CAN THE L.A. CRIMINAL-JUSTICE SYSTEM WORK WITHOUT TRUST?

Imagine how you would feel if you discovered that your son incrementally
had stolen the family jewels and sold them on the street to support his
drug habit. You would be enraged and perplexed. You would try to forgive,
but you could not forget. You'd realize that, despite your best intentions,
you could never trust your son again.

These days, many L.A. County defense lawyers have similar feelings toward
the district attorney's office in the wake of the discovery that deputy
district attorneys assigned to its narcotics unit have relied on secret
wiretaps for years to gather evidence against their clients--and no one,
including judges, knew about the practice. Beyond the obvious legal
question of whether the district attorney knowingly violated the 4th
Amendments's prohibition against unreasonable search and seizure is one
that cannot be resolved in court: Can the county's criminal-justice system
carry on in an atmosphere of mistrust?

The wiretap discovery came in the 1996 Lauro Gaxiola cocaine possession
case. Defense lawyers appearing before Superior Court Judge Gregory Alarcon
had spent a year trying to obtain their clients' statements. By law, the
prosecution is required to turn over such statements to the defense. The
lawyers were stunned to learn that the charges were derived from secret
wiretaps. Furthermore, the Los Angeles Police Department and the district
attorney's narcotics unit had conspired to carry out hundreds of such
wiretaps since 1985, all without informing either defense attorneys or
trial judges hearing the cases.

The seminal ruling in wiretap law came in 1967, in Katz vs. United States,
when the U.S. Supreme Court held that, contrary to the spirit of the 4th
Amendment, modern technology afforded the government significant
opportunities for invading personal privacy without intruding into physical
space. The court rejected the idea that only searches and seizures of
tangible property were protected by the amendment and expanded the
amendment's protections to invasions of personal privacy even when no
physical trespass occurred. Since Katz, the police can only monitor a
conversation pursuant to a warrant signed by a judge and based on a showing
of "probable cause."

LAPD officers have avoided revealing the existence of their electronic
intercepts using a police procedure known as "the handoff technique." It
works like this: Narcotics officers on "Team A" set up a wiretap to gather
information on a suspect. Without identifying the source of their
information, the officers turn over the wiretap's "intelligence product" to
detectives from "Team B," also members of LAPD's narcotics unit. Using the
intelligence product, "Team B" officers set about trying to gather facts
independently that would provide "probable cause" for a second judge to
sign a search warrant targeting another suspect, without the cops
disclosing the existence of the first wiretap to the jurist.

It is not hard to imagine the potential harm from this police-prosecution
malfeasance. If an investigation focused on a pharmacist, for instance, the
police would have a taped record of every prescription for every patient
and physician who called the pharmacy. By law, these wiretaps are preserved
for 10 years, so the potential damage to an innocent citizen having his or
her private calls intercepted is significant.

What aggravates the misconduct is the likelihood that neither the police
nor the "wiretap judge" followed the legal requirement that the police file
written progress reports every 72 hours, and that the judge make a decision
every 72 hours on whether a tap can continue. There is strong reason to
suspect that neither the judiciary nor the Legislature has been "minding
the store." For example, a judge issuing a wiretap order must inform any
person whose voice was wiretapped within 90 days and supply the person with
an inventory of what was recorded. Similarly, Atty. Gen. Dan Lungren is
required to provide a detailed report to the Legislature and state Judicial
Council each April regarding the number and duration of all wiretaps
conducted by every law-enforcement agency in the state. As of last week,
neither the Judicial Council nor Chairman John Vasconcellos' Senate Public
Safety Committee could find a copy.

Finally, no public defender or private criminal lawyer has been given the
legally required inventory since 1985, when the secret wiretaps began.
According to Public Defender Michael P. Judge, the public record discloses
only three reported wiretaps by local law enforcement during 1997--two by
the LAPD and one by the county Sheriff's Department. It is simply
mind-boggling that, for the last 13 years, on hundreds of occasions when
the court or opposing counsel have asked prosecutors whether they have
turned over all defendants' and co-defendants' statements, they have been
lied to or misled. The danger from these secret wiretaps is not limited to
suspected criminals. According to statistics published by the
Administrative Office of the United States Courts, which oversees
"authorized" federal wiretaps, each wiretap order of roughly 40 days in
length results in the interception of an average 2,139 conversations
involving 84 separate persons. The statistics also note that the average
tap produces incriminating information less than 20% of the time, resulting
in the arrest of two suspects and the conviction of a single individual.
If, as a police narcotics detective testified in the Gaxiola case, there
have been hundreds of secret "handoff" taps and electronic intercepts, by
extrapolation, thousands of Los Angeles residents have had their private
telephone conversations secretly and illegally monitored by LAPD.

The public defender has filed an unprecedented class-action habeas corpus
petition with Superior Court Presiding Judge Robert W. Parkin on behalf of
all past, present and future public defender clients. It seeks to discover
whether the prosecution denied thousands of defendants a fair trial by
hiding the true source of its information, i.e., secret wiretaps. If secret
wiretaps were used and the evidence was concealed from the defense, then
thousands of men and women were illegally convicted and incarcerated.

Should this unhappy scenario play out, the criminal justice system could
well be irreparably damaged, its credibility in the public mind ruined.
Yet, even if events keep the convicted behind bars, the loss of trust
between prosecutor and defense lawyer may never be fully recovered. The
problem defense lawyers and criminal judges face today is that they have
never had so many prosecutors lie for so long about so much, which may have
resulted in the unconstitutional convictions of so many.

Copyright Los Angeles Times