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Joseph Jones had quite a choice. He could plead guilty to selling drugs he had not sold and serve 8yrs in prison. Or he could risk being convicted at trial and, as a three-time loser, be sentenced to life.

Ex-felon Miguel Hernandez was offered a similarly absurd "break." He could give up 16 months of his life by pleading guilty to possessing a weapon he had never had. Or he could demand a trial and face the possibility of four or more years in prison. In offering criminal defendants these kinds of Hobson's choices, prosecutors and judges did not set out to induce innocent men to plead guilty, although that is what they did. The prosecutors and judges merely accepted the word of Los Angeles police that the men were guilty. That the police turned out to be lying, and that victims of the Rampart police scandal wound up pleading guilty to crimes they did not commit, shows the extent to which police hold people's whole worlds in their hands. The still-unfolding scandal's scorecard: Convictions have been overturned for 10 defendants who pleaded guilty and for another who was found guilty at trial. More reversals are expected. The main job of the criminal courts, separating the innocent from the guilty, is difficult under the best of circumstances. When the police lie, it becomes all but impossible. Prosecutors are almost wholly dependent on police for the information they use to bring cases. And because of a popular anti-crime crackdown in California that has lasted more than 15 years, prosecutors more than ever run the state's criminal courts. Criminal defense lawyers these days are rarely in a position even to test in court the strength of information that the police have gathered and that prosecutors present. Anti-crime ballot initiatives have gutted the key vehicle for such tests--preliminary hearings. Eyewitnesses for the prosecution no longer have to testify at these hearings, held to determine whether there is sufficient evidence to order an accused person to stand trial. So their recollections cannot be probed by defense counsel. Instead, police officers have been empowered to stand in for them and give their accounts secondhand.

Judge orders release of ex-L.A. cop 7.24.01   AP Los Angeles   The disgraced former officer who broke open the worst police corruption scandal in the city's history was ordered freed by a judge who said Rafael Perez has kept up his end of a deal to help investigators. Under terms of Superior Court Judge Robert J. Perry's order, Perez was to be released no later than Tuesday. "Mr. Perez did cooperate, in the court's view. He did live up to his end of the bargain,'' Perry said Monday. California Dept of Corrections spokesman Russ Heimerich said Monday evening that Perez, 33, had been released from a county jail and placed in state custody pending his release. "He will be released on parole pursuant to the judge's order,'' he said. "But when and where, I don't know.'' Often in high-profile cases officials won't announce an inmate's release until afterward, Heimerich added. Hours after Perry's ruling, Deputy District Attorney William Hodgman wrote to the state's 2nd District Court of Appeal asking that Perez's release be delayed while prosecutors appealed. The request was rejected. Perez, who was arrested on 8.25.98 for stealing $1 million worth of cocaine from an evidence room, once faced as much as 12 years in prison. He agreed in Sept. 1999 to plead guilty and to cooperate with investigators in exchange for a lighter sentence. In Feb. 2000 he was sentenced to 5 years in prison. His cooperation with authorities ignited an extensive internal investigation into wrongdoing by anti-gang officers in the Police Dept's Rampart station. The dept has overhauled its gang-fighting program amid Perez's allegations that some officers in the unit routinely beat, robbed, framed and sometimes shot suspects without provocation. More than 100 convictions in cases tainted by his allegations have been set aside and the city has paid millions of dollars to settle dozens of lawsuits, with officials estimating the figure could eventually reach $125 million. 65 officers have faced or will face administrative action resulting from the probe, dept spokesman Lt. Horace Frank said. Perez, who has admitted involvement in planting a rifle on a man who was paralyzed in a police shooting, never testified in court against any officers.

While this restriction and others hamper the defense's ability to gauge its chances of prevailing at trial, increasingly harsh punishments created by other anti-crime initiatives raise the stakes of going to trial.
Prosecutors hold these harsh punishments over the heads of defendants as negotiating tools to get them to plead guilty at an early stage of proceedings--often before any meaningful defense investigation has taken place.

The Rampart cases stand as a reminder that this kind of efficiency has its price. In the since-overturned Rampart cases, prosecutors and judges, most of whom are former prosecutors, did what they routinely do: They offered discounts on punishment to those who agreed to plead guilty without putting the courts to the time and expense of conducting trials.
The defendants did what defendants typically do: They took the deals. They evidently believed they would be convicted anyway if they stood trial. No one would take their word against that of the police. And courts would then punish them more harshly, saying they deserved it in part because they had not shown remorse.

