‘A Badge Is No Longer a Shield’

The conviction of three Los Angeles police officers on corruption charges represents a watershed for the city, legal observers said Wednesday, because it signals that jurors here no longer automatically give credence to the men and women who are sworn to serve and protect.

“In Los Angeles, a badge is no longer a shield,” said Santa Monica defense lawyer Gigi Gordon, who has followed the Rampart case closely.

Former federal prosecutor Laurie Levenson, now a professor at Loyola Law School, said questions the jurors gave to the judge to ask of witnesses during the trial showed that they were focused on the credibility of police witnesses with faulty memories.

Credibility of witnesses is an area in which appellate courts generally do not second-guess juries. The fact that the case seems to have turned on credibility is likely to mean that defense lawyers face a difficult job on appeal, both defense- and prosecution-side experts said.

Most of the major evidentiary rulings in the case went in favor of the defense, they added, removing another potential avenue of appeal.

Indeed, many attorneys said they were surprised by the guilty verdicts because of the rulings on evidence, prime among them Judge Jacqueline Connor’s decision barring five civilian witnesses who prosecutors thought would corroborate one of the charges.

Moreover, the prosecutors lost the man who seemed to be their key witness, former LAPD Officer Rafael Perez. Perez has already admitted stealing cocaine from police evidence lockers, framing innocent people and other misconduct.

Shortly before the trial, a former girlfriend, Sonia Flores, alleged to federal investigators that Perez had been involved in murder. She recanted once the case had gone to the jury, but in the meantime, prosecutors felt that they were unable to put Perez on the stand.

“You have to give enormous credit to the prosecutors, who didn’t have a videotape, didn’t have DNA and didn’t have a star witness. They had what you have in an ordinary case--dirty witnesses and inferences,” Levenson said.

Perez’s absence actually may have helped prosecutors, said several experienced attorneys.

Both Gordon and Samuel R. Paz, a veteran civil rights lawyer, said defense lawyers may have “overplayed their hand” in opening statements when they told the jurors they would show that Perez had committed murder--referring to the allegations made by Flores. Because Perez never testified, the defense lawyers had no occasion to question him about those allegations.

“The defense said they would discredit Perez through Sonia Flores, and they didn’t. The jurors probably anticipated that they would hear evidence that would destroy Perez, and they didn’t get it,” Gordon said.

Such “overreaching” erodes credibility with jurors, Paz said.

Moreover, because Perez did not testify, the trial did not become a referendum on his credibility, Levenson said. Rather, the trial focused on the credibility of the officers, who testified in great detail about certain events while claiming faulty memories about others, Levenson and other lawyers said.

“These jurors are much smarter than we give them credit for,” said veteran defense lawyer Andrew Stein, who has represented a number of police officers in the past.

“The questions they asked from the beginning about the faulty memories of officers” subpoenaed to testify for the prosecution “showed that they knew what was going on,” Stein said. “They saw the code of silence unfolding right in front of their eyes.”

But Judge Connor’s willingness to let the jurors pose written questions to the witnesses--filtered through her--drew after-the-fact criticism from defense lawyers.

Attorney Harland W. Braun, who represented defendant Michael Buchanan, said that in asking questions, “the juror ceases to be a judge sitting back and awaiting judgment. They begin posturing. They seemed to be taking positions, and that’s the danger of jurors being allowed to participate in the proceedings.”

Connor permitted the questions as a way of making it easier for jurors to assess testimony. Defense lawyers did not object to the ruling when Connor made it. But after the verdicts, Braun said the decision might be one ground of appeal.

“We thought it would be OK, but then it began to swing out of control,” Braun said. “I’ve had trials where jurors could ask questions before. But usually it’s three or four questions in an entire trial. Here, we had at least 60 or 70. A lot seemed to be from juror No. 3, the foreman.”

Unfortunately for the defense, the fact that attorneys did not object to the ruling at the time it was made may make the issue difficult to pursue on appeal.

Defense lawyer Barry Levin, in his post-verdict comments, raised a second issue for appeal--pretrial publicity. He contended that no code of silence had been proved and that his client, Sgt. Edward Ortiz, and the other two who were convicted were the victims of large-scale media coverage of the Rampart scandal in general and Perez’s allegations in particular.

Again, however, the failure of the defense to ask before the trial for the proceedings to be moved to another jurisdiction may make an appeal on that ground difficult.

Levin now says he regrets not asking for a change of venue. Lawyers for Nino Durden, the suspended LAPD officer who is next in line for trial--in his case on charges of attempted murder--say they will consider seeking a change of venue, said his attorney, Bill H. Seki.

“We’re going to need time to digest and evaluate the effects of this,” said Seki, indicating that he was stunned by the verdicts.

Several legal observers said they thought the fact that the jurors worked their way through the various charges and acquitted one officer, Paul Harper, on all counts, showed that they had not come into the trial with a blanket prejudice.

“I strongly disagree with Barry Levin. It is a very self-serving statement that shows disrespect for the jury,” said USC law professor Erwin Chemerinsky, who prepared a special report on Rampart-related matters for the Los Angeles Police Protective League.

But the more telling point may be that the experienced criminal defense lawyers who represented the four defendants did not feel they needed to ask for the trial to be moved precisely because, until now, Los Angeles juries believed the police, not their accusers.

Gordon said it was the first instance she could remember in which “Los Angeles police officers were tried and convicted for deliberate misconduct to obtain convictions.”

“The prosecutors fear they can never get a conviction in these cases. They are wrong. They should be brave and bring more of these cases,” she said.

Southwestern University School of Law professor Myrna Raeder similarly called the case “a turnaround to the traditional way that jurors look at witnesses.”

“Typically, in the past, they believed law enforcement and disbelieved the gang witnesses; that obviously is no longer true in Los Angeles,” she said.

Seki, who attended part of the four officers’ trial, said he believes that jurors have become more and more skeptical of police, especially LAPD officers, in the last several years.

Jim Fyfe, a former New York City police officer who has testified in several police misconduct cases in Los Angeles, said he has observed the same trend around the country, beginning with a widely publicized Los Angeles case that caused many Americans to question police conduct. “The Rodney King case,” he said, “was a watershed moment.”

“It is a problem for the police in all big cities now,” Fyfe said.

Prosecutors used a well-respected jury consultant, Jo-Ellan Dimitrius, in picking the jury. She said her team did “extensive research dealing with the issue of people’s attitudes toward law enforcement, specifically the LAPD and the Rampart Division.”

Dimitrius added that trials around the country showed that minority jurors were more open to considering charges against the police. Ten of the 12 jurors in the just-completed case are nonwhite, and the jury foreman is an immigrant who recently became a citizen.

Dimitrius declined to comment on specific choices of jurors, but said, “We felt the panel would certainly listen to the case the prosecution was putting on. In these high-profile cases that is the best you can get.”

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Times staff writers Matt Lait and Josh Meyer contributed to this story.