NEWS ANALYSIS : High-Profile Losses Tarnish Reputation of D.A.'s Office : Justice: Prosecutors win most cases, but failures like Menendez and McMartin invite criticism of tactics.

By TED ROHRLICH

March 6, 1994 12 AM PT

TIMES STAFF WRITER

The Los Angeles County district attorney’s office doesn’t just help solve mysteries anymore. It has become one.

When no one’s watching, the office racks up convictions in four trials out of five.

But when everyone’s watching, the office looks like a lightweight, losing far more high-publicity cases than it wins.

Consider its poor track record in some of the most klieg-lighted cases of the last decade: “Twilight Zone,” McMartin, King, Denny, Menendez.

Dist. Atty. Gilbert Garcetti and his top aides say it is unfair to evaluate the office, which prosecutes more than 50,000 felonies a year, on the basis of a handful of cases that fascinated the media over a decade.

But these few failures in the spotlight leave lasting impressions and have diminished public confidence in an important crime-fighting institution.

“People are poking fun at us,” Garcetti acknowledged last week during a meeting with his deputies. And that makes some career prosecutors angry.

“We’re a laughingstock,” said veteran Deputy Dist. Atty. Sterling Norris, who ran for district attorney in 1992. Referring to the Rodney G. King and Reginald O. Denny beating trials and the Lyle and Erik Menendez case, he said: “It’s not often the D.A. can burn down half the city, alienate half the city, then turn around and lose a major murder case.”

One reason for Norris’ disenchantment is that the district attorney’s office is expected to win. Prosecutors pick their shots, choosing which cases to file and which charges to bring, all with the help of a manual that instructs them to base their decisions partly on a belief that they can win.

“We do win most of our trials,” said Pamela Bozanich, the lead prosecutor in the Menendez trial, which ended in January with juries unable to reach verdicts. “We’re supposed to.”

Indeed, each year for more than a decade, the district attorney’s office has won convictions of the charged or lesser offenses in 75% to 80% of its 2,500 or so felony trials. The vast majority of felony cases are settled through plea negotiations.

Still, the district attorney’s difficulties with cases tried under the glare of publicity are a popular topic of conversation within the legal community. Three dozen prosecutors, defense lawyers, judges and law professors interviewed for this article advanced many theories to explain why the district attorney’s office has more often than not failed when in the spotlight.

Some theories centered on problems within the office, while others focused on factors that are inherent in high-publicity cases, and are thus outside the district attorney’s control, such as the allure of fame.

Fame may make it more difficult for jurors to convict a defendant, even if the defendant’s celebrity status is derived from his or her alleged crime, some lawyers and judges say. They cite a string of acquittals around the country in high-profile cases involving such notables as Lorena Bobbitt, Imelda Marcos, William Kennedy Smith, and just last week, the Branch Davidians.

Despite what may be a national trend, some lawyers and judges say the Los Angeles district attorney’s office may be responsible for some of its own difficulties, because:

* It doesn’t always tap the best prosecutors available. Some prosecutors and a judge went so far as to suggest that elected district attorneys do not want to give their most talented subordinates public platforms from which to launch political careers. The three most recently elected district attorneys, Garcetti, Ira Reiner and Robert Philibosian, reject that suggestion.

* It has had trouble hanging on to some of its better prosecutors, losing many to the judiciary. Former Gov. George Deukmejian drew on the office in extraordinary fashion, naming more than 100 Los Angeles deputy district attorneys to the bench in the 1980s. “It was nice to have one of your colleagues elevated to a judgeship but there was a price this office paid for that loss of talent,” said a high-ranking deputy in the 850-lawyer office.

* Prosecutors assigned to high-profile cases are not given adequate support. Prosecutors are typically viewed by the public as having the awesome power of the state behind them. But their resources are sometimes limited compared to expensive defense attorneys on these cases. While preparing for the Menendez trial, Bozanich had to learn word processing programs so she could type her own motions; her office said there was no money to provide her with a secretary. Defense attorneys in the case had the proceeds from a multimillion-dollar estate.

* Elected district attorneys may have gotten carried away by emotions or politics and charged defendants with more crimes than they could prove. When this kind of overcharging occurs in response to public pressure, as some believe it did in the McMartin Pre-School molestation case and in the Denny beating case, a backlash can occur, resulting in a win for the defense and a loss of faith in the prosecutor’s office.

* Prosecutors in Los Angeles may be ill-trained to try high-publicity cases. “I don’t want to say the D.A.’s office stinks,” said Myrna Raeder, an expert in the rules of criminal evidence who teaches at Southwestern University School of Law. “It’s untrue. It’s unfair. But they’re ignoring what grips the public, what grips the jury” when they make dry, factual presentations in cases that pose difficult emotional questions.