The big question is: Do the police regularly lie?
In the Rampart cases, it is now alleged, they told whoppers. Some police administrators & legal commentators believe that police often tell relatively small lies, mostly to justify unlawful searches that turn up illegal weapons or drugs. These kinds of lies typically involve claims that officers saw a defendant drop drugs on the ground when an officer actually turned them up in a search of the defendant, or, more egregiously, claims that an officer saw a defendant drop drugs that the officer cannot actually link to the defendant, because he merely saw the drugs lying near the defendant and inferred that they belonged to him.
Joseph McNamara, former chief of police in Kansas City, Mo., and San Jose, has said he believes hundreds of thousands of police officers tell those kinds of lies in court every year to convict people they are convinced are guilty and who would otherwise go free. Conservative U.S. 9th Circuit Court of Appeals Judge Alex Kozinski has called this kind of police perjury widespread and described it as "an open secret long shared by prosecutors, defense lawyers and judges." Not everyone agrees.

Los Angeles County Dist. Atty. Gil Garcetti said, "I've been a prosecutor for 31 years. I've handled … thousands of cases. And yes, on occasion, we've had cause to question the veracity of a police officer … [But] there have been so few of those cases." When they arise, he said, they are not tolerated. A prosecutor who suspects an officer is lying, Garcetti said, is encouraged to relay his suspicion to the officer's department. But Garcetti could cite only one case that led to a prosecution for police perjury.
Los Angeles Superior Court Judge James Albracht, a former deputy district attorney, thinks he knows why. There is tremendous pressure on prosecutors and judges to ignore police lying, he said. A young prosecutor who challenges a veteran cop's claim is "dead meat," said Albracht. "They'll complain to your supervisor: 'You've got some kind of Jerry Brown liberal here.' " Judges are in a pickle too, said Albracht, who was appointed by Brown. The district attorney's office, which prosecutes all felony cases in the county, can, and does on rare occasions, boycott a judge it does not like by filing peremptory challenges against him in every case.

"If you called the police liars, they'd 'paper' you," the judge said. Then, "instead of working on a nice assignment near your home, they [your fellow judges] send you downtown or to juvenile or dependency court, where they send the slugs." Few in the legal system believe that police routinely engage in the kinds of extreme lies alleged in the Rampart scandal. These were not lies to justify how evidence was found or linked to a defendant. They were lies about whether evidence was found at all.
Former LAPD officer-turned-informant Rafael Perez, the scandal's central figure, says he and his colleagues planted illegal guns and drugs on suspects and, in at least one case, deliberately shot a gang member, then framed him for trying to kill them. The alleged audacity of Perez and his colleagues came to light not because of checks and balances in the criminal justice system, that is, not because some judges, prosecutors, defense lawyers or police colleagues had moments of spectacular insights, courage or contrition, but only because Perez was himself caught stealing cocaine from a police locker and confessed to win himself a deal.

The sheer power of his lies, which would presumably have gone undetected if he had not admitted them, can be seen in the case of Samuel Bailey, whom Perez now says he framed for the crime of being an ex-felon with a gun. Bailey was a gang member in his early 30s who had been in trouble most of his adult life. He encountered Perez outside a gang party that Perez and other Rampart anti-gang officers were raiding. Perez claimed on the witness stand at Bailey's preliminary hearing that he saw Bailey when he pulled up to the party and recognized him as a gang member on parole. He said that he noticed Bailey had his right hand in his waistband.
He said he told Bailey to put his hands up. Bailey, he said, instead pulled a handgun from his waistband and dropped it. Bailey just listened at the defense table as Perez perjured himself about the gun. Then the judge asked Perez how he had known that Bailey was a gang member.

