10/30/00 9:20 a.m.
Passing the Buck
The LAPD’s Rampart Scandal.

By Jack Dunphy*, an officer of the Los Angeles Police Department

he Blame Game continues in the LAPD's "Rampart Scandal." The latest to point fingers is Tamar Toister, an L.A. County deputy public defender, who blames a prosecution-friendly court system for tying the hands of defense attorneys. It was Ms. Toister who represented Javier Ovando, an 18th Street gang member who police officers claimed had tried to ambush them in an abandoned apartment building near downtown Los Angeles on October 12, 1996. The officers shot Ovando several times, paralyzing him from the waist down, then testified against him at a trial that resulted in his conviction and a 23-year prison sentence. But one of those police officers was Rafael Perez, the now-infamous central figure in the scandal, who, when nabbed for stealing eight pounds of cocaine from LAPD evidence-storage facilities, bargained for a reduced sentence by claiming to have knowledge of deeply-rooted corruption within the LAPD.

One of Perez's first revelations was that he and his former partner, Nino Durden, shot Ovando without provocation, then planted a gun on him and perjured themselves at his preliminary hearing and trial. Ovando has been freed but remains paralyzed. Durden awaits trial for the attempted murder of Ovando, but Perez's plea agreement precludes prosecution in the matter.

Blame has been an underlying theme in the Rampart mess, with cops, politicians, judges, and lawyers for both prosecution and defense rushing about and denying responsibility to anyone who'll stand still long enough. In an earlier column on NRO I referred to Lou Cannon's article about Perez, "One Bad Cop," that had appeared in The New York Times Magazine. Cannon interviewed Toister for the article, in which she repeated some of the assertions she had made in her own op-ed piece that ran in the Los Angeles Times on September 21. Toister claimed that she was hamstrung in her defense of Ovando by superior court judge Steven Czuleger, who ruled against her when she tried to elicit information from the prosecution before the trial and from Perez and Durden during it. A passage in the Cannon article reads:

Toister asked the judge for a continuance to inspect the building [where the shooting occurred] and see the fence. The judge refused. When Toister tried to cross-examine the officers about discrepancies between their first report and their revised account, the prosecutor objected and the judge sustained his objections. Throughout the trial, Toister couldn't seem to catch a break. "What happened was dirty," she told me later. "I did all I could but I wasn't allowed to put on a defense."

As I mentioned in my earlier article, I have the utmost respect for Lou Cannon and his work, but in this instance it appears Ms. Toister took him for a bit of a ride. According to the trial transcript, the fence in question was never mentioned when Toister asked for a continuance. Rather, she sought to delay the trial so as to obtain a report from the prosecution's gang expert, even though she was not entitled to one as no such report had been prepared. Also, the reference to "discrepancies between their first report and their revised account" is misleading. As the transcript reveals, the "first report" was prepared by a detective who investigated the Ovando shooting, not by Perez or Durden, and Judge Czuleger was well within the law to prohibit Toister from cross-examining them on the report's contents. The proper witness to be challenged on the report would have been the detective who wrote it, and the only detective to testify at the trial was never questioned regarding any alleged discrepancies. In fact, Toister didn't call a single defense witness to testify during the seven-day trial.

I don't dredge this up to embarrass Toister. What happened to Ovando was indeed dirty. But from the information presented to her at the time, it must have appeared that she had yet another guilty client on her hands. Ovando had been offered a 13-year sentence if he pled guilty before trial, which Toister found excessive given his clean record. (Ovando had no convictions in California, but he had been deported twice by the INS, in September 1995 and again in February 1996. His unauthorized return to the United States is a felony under federal law.) Toister was undone by a pair of cunning and skillful liars who knew how the game was played as well as she did. As she admitted in her L.A. Times piece, had every ruling from the bench gone her way the jury's verdict may well have been the same. One deputy D.A. told me that Perez was "one of the best witnesses I ever had," an opinion echoed many times by others. The justice system rests on a foundation of truth, and is not well equipped to deal with such as Perez.

Now the next round of pass-the-buck is about to be played. Gil Garcetti, district attorney of Los Angeles County, finds himself lagging in the polls as he fights to fend off an election challenge from insurgent subordinate Steve Cooley. One of the criticisms often lodged against Garcetti is that he has failed to win the "big trials," such as the O.J. Simpson murder case. It appears that Mr. Garcetti is about to be dealt another blow, this one perhaps due to land on the very eve of the election.

In the first criminal case to arise from the Rampart scandal, prosecutors have informed trial judge Jacqueline Connor that they will not be calling Perez to testify against four of the officers he has accused of perjury and filing false police reports. His attorney, Winston McKisson, has said that Perez would invoke the 5th Amendment rather than answer defense attorneys' questions regarding his own criminal activity. Perez's plea agreement is contingent on his truthfulness in his dealings with internal affairs investigators and prosecutors, and every few days there are new signs that he has been less than forthcoming in his accounts.

Prosecutors also revealed that they will not be calling some of the victims of the officers' alleged misdeeds, all of whom are gang members with what we may presume to be well-grounded reasons for making use of the 5th Amendment. Without Perez, without the others, the prosecutors are left with a hollow shell of a case that will result in convictions only if the jurors are the intellectual and ideological twins of those who freed Mr. Simpson.

The voters know little and care less about the inner workings of the D.A.'s office. They only know who's in charge when something bad happens, and that guy has to go. So Gil Garcetti is stuck with another stinker on his hands, as he ponders his employment prospects and sifts through the ashes of what once appeared to be a promising career in politics. But it was politics, after all, that forced him to take the matter to trial in the first place. The problems in the case were eminently foreseeable, for no prosecutor would be eager to bring before a jury a case in which the witnesses are an admitted perjurer and thief, and an assortment of armed robbers, dope dealers, and other various ne'er-do-wells.

Garcetti's hand was forced by LAPD chief Bernard Parks, who, in attempting to deflect blame for the scandal from himself, accused the district attorney's office of dragging its feet in prosecuting cops whom Parks had pronounced guilty. Garcetti apparently figured that even if he proceeded with the case, the gears in the system would turn slowly enough that the outcome would not be known until after the November election. But the accused cops and their attorneys wouldn't go in for the delay game. Let's put twelve in the box and see what you've got, they said, and what the D.A. had was a witness list that read like a roll call at the county jail.

Parks has also tried to blame prosecutors in the D.A.'s office for not realizing sooner that Perez was a liar, in effect saying, "Sure, he works for me, but you should have known the guy was a bum." Parks, of course, has his own reasons for laying off responsibility. He is approaching the end of his five-year term as chief of the LAPD, and the mayor, whoever it happens to be at the time (the mayoral primary comes in April 2001), will have the option of appointing him to a second term. Parks is nothing if not proud (to a fault, some would say), and he surely desires a second term so as to rehabilitate his legacy, which at the moment consists of scandal, declining morale, and rising crime. For reasons too numerous to list here, there will be few tears shed among the rank-and-file if the new mayor gives Parks the sack.

A warning to the neighbors: The Dunphy house will be the scene of prolonged bacchanalian revelry on the day Parks turns in his badge. May it come quickly.

(*Jack Dunphy is the author's nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management .)