In the Menendez case, for example, the two men who admitted shotgunning their parents to death offered an excuse that resonated with many jurors: They had been sexually abused by their parents.

But some observers said prosecutors could have overcome the defense’s portrait of the men as victims if they had shucked their restraint and shouted: So what?

“Can the fact that something terrible has been done to you justify premeditated murder? That’s the issue that had to be argued,” said Harland Braun, a former deputy district attorney who has become a successful defense lawyer. “Death Rows are loaded with people with backgrounds as bad as Erik Menendez. . . . We convict them because it’s necessary to protect society.”

Failure to address an issue that lies just beneath the surface of a case may have also hampered the district attorney’s office in the Denny trial. In that case, several black men were prosecuted on charges of beating and robbing Denny and other white, Asian American and Latino motorists in the early moments of the 1992 riots that erupted after the first King trial.

The attacks, broadcast live on television from an intersection that police had deserted, became a powerful and frightening symbol of police failure to keep order.

However, when the focus shifted to the defendants, the symbolism shifted too. The defendants were portrayed as scapegoats of a racist society that acquits police officers whose beating of a black man was seen worldwide on videotape, then throws the book at African Americans who rise up in protest.

Reiner, who served as Los Angeles County district attorney from 1984 to 1992, said the defense made the case a “symbol . . . of the entire question of race in contemporary America. . . . How you decided the case really set out how you felt about the symbol.”

But the prosecution, Raeder said, decided to pretend the symbolism wasn’t there. “Here we have a situation where people are doing illegal activities which are clearly racially oriented, yet prosecutors tried to disassociate them from the larger context.”

It didn’t work. Jurors rejected the prosecution’s meticulously presented contention that the assailants were guilty of attempted murder and aggravated mayhem in the beating of Denny. The defendants were convicted of lesser charges, but the case is widely considered a loss for the district attorney’s office.

There may have been other flaws in the district attorney’s handling of that case.

“Had that case not occurred during the civil disturbance and not been on television, those guys would have had serious charges filed against them, but probably not attempted murder and aggravated mayhem,” said Superior Court Judge James Albracht, who considers the case an example of overcharging. “And their bail would have been set at $25,000 to $40,000, not . . . in the hundreds of thousands of dollars. . . . I think people in the black community said there’s something going on here that’s not right . . . and that created a kind of backlash effect.”

Albracht said he believes a more dramatic example of overcharging was the McMartin case, in which seven nursery school owners and teachers were accused in 1983 of molesting scores of preschoolers and held without bail, or on extremely high bail, for years. Ultimately, all were let go by the district attorney or by juries when it was shown that many of the alleged victims had been coached into making incriminating statements that could not be corroborated.

In an office in which many lawyers have 20 or more years experience, the prosecutors assigned to most of these cases were relatively inexperienced.

Lael Rubin had been a prosecutor less than six years when she was assigned to salvage the McMartin case--a hopeless task, she says, because of a botched initial investigation.

“I don’t think anybody could have gotten a conviction because of the flawed nature of the evidence, the interviews and the investigation,” Rubin said. “There was a belief that we could overcome that.”

Terry White was a nine-year veteran when he found himself prosecuting the four police officers accused of beating Rodney G. King, a black motorist who had led officers on a chase and was beaten when he failed to comply with their commands to surrender.

Lea D’Agostino was also a nine-year veteran when she got the job of prosecuting film director John Landis and four colleagues for involuntary manslaughter in the deaths of two children and an actor during filming of the movie “Twilight Zone--The Movie.”

Longevity is certainly no guarantee of energy or skill.

But some speculate that elected district attorneys are loath to appoint lawyers of long tenure and proven accomplishment for fear that, once loosed in front of cameras, these lawyers might become well enough known to challenge the district attorney at the polls.

The prosecutors who secured the only two high-publicity victories for the district attorney’s office during the last decade did not get other high-publicity cases to try. William Hodgman, who successfully prosecuted savings and loan operator Charles H. Keating Jr. for defrauding small investors, has become a key administrator. P. Philip Halpin, who in 1989 prosecuted Richard Ramirez of the “Night Stalker” serial murders, works in a district attorney’s branch office in San Fernando, deciding what charges to bring in cases filed there.

Halpin said recent district attorneys have “sent a clear message to young deputies that trial experience does not equate to promotion.”

Sterling Norris is widely regarded as one of the office’s premier trial attorneys, but he has not been assigned to the highest-profile cases since he successfully prosecuted “Freeway Killer” William Bonin in 1982, winning convictions on 10 murder counts.

“If you’re really, really good, that may hold you back,” said Johnnie L. Cochran Jr., a leading defense attorney who was the No. 3 executive in the district attorney’s office from 1978 to 1981. “Politically . . . you’re a threat.”