"I have interviewed him 15, 20 times," began Perez. "I have … " It was too much for Bailey. He erupted in profanity and called Perez a liar. "You're a lying ----, you know that? Sorry, Your Honor." The judge quickly reminded him where he stood. "Let me explain something," he said. "You have a right to speak only to your lawyer, and very quietly, and if you do that again, there will be a gag in your mouth." Bailey seemed to get it. He pleaded guilty soon afterward to possessing the gun that Perez now says he planted on him in return for a sentence of 2 years 8 months in prison.
It was more or less the same story with Joseph Jones and Miguel Hernandez. Hernandez had been standing in the mouth of an alley when Perez and his partner, Officer Nino Durden, drove by. Perez's partner claimed he locked eyes with him and Hernandez responded by pulling a gun from his waistband and dropping it. Perez now says Hernandez did not have a gun; it was a plant. But Hernandez, who had a long record, took a deal at his very first Superior Court appearance, pleading guilty in return for a 16-month term. Jones was accused by Perez and Durden of being the middleman in their undercover purchase of $20 worth of rock cocaine in the hallway of a residential hotel. Perez now says that Jones actually refused to sell them the cocaine.
Jones was in a tough spot. Because he had been convicted of roughing up and robbing 2 pedestrians at knifepoint in 1992, the district attorney's office could have prosecuted him for a third strike. Conviction would have resulted in a life term. When prosecutors offered instead to let him plead guilty to a second strike, he took the deal. "All right, this is No. 27," said Superior Court Judge John Reid, a former prosecutor, referring to Jones' place on the calendar. "You're Joseph Jones?" "Yes, sir." No. 27 went along with the program and accepted an 8 year sentence for a crime Perez now says he did not commit.

guilty pleas for the sake of expediency
Criminal justice is administered so inexactly that courts regularly allow people to plead guilty while claiming they are innocent. It keeps the system moving. It is deemed kosher as long as the defendants say that they believe it is in their interests to plead guilty, that heir lawyers concur and that a judge believes there is strong evidence that they are, in fact, guilty. The "strong evidence" can be as little as a secondhand account of a police report.
In Los Angeles courts, the common way of signaling that such a hybrid plea is taking place is to cite an old California Supreme Court decision known as People vs. West, which said it was permissible in the interests of justice for a drug defendant to plead guilty to another charge that didn't quite fit his crime to avoid a mandatory state sentence. "Counsel, is this a People vs. West plea or is this a plea because the defendant in truth and in fact is guilty?" a deputy district attorney asked a defense lawyer in one of the Rampart cases.

Oscar Peralta, now believed by the district attorney's office to have been another victim of the police scandal, took the People vs. West route, pleading to charges that he assaulted police with a gun. His case, which featured aggressive defense representation, illustrates the willingness of some judges & prosecutors to vest police with extra credibility, despite independent evidence suggesting they may be lying.
Peralta was an 18th Street gang member. He was shot by one of Perez's colleagues in the anti-gang unit in the Rampart Division, home of some of the city's most intense gang wars. Then he was charged with an assault on police that purportedly led to his being shot. Perez has since said that the shooting was "dirty," and prosecutors have said they believe Peralta was the victim of a police crime. The circumstances were these:

There had been a drive-by shooting at a building in the neighborhood the night before. 218th St gang members had been killed.
Perez and his colleagues say they got a complaint that armed 18th Street gang members were gathering at the same building the next night. They decided to arrest any who appeared bent on retaliation.
Theirs was a military-style operation. Two pairs of officers entered the building from the rear. Their job was to sweep the four-story apartment house from the top down.
One pair took the fourth and third floors, the other took the second and first. Their plan called for them to arrest any armed gang members they encountered inside, then exit through the building's front door, where they would drive a group of gang members hanging around a makeshift memorial into the hands of other officers converging from the street.

Things did not go as planned. For some reason, Peralta, who had been among those outside, entered the building's front door at a rapid gait. Officer Michael Montoya, then on the first floor, testified that an officer in an observation post in a nearby building radioed him a warning that Peralta had a gun. Montoya said he could see that for himself. He testified that he could see the defendant open the front door carrying a gun in his right hand--an assertion that would later be contradicted by a civilian witness.
Montoya said he commanded the defendant to stop and put his hands up, but that Peralta looked him in the eye and kept on going. Peralta headed up some stairs, then turned, Montoya said, and pointed his gun at the officer-- another assertion that would later be contradicted. "I seen his finger on the trigger and when I seen the weapon, the weapon was cocked," Montoya said. The officer said he fired a single blast from his shotgun. The blast wounded Peralta and another man who was higher up on the stairs. That man had been coming down, taking his small children home from a prayer vigil in the fourth-floor apartment of the mother of one of the gang members who had been killed the night before.

