D.A. Agrees to Save Files on Capital Cases

TIMES LEGAL AFFAIRS WRITER

Culminating a lengthy legal battle, the Los Angeles County district attorney's office has agreed to preserve indefinitely all files dealing with death penalty cases or cases that result in life sentences, according to settlement documents obtained Wednesday by The Times.

Dist. Atty. Steve Cooley also agreed to preserve all felony files for at least 25 years and all misdemeanor files for five years.

The settlement is expected to be approved today by Superior Court Judge Kenneth Freeman, who supervised the talks leading to the agreement between the district attorney and two defense lawyer organizations.

"By saving these files, Steve Cooley has preserved the history of crime and punishment in Los Angeles," said defense lawyer Gigi Gordon, one of the lead attorneys in the case. "Instead of destroying them as his predecessor would have done, Mr. Cooley has decided that these files are a library that prosecutors, defense lawyers and the public have a right to have maintained."

Gordon said prosecutors have a need for old files in considering sentence enhancements or determining whether a new crime is similar to an old one. She said defense lawyers need access to old files when investigating possible wrongful convictions or defending against an enhanced sentence. "That is always what this lawsuit has been about. You can't treat these records like they are inconsequential memos destined for a county shredder," Gordon said.

Defense lawyer Robert Berke, one of the attorneys who filed the suit, said: "This settlement really shows Steve Cooley's ability to work with people from different agencies in the criminal justice system."

Cooley said simply, "I'm pleased this case was resolved in a way that protects the history of the court."

Defense lawyers became concerned about records being destroyed when they were trying to review what happened in the jailhouse informant scandal of the late 1980s. Informant Leslie White demonstrated that he could easily fake another inmate's confession and fool police and prosecutors. The district attorney's office moved swiftly to restrict the use of informants who had traded supposed confessions for favors from law enforcement.

In 1990, the California Attorneys for Criminal Justice, the Criminal Courts Bar Assn. of Los Angeles and the Los Angeles County Bar Assn. asked the presiding judge of the Superior Court for a grand jury investigation and requested a court order providing that records of law enforcement agencies not be destroyed.

Then-Presiding Judge Richard Byrne signed an order directing law enforcement agencies in the county to preserve their records. Subsequently, the order was renewed by the agencies that agreed to continue preserving records.

But in December 1994, the district attorney's office, then headed by Gil Garcetti, said that it intended to stop following the order. Numerous hearings were held by Superior Court Judge John Reid, who ultimately concluded in October 1996 that he did not have the authority to order preservation of records.

A month later, the California Attorneys for Criminal Justice, the Criminal Courts Bar Assn. and three individuals sued the district attorney's office, seeking to prevent the office from destroying thousands of old files.

The suit cited several cases in which such files were helpful in proving the innocence of wrongly convicted persons, including Clarence Chance and Benny Powell, who spent more than 17 years in prison and were freed after their murder conviction was overturned in 1993.

In 1996 and 1997, two Los Angeles judges issued injunctions preventing the district attorney from destroying felony files and misdemeanor files pending a full hearing on the suit. Prosecutors had maintained that they were entitled to destroy felony files more than 15 years old and misdemeanor files that are more than 2 years old.

There were several other legal skirmishes in the case over the next three years and, according to Deputy County Counsel Lane R. Brown, it appeared that the litigation would go on for years.

But shortly after Cooley defeated Garcetti in November, he let it be known that he was interested in resolving the matter amicably.

Defense lawyer Marcia Morrissey praised Cooley, saying the "Los Angeles district attorney's office is miles and miles ahead of other district attorneys' offices in their willingness to agree to save files." Still, Morrissey expressed concern that even under this settlement some files might be destroyed.

As of 1997, the estimated yearly storage cost for criminal case files was $535,000.

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