Cochran and many others, who did not want to be identified, also said district attorneys have placed too much emphasis on showcasing the office’s ethnic and gender diversity in high-profile cases, rather than simply appointing the toughest prosecutors available.

In the McMartin, Denny, Menendez and “Twilight Zone” cases, they noted, the lead prosecutors were women; in King, the lead prosecutor was a black man.

“Sometimes this desire for political correctness doesn’t put your absolute best team forward,” Cochran said.

Garcetti, Reiner and Philibosian disputed these assessments, saying they chose only the most qualified prosecutors available, then supervised them closely.

Several of the prosecutors who were selected said that despite the involvement of the head of the office in their cases, they got very little in the way of investigative, legal research or clerical support, detracting from their ability to fully dedicate themselves to their courtroom strategies.

“I learned WordPerfect during the trial,” said Bozanich, the 14-year veteran who tried the Menendez case. “I turned in a motion I typed myself and the judge exploded, so I learned spellcheck. . . . Our subpoenas were handwritten or typed by me.”

Rubin, the prosecutor in the McMartin case, said she had to conduct an 18-month preliminary hearing without important transcripts of what her child witnesses said in videotaped interviews with social workers. The defense had prepared transcripts for itself and was challenging the interviewers for having coached the children. But Rubin said she was told by Garcetti, who was then chief deputy to Reiner, that the district attorney’s office could not spare the funds to transcribe the videotapes.

Garcetti acknowledged that “we simply have not been giving our lawyers the support they need in terms of investigators, paralegals, law clerks, secretarial support, expert witnesses, whatever it is. . . . I want them to know it’s going to be there.”

Also, Garcetti said, he wants to improve the training his trial deputies receive. He said the district attorney’s office does a good job now, but could still be better. He said prosecutors get only three weeks of training when they join the office. After that, their only training comes at occasional half-day seminars on Saturdays. Attendance at these is voluntary. “I want formalized training,” he said, even for prosecutors who have been with the office 15 or 20 years.

Garcetti refuses to discuss why his prosecutors have lost the high-publicity trials, saying: “I’m not going to talk about the cases in the past.”

Philibosian, who served as district attorney from 1982 to 1984, when he lost an election to Reiner, blamed what he termed Reiner’s micromanagement style and inexperience as a felony prosecutor for most of the defeats.

Reiner had other ideas.

For instance, in the “Twilight Zone” trial, he said, he inherited a difficult case because film director Landis was accused of negligent behavior in the deaths of the actors rather than an intentionally criminal act. The deaths occurred during the 1982 filming of “Twilight Zone--The Movie,” when a helicopter was struck by fireball from a special effects explosion and fell on the three victims. The issue was whether Landis could have foreseen and thus avoided the crash.

Trial prosecutor Lea D’Agostino argued passionately that Landis should have stopped filming after troubles during rehearsal. But others said she was too passionate in portraying the director as a criminal in a case where his culpability, if any, was by omission.

D’Agostino responded: “It’s very hard not to be intense when two tiny children have been murdered--one decapitated--and a good actor has also been decapitated and it looks like he’s been through a blender.”

The King case, Reiner said, was a tough sell because “ordinary citizens are reluctant to convict a police officer of a crime when he uses too much force to arrest a criminal, period.”

King’s beating at the hands of police was captured on videotape by a bystander and seen worldwide. But prosecutor White said he knew right away that “just because you have a video, doesn’t mean you have a slam dunk case.”

Lawyers and judges who watched portions of the trial on television said the defense did a masterful job of desensitizing the jury by repeatedly running the videotape at slow speed and calling experts to testify that King charged the officers and the officers acted appropriately.

Critics say that the district attorney should have called its experts right away and called King as a witness.

But White said his hands were tied. He said three use-of-force experts agreed to testify for the prosecution, then backed out. King wasn’t called because, in interviews, King denied speeding, drinking or leading officers on a chase that night--in contravention of all other evidence.

The officers were acquitted, touching off the worst urban riots in the United States during this century. Two of the officers were later convicted of federal civil rights violations.

In the Menendez case, because jurors could not agree on a verdict, the district attorney’s office will get to try again.

For its upcoming effort, Garcetti has switched prosecutors, appointing a new team led by David Conn, a 15-year veteran who won convictions in the so-called “Cotton Club” murder of theater impresario Roy Radin. He also named Carol Najera, a nine-year veteran. Najera’s appointment set off grumblings that the office might take another drubbing.

In a speech to deputies a week ago, Garcetti exhorted them to “get behind” the new team. Then, in almost the next breath, he seemed aware of the worrying when he undercut Najera.

“David Conn,” he said, “is the person assigned to the case. He will be handling 95% of the case. He asked for assistance. He asked that Carol (Najera) be assigned to the case. . . . I said, ‘Yes, she will be a fine assistant for Dave.’ ”