On the fourth floor, there was more trouble. Officer Brian Hewitt said he had already encountered and handcuffed one armed gang member. When he heard a shot, he peered through the window of a closed fire door and saw a panicked crowd, evidently those who had been attending the prayer vigil, confronted by another armed gang member. In an account that would later be challenged by that gang member's family, Hewitt said the gang member then "pointed the gun at me." Hewitt said he chased the gang member down to the third floor, firing at him repeatedly at close range and hitting him once. On the third floor, Hewitt said, the wounded man pointed his gun at Hewitt's partner, who shot again at the man, but missed. Then the man ran down to the second floor, where Montoya's partner claimed the man also pointed his gun at him.
Montoya's partner shot the man again. The wounded man, Juan Saldana, died.

Those skeptical of the official account would later note that the weapon that police say was Saldana's, and that he allegedly pointed at them at least three times while police fired at least 10 shots at him, was fully loaded, with a bullet in the chamber. But it had not been fired.
Likewise, the gun that police say was Peralta's, and that he allegedly pointed at Montoya, was also fully loaded, with a bullet in the chamber. But it had not been fired either. At the time, the district attorney's office did not seem to think this was odd. Prosecutors threw the book at Peralta. They charged him not only with assaulting police officers by pointing a gun at them, but also with Saldana's murder, on the theory that his having pointed a gun at Montoya set off the chain of events that led to Saldana's being shot.

Defense atty Bruce Brown was assigned the case. Brown is a former deputy public defender who went into practice for himself and now takes court-assigned work at $50 an hour defending indigents whom public defender offices can't help. He met his client in a court lockup. "He was bandaged. He was in pain physically, and he was complaining because of having been shot by police for no reason," Brown said. "He maintained his innocence."
Defense attorneys say innocence is the initial story of most clients. A former colleague of Brown, Alternate Deputy Public Defender Michael Russo, said, "A majority of the time people tell you, 'I didn't do it. I didn't have the dope. I didn't have the gun. I didn't shoot that guy, steal that wallet.' The challenge is to try to act the same every time you hear that and go out and investigate it." The challenge frequently is not met. Public defender officials say their lawyers request investigations in only one case out of three.

Brown asked the court to appoint a private investigator he uses, compensated at $25 an hour, and together they headed off to check out the apartment house that was the scene of the crime. Brown said he came away feeling that something about the police story was not right. His investigator located the bystander who had been wounded coming downstairs and subpoenaed him. After police testified at the preliminary hearing, the defense called the wounded man, Salvador Albarenga Ochoa, who testified that he had seen the defendant running up the stairs. He estimated that he and the defendant had been four to six feet apart.
"Did you see whether or not he had a gun in his hand?" he was asked.
"No, I didn't see him have any weapon, no."

Albarenga said that he saw police raise their weapons at the defendant and that he heard the shot that felled the defendant and himself. "Did you ever see [the defendant] point a gun at anybody?" he was asked.
"No, no, I honestly did not."
Municipal Judge Kathleen Kennedy-Powell, a former prosecutor, dismissed the murder charge, saying she could see no basis for it. But she ordered Peralta to stand trial on the assault charge, declaring, "I don't think necessarily Mr. Albarenga was in a position to know what occurred."
As the defendant's trial date approached, the prosecution offered Peralta a 9 year sentence in return for a guilty plea. He turned it down. The trial was scheduled for Christmas week, 1996. Prosecutors said their key witness, Officer Montoya, was unavailable. They dismissed the case, quickly refiled it and it was set for a preliminary hearing again.

This time, defense lawyer Brown did not get a chance to shake Montoya's story because Montoya did not testify. The only police witness was an officer who had been in the observation post across the street from the building, who testified secondhand about what Montoya had told him.
But this time the defense had another witness, who contradicted Montoya's account. A 16-year-old high school student not affiliated with any gang said he had been standing just inside the apt bldg, holding open the front door when the defendant came in.
The defendant, he said, was not holding a gun. The boy said he saw police run after the defendant as the defendant climbed the stairs.

