel. Prosecutors who have left Garcetti’s office to join the defense ranks are considered as having “gone over to the dark side.”

Defense attorneys have access to the one eyewitness whose version often varies substantially from the officer’s: the defendant. But prosecutors simply cannot comprehend that a defendant could be telling the truth.

This cultural rift was inevitable. Told their officers have credibility problems, young prosecutors refuse to listen. Worse, they refuse to investigate misconduct allegations when professional ethics require them to do so. Worse still, some “suggest” to an officer how to fortify a weak case, as if the truth had the elasticity of Gumby. This disastrous policy of win at all costs, fostered under the last three district attorneys, shocks not only defense lawyers, but also prosecutors across the street in the federal courts.

* Both the Police Department and the district attorney’s office operate in a culture that institutionalizes racial and ethnic prejudice against minority defendants. We have learned that the police chief’s race makes no difference, because, ultimately, “all cops are blue.” At Rampart, Latino cop “gangs” challenged Latino “homie” gangs to fight over “who owns the hood.”

Yet, skin color continues to define how a detainee is treated, and often how he is prosecuted. Nothing has changed at LAPD, except the deteriorating quality of its public relations. As for Garcetti’s office, deputy prosecutors regard the daily parade of black and brown men into court as nothing more than what playwright Bertolt Brecht described as “the usual men, in the usual place, in the defendant’s box.”

* The evisceration of the defense bar. Few defense attorneys are surprised by the corruption at Rampart. After all, defendants have been telling them about it for years. Complaining to a judge is a useless endeavor, and filing a complaint with LAPD internal affairs a waste of time. Defense claims of perjury and abuse are quickly brushed aside as “sour grapes.” Defenders who persist in pointing out irregularities become known as “troublemakers” in the judges’ lunchrooms. Prosecutors are never troublemakers. It is ironic that the people with the greatest stake in the truth, defense lawyers and their imprisoned clients, have been cut completely out of the loop.

* The independence of the LAPD. The original reasons to insulate the Police Department from political and civilian oversight have been overtaken by the scandal at Rampart. Independence would prevent police corruption through political meddling. But it has not lived up to its billing. Although the LAPD’s Board of Inquiry report on the causes of the Rampart scandal is commendable, it is no substitute for an independent, outside inquiry. For the primal purpose of the LAPD is to preserve and protect the LAPD. The department loathes civilian interference. One of the chief’s first goals was to rid the department of Kathy Mader, the inspector general of the Police Commission. In getting his way, Parks removed the only source of independent information to the commission.

To put the L.A.’s criminal-justice system back together, the LAPD needs a civilian police-review board. The district attorney needs to hire a substantial number of defense attorneys to break up the “us versus them” culture in his office. As for the judiciary, there are 18 vacancies on the Superior Court. To restore effective constitutional governance of the police, Gov. Gray Davis must choose judges who are independent and fearless enough to look a cop in the eye and say, “I don’t believe you.” *