SCANDAL SHOWS WHY INNOCENT PLEAD GUILTY

The Rampart police probe casts light on cases in which suspects admit to
crimes they didn't commit rather than risk much longer prison terms if
convicted at trial.

Joseph Jones had quite a choice.

He could plead guilty to selling drugs he had not sold and serve eight
years 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.

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 and 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
two years, eight 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 two 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 eight-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 their 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 prison 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 and 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. Two 18th Street 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 attorney 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
nine-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 apartment building, 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."

But a few minutes later Kennedy-Powell rejected a defense motion to dismiss
the case because, she said, no one had asked the witness the most important
question: whether he could see the defendant's hands.

Kennedy-Powell did not explain why, if she thought this question was so
important, she had not asked it herself. She just said: "I think the bottom
line is the witness was never asked by either side, but particularly by the
defense, whether he had an opportunity to see the defendant's hands. He was
asked whether he saw a gun and he said no, but he was never asked whether
he had an opportunity to see the defendant's hands and whether there was
anything in his hand at all."

Declaring that the question was "an issue for the jury," the judge again
ordered Peralta to stand trial.

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. George 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 Street 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 10-foot 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, Czuleger cited an aggravating factor - the
defendant's attitude.

"Most apparently," he observed, "the defendant has no remorse."