"They aimed at him," he said. "They raised a rifle that one of them had and, when he was going up the steps, they shot."
"And could you see what [the defendant] was doing just before the officer did that?"
"He was walking up."
"Before he was shot, did you ever see [the defendant] point a gun at the police officer who shot him?"
"No."
Judge Kennedy-Powell interrupted the lawyers' questioning to ask clarifying questions of her own.
"When you were looking at the officer with the shotgun raised to the right shoulder, at that moment could you see [the defendant]?" she asked.
"Yes," the witness replied. "He was going up."
"You could see both the officer and [the defendant] at the same time?" the judge asked again.
"Yes."

Brown was disgusted. "You have a bench appointed by a series of Republican governors. That's the systemic issue," he said. "They are unwilling in large part to dispense with criminal proceedings that ought to terminate at an early stage. They are one step short of rubber stamps."
Thanks to judicial appointments by a series of conservative Republican governors, California judges more often than not are former prosecutors. Jean Guccione, a reporter for the legal newspaper the Los Angeles Daily Journal, has found that 56% of Gov. Pete Wilson's appointees and 65% of Gov. Geo. Deukmejian's served as prosecutors. Deukmejian alone appointed more than 1,000 judges, or 55% of the state's bench, including Kennedy-Powell.
Only 7% of Wilson and Deukmejian appointees had experience as public defenders. The rest were civil lawyers.

Brown did not think that prosecutors would ever agree to dismiss the case against Peralta, because a dismissal would offend police and might harm police chances to prevail in any civil litigation that arose from the shootings.
So he urged his client to take a deal if a good one was offered.
"When I talk to a client who is denying guilt about accepting a plea, I talk as if they're in the process of buying insurance, a form of protection," Brown said. "You don't want to wind up … getting convicted [at trial] when you're truly innocent and getting a ridiculously long sentence."

Months went by. Finally, prosecutors offered Peralta a deal too good to refuse. They promised they would let him go if he would just say he did it.
Peralta pleaded no contest to assault and guilty (via People vs. West) to having been armed. He was placed on probation. He had spent 305 days in jail. Before accepting the deal, Superior Court Judge Robert O'Neill, a Wilson appointee and former prosecutor, wanted to make sure of one thing, that it was OK with the police. "I understand the basis for this disposition is the fact that there are factual difficulties," the judge said. "Indeed, this disposition has been run past the agency that employed the individuals in this matter, is that correct?" Assured that the answer was yes, he let it go through.

framed man pays price for not pleading guilty
Javier Francisco Ovando became the Rampart scandal's object lesson in why an innocent man should consider pleading guilty.
He met his lawyer for the first time at his preliminary hearing, when ambulance attendants wheeled him into the courthouse on a gurney.
At the time, the lawyer had 27 other clients, all facing felony charges. Ovando was the only one who had been shot in the head. He told the lawyer that he was innocent. But he also told her, she has said in court, that he did not remember what had happened. That was a big problem for the defense. It left no one to rebut the police.
Officer Perez and his partner, Durden, testified without contradiction that Ovando, armed with a machine gun with a filed-off serial number, had invaded the darkened fourth-floor apartment that they were using as a clandestine post from which to observe gang activity on the street below.
There was a "large bang" as the apartment door was forced open, Perez testified; then light from a brightly lit hallway spilled in, along with the intruder. As Perez and Durden reacted by shining their flashlights on Ovando, they said they realized he was pointing his gun at Durden. Perez said that he warned Durden by shouting, "Gun, gun, gun!" and that Durden yelled, "Police officer! Drop it!"
When Ovando didn't, Perez and Durden both testified, they shot him.

The prosecution's theory was that Ovando had gone to the apartment on behalf of the 18th St gang, which he belonged to, to assassinate nettlesome police. But to Ovando's lawyer, Deputy Public Defender Tamar Toister, the prosecution's theory did not comport with the police account. For one thing, if Ovando had intended to ambush the police, why would he have announced his presence with a loud bang? Why would he have walked into a darkened room from a brightly lit hallway, a transition that would have required time for his eyes to adjust? If he really were a gang assassin, wouldn't it have made more sense for him to have lured the police from the darkened room into the brightly lit hall? And why didn't he fire his weapon or at least put a bullet in the firing chamber? It was loaded, but the chamber was empty.
Although Toister had doubts about some aspects of the police account, she said she never envisioned the scenario that Perez now describes. She could not imagine that, as Perez now says happened, police would have repeatedly shot an unarmed man and planted a machine gun on him to make him look like a would-be assassin.

