Rampart Hasn’t Changed How Criminal Courts Do Business

I am the defense lawyer who tried the case of People vs. Javier Ovando in 1997. In the year since Ovando’s conviction was overturned, I have had an opportunity to reflect on what went wrong with that trial and to see whether the justice system learned any lessons from the injustice done to him. Sadly, I see that it hasn’t.

For those unfamiliar with the case, Javier Ovando was shot three times in the chest and head by former LAPD officers Rafael Perez and Nino Durden. He was left a paraplegic for life. The officers then testified falsely in Ovando’s criminal trial, where he was convicted of assault on police officers and given the maximum sentence of more than 23 years in prison. Two and a half years later, Perez, plea bargaining to lessen his own sentence after being caught for stealing cocaine from the LAPD evidence room, confessed to framing Ovando as well as routine thefts, shootings, planting of evidence and framing of other innocent men conducted by himself and other members of the Rampart anti-gang CRASH unit.

In the Ovando case, the prosecuting deputy district attorney disclosed to me on the day we started trial that the police officers were claiming that they left their observation post in a vacant apartment, moved their police vehicle and then jumped over a fence to get back into the building and their post shortly before Ovando burst in with a machine gun. This was crucial information because it closed a large gap in the prosecution’s case, namely how could Ovando have known the cops were hiding in the dark in apartment 407? It was also information that was not contained in the detailed interviews with the LAPD officer-involved-shooting team, not mentioned in any police report or given in testimony at the preliminary hearing.

According to the rules of evidence, this new information should have been given to me 30 days before trial. I objected to the evidence coming in. My motion was denied. I asked the judge for a few days continuance to investigate these new revelations. The deputy district attorney objected, and my motion was denied. At trial, the D.A. objected to my attempts to impeach the officers with this new information. His objections were sustained, and I was not even allowed to cross-examine Perez about the discrepancies between his preliminary hearing testimony and the trial testimony.

Even though the law requires the deputy district attorney to prove his case beyond a reasonable doubt--even if the defense doesn’t put on any witnesses--he was allowed to argue that he should prevail because he put on witnesses and there was no defense. I may have lost the trial under the best of circumstances: Perez and Durden were polished, smooth liars. Nonetheless, it is appalling that despite having no prior convictions, Ovando was sentenced to the maximum by the judge because he “showed no remorse.” It was equally appalling that the sham of a trial withstood appellate review and the conviction was allowed to stand.

Has anything changed in the last year since we’ve become aware that innocent men and women have been convicted of crimes they did not commit? Has the attitude of the courts or the district attorney’s office become more concerned that defendants receive fair trials? I have seen that it hasn’t.

I have seen defense lawyers reveal the name of a newly discovered witness on the eve of trial, only to be reprimanded and have sanctions declared against them. On the other hand, I have seen prosecutors given leeway with information supplied tardily. A recent example is a murder case where the prosecutor turned over the name and statement of a new witness on the eve of trial. Not only was this allowed, but the defense lawyers were not allowed a continuance to investigate the reliability and veracity of the new witness.

An excuse frequently given for denying defense continuances is the “fast track” system for trying felony cases within 60 to 120 days. Each judge has a computerized list of the older cases on his calendar and forces those older cases to trial, whether or not the defense attorney is ready. Attorneys making earnest attempts to find necessary defense witnesses are frequently told that it is unlikely they would find the witness even if a continuance were granted. The judge usually will make these rulings without knowing the case, the defense or the missing witness. Defense lawyers are then “deemed” ready and sent to trial with their objections overruled by irate judges.

One of the problems for the defense is that our clients don’t always tell us everything right away, either because they don’t trust us or because they don’t realize the importance of certain information. Prosecutors, loath to have any complications to an easy conviction, frequently object to any such continuances. And the judges, who tend to defer to the prosecutors, frequently comply.

Last week I attended Loyola Law School’s symposium on the Rampart scandal. Two judges on my panel objected to a portion of law professor Erwin Chemerinsky’s review of the LAPD report on Rampart. This was the part that suggested that judges might be less prone to show a bias toward the prosecution if they were further removed from political pressure by longer terms. These judges strongly denied that judges feel any political pressure to be pro-prosecution or that police officer witnesses are any more likely to be believed, when lying, than a civilian witness.

One of the judges added that the only troubling issue he saw in Rampart was the fact that so many innocent people plead guilty to crimes they did not commit. That judge suggested reexamining so-called West pleas, in which defendants take a plea bargain in order to serve less time but continue to deny actual guilt. What that judge failed to see was that the problem is not the use of West pleas by innocent defendants to crimes they did not commit. The problem is that truly innocent people are afraid to go to trial because they know they don’t have a chance with cops who lie, prosecutors who defer to the cops and judges who defer to the prosecutors. The problem is that innocent people are afraid to go to trial because they know they will be punished with the maximum sentence if they lose.

The real answer, I suggest, is to give defense lawyers adequate time to properly prepare their cases and to stop punishing defendants for going to trial. Ovando was offered 13 years to plead to something he didn’t do. When he lost at trial, he was sentenced to 23 years, four months. Why? Because he showed no remorse for a crime that he did not commit and that did not happen.