At the time of trial, Toister believed that her client had probably blundered, armed, into what he believed had been an empty apartment and, to his surprise, encountered police who became frightened and shot him. But she also thought that the police had probably made some kind of a mistake in the shooting and were trying to cover it up. She did not know what kind of mistake. But her suspicions were aroused when she noticed at trial that they seemed to be going out of their way to embellish their accounts to emphasize how difficult it would have been for Ovando to have just walked in.
The officers had previously described the building to police investigators, assigned to look into the officer-involved shooting, as "primarily vacant" during remodeling. Toister found that description consistent with Ovando's contention that a friend of his lived there and that he sometimes visited the friend. But at trial, the police described the building as empty. They said they had had to vault a 10ft fence to get in.

Without much of a defense, Toister tried to exploit these new claims as contradictions. But Judge Stephen Czuleger, a Deukmejian appointee and former federal prosecutor, ruled that she could not. Perhaps, he suggested, the officers had mentioned the new details to the investigators, but the investigators had not written them down. Toister protested that the judge's ruling was unfair. She had asked for the officers' tape-recorded statements as part of the pretrial discovery process. But another judge who had handled motions in the case had not ordered the Police Department to turn over the recordings. All Toister had was the investigators' summaries. Toister had not made a fuss about this until Czuleger prevented her from using them to impeach the officers. "Judge," she then said, "I'm at a loss. … This is the only report I have." But she neither pushed the issue nor demanded a mistrial, figuring, she said, that it would be pointless because Czuleger would not bend. She tried an alternate tactic, questioning Officer Perez about why he had not mentioned the existence of a fence at Ovando's preliminary hearing. But in response to a prosecution objection that her question was irrelevant, Czuleger cut her off again. "Your Honor," she said, "This is very relevant." "Counsel," he told her, "If I need help, I'll let you know." "I'm just arguing," she said. "I don't allow speaking objections. . . . Put a question." "I'm sorry," Toister tried again. "I must be heard at sidebar." But the judge declined to hear her, and told her again to ask the witness a question. A little later, Toister asked for a delay to send an investigator to speak with the building manager. But the prosecutor objected again, noting that she could have done that earlier. "Your Honor, please," said Toister. "It was not until this [trial] started that I had any inkling there would be [an] issue whether or not the building was locked." Backed into a corner, Toister disclosed to the judge that she had not done much of an investigation. She did not know where her own client lived. She had not even been to the building where the crime he was accused of committing had taken place. "I asked [my] investigator to look at the apartment," she said. "She told me we could not." In an interview, Toister said she still does not know why her investigator could not get in. She also said, in response to a question, that it did not occur to her to send her investigator back with a request to just nose around. "We rarely do that," she said. "Our investigators don't like doing that. They like to have a [specific person to go see.]" In this case, Toister said, the only person she asked her investigator to interview was a potentially critical defense witness. He was a male friend of Ovando whose real name she did not know, but whose street name had been given to her by Ovando's teenage girlfriend. The girlfriend told Toister that she had been outside the building on the night Ovando was shot and had seen the male friend emerge. She said the male friend told her that police had come into the building, found him and Ovando, searched them and said they would let them go one at a time. Ovando, of course, came out crippled. The investigator reported that she was unable to find the male friend. The continuance Toister had asked for was not granted. Toister considered calling Ovando to the witness stand. She told the judge: "Ovando's testimony would be that he has been to that building before. He has a friend who lived in the building, and that on the day in question he has no recollection … because … he was shot in the head, arm, chest and back." But Ovando elected not to testify when the judge would not guarantee that he would preclude the prosecutor from telling the jury, if he did, that Ovando was a gang member. Czuleger had barred prosecutors from using the existence of anti-LAPD gang graffiti on the building and Ovando's gang membership to argue to the jury its theory of motive--that this was a gang hit. He ruled that the prejudice of gang evidence to Ovando outweighed its probative value to the prosecution. But he said it might become relevant as rebuttal if Ovando testified that he had been in the building for an innocent purpose. Toister's argument to the jury was that the police account was implausible. But the prosecutor, Deputy Dist. Atty. Frank Lukus, argued that there was no reasonable alternative explanation. "What would [defense] counsel have you believe?" he asked. "That they found this guy on the street, dragged him up there and shot him for some obscure reasons of their own?" When the jury came back with a guilty verdict, the prosecutor wrote a searing memorandum, focused on the gang evidence and asking the judge to impose the maximum term. The prosecution had offered a 13-year deal in return for a guilty plea before trial. Going to trial cost Ovando 10 more, as Judge Czuleger imposed a 23-year term. Defense lawyer Toister said she had learned the hard way that going to trial was not necessarily the best course for an innocent client. "My first felony jury trial," she explained: "Innocent guy gets convicted. Gets the [maximum sentence]. My third felony jury trial: Innocent guy gets convicted. Gets the max. Now, why would I tell anybody, 'Don't plea bargain because you're innocent?' " But such a decision is the client's and, in this case, Toister had agreed with Ovando's desire to take his chances. She said she thought he might do better than the deal, even if he were convicted. The reason was that he cut such a pathetic figure. Repeatedly shot by police, palsied, confined to a wheelchair, he was hard to imagine as a public safety threat. But in hammering him, Judge Czuleger cited an aggravating factor--the defendant's attitude. "Most apparently," he observed, "the defendant has no remorse."

White-collar crime now gets real time New federal prison policy criticized 1.7.03   Dan Eggen Wash.Post Federal corrections officials will begin transferring 125 nonviolent offenders from halfway houses to regular prisons this month as part of a Justice Dept crackdown on white-collar criminals, who will no longer be able to evade prison by serving time in low-security community facilities. The new policy means that hundreds of other white-collar defendants, incl some caught up in the financial scandals at Enron, WorldCom and other corporations, also have lost a detention option used by the U.S. Bureau of Prisons (BOP) for nearly 2 decades. Under the old policy, federal prisons officials allowed many first-time nonviolent offenders to serve their sentences in community corrections centers, halfway houses, rather than prison. Defense attorneys & many federal prisons officials supported the approach as a way to ease prison crowding and encourage rehabilitation of low-risk criminals. But many federal prosecutors have long complained that the policy allowed wealthy criminals to circumvent federal sentencing guidelines. "These white-collar defendants were getting a benefit that was not available to non-white-collar defendants," one longtime former federal prosecutor said. "It tended to be the situation where, if you were richer & whiter than your typical defendant, you could find all these ways to get to a halfway house." After legal review by Justice Dept lawyers, Deputy AttyGen Larry Thompson issued an unusual rebuke last month to the head of the prisons bureau, Kathleen Hawk Sawyer, arguing that corrections officials had overstepped their authority in allowing prison sentences to be served in halfway houses and had undermined the deterrence value of real prison time. Officials said the Justice Dept review was prompted by a federal judge's complaint in a WV tax-fraud case. They acknowledged that the policy change also could have a big impact on financial executives convicted of federal crimes because they will have less hope of evading prison time. "The message is that we are not going to be treating white-collar criminals any differently than the law mandates," Justice spokesman Mark Corallo said. New policy, first reported by Newsweek magazine, is also likely to affect hundreds of cases working their way through the judicial system. The new approach has come under fire from the defense bar & prisoner advocates, who say it will increase crowding and decrease the chances for prosecutors to strike deals with low-risk offenders. "It's a cheap political trick on the part of the people who have done this," said ACLU National Prison Project dir. Elizabeth Alexander. "It raises very serious questions given that this is what BOP has traditionally done, and it is viewed as a reasonable option by federal judges." National Assn of Criminal Defense Lawyers corrections committee co-chair Raag Singhal said removing halfway houses as a sentencing option runs counter to recent trends in state judicial systems, which are increasingly turning to community corrections as a way to save money and ease prison crowding. "I don't think it's going to do anything to increase the public's confidence in the treatment of white-collar criminals," said Ft Lauderdale FL atty Singhal, who represents several clients affected by the new policy. "They can do much more good at a halfway house than any prison." BOP spokeswoman Linda Smith said about 600 federal prisoners are in halfway houses as part of "direct court commitments," in which a federal judge recommended a detention more lenient than prison. About 125 of those prisoners, all of whom had more than 150 days remaining on their sentences as of 12.20.02, will be transferred to prisons beginning later this month, Smith said. The new policy will not affect the use of halfway houses as a transitional point for prisoners nearing the end of their sentences, officials said. About 8,600 of the federal govt's 164,000 prisoners are now in halfway houses. Original policy allowing the use of halfway houses for imprisonment was rooted in a 1985 legal opinion by the BOP's general counsel, Smith said. But in a review of the issue, the Justice Dept's Office of Legal Counsel found that the prisons bureau had overstepped its legal authority in adopting halfway houses as a detention option. "Community confinement does not constitute imprisonment for purposes of a sentencing order, and BOP lacks clear general statutory authority to place in community confinement an offender who has been sentenced to a term of imprisonment," principal deputy asst atty general M. Edward Whelan III wrote in 12.13.02. "BOP's practice is therefore unlawful." Prisons bureau head Sawyer notified federal judges & other court officials of the legal opinion & policy change 12.20.02. Halfway house inmates began receiving letters 12.23.02 notifying them that they would be transferred to regular prisons in late January or early February. One defendant in the Midwest, who asked that her name not be used, has been notified that she will go to a prison more than 1,000 miles from her home rather than live in a halfway house nearby. "They're saying I can't work, I can't see my family and the sentence the judge imposed doesn't matter," said the woman, who pleaded guilty to a fraud charge as part of an agreement with prosecutors. "I would never have agreed to this if I had known it would turn out like this."

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Florida was the first state to enact such a law in 2005, removing the requirement that people who think they are in immediate peril must first try to retreat from the confrontation before using deadly force. Prior to passage of the law, only people defending themselves in their own homes, for the most part, could use deadly force without first trying to flee.
Most states let authorities determine whether deadly force was reasonable, even inside the home. But the new laws create an automatic presumption that a person is justified in using deadly force to ward off an attacker in just about any public place.

"We believe that self-defense is an innate human right and the law should never put the innocent victim of a crime in a position of having to second-guess themselves," said Ashley Varner, a spokeswoman for the National Rifle Association, which pushed for the laws.
For defense attorneys, the laws offer protection to clients who have struck back at assailants.
"The more defenses the better," said Jack King, spokesman for the National Association of Criminal Defense Lawyers. He added: "Most people would rather be judged by 12 than carried by six", referring to juries and pallbearers.

Gun-control groups worry that the laws will embolden shooters to pull the trigger first rather than as a last resort.
"If you are protecting yourself or your family in self defense, that's a basic legal right anyway," said Elizabeth Haile, an attorney for the Brady Campaign to Prevent Gun Violence. At least 14 states have revised their laws to ensure that people don't have to retreat from an attacker. Those states are: Arizona, Florida, Georgia, Indiana, Idaho, Kansas, Kentucky, Louisiana, Michigan, Oklahoma, South Carolina, South Dakota, Tennessee and Texas, according to the NRA.

There is no way to tell exactly how many times the law has been used as a defense because the statutes are still too new to collect statistics. In Kentucky, prosecutors offered a plea deal to a man they accused of murder because the statute was too confusing to explain to jurors. Judge Sheila Isaac, who presided over the case, said the law apparently "went right through the Legislature without a single attorney looking at it".
She said the law was addressing a problem that didn't exist, a sentiment shared by law enforcement officials across the country.
"You just don't see cases where people are prosecuted when they are defending themselves," Isaac said.

Former GOP state Rep. Dennis Baxley, who sponsored Florida's bill, argues that the law was needed to empower citizens.
"Our judicial system tries to be so careful to protect the criminal's rights, we have neglected the right of the common citizen to protect themselves," Baxley said.
In West Palm Beach, Borden faced up to life in prison without the possibility of parole if convicted of murder and attempted murder. One of his would-be attackers, 21-year-old Juan Mendez, admitted in testimony at Borden's trial that the 3 men in the Jeep planned to "rough him up." A baseball bat was also found in the vehicle.

Prosecutor Craig Williams argued that Borden exceeded justified force when he continued firing after shooting the driver and stopping the Jeep. But Borden's defense argued that he did not have to retreat, citing the new law. Williams said he pursued the charges because he thought a jury needed to decide the case. But he privately wondered how he would have behaved in the same situation.
When Borden was acquitted, the prosecutor was almost relieved. The assailants "were bringing an arsenal," Williams conceded after the trial. "It was pretty clear what the right thing to do was here."

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