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November|December 2003
unbecoming CONDUCT By Steve Weinberg
Trials, but Mostly Tribulations By Wade Chow
Delusions of Grand Juries By Niki Kuckes
Ramsey Clark's Prosecution Complex By Josh Saunders
The Diplomat's Dance By Romesh Ratnesar

Trials, but Mostly Tribulations

Inconclusive evidence, unreliable witnesses, uncooperative colleagues, indiscreet sheriffs, and unappreciative victims—all in a day's work.

By Wade Chow

I RECENTLY PROSECUTED A DATE RAPE CASE involving a 17-year-old victim from San Francisco's Mission District. She was from a broken family and had taken to hanging out with the Norteno gang, who congregate most nights in the Mission's 24th Street corridor. On the day she was attacked, she had skipped school and met up with three men in their 20s who were members of the Bryant Street Locos, a chapter of the Nortenos known for robbery, aggravated assault, and murder. The victim spent the evening drinking with the men and eventually blacked out, probably because the date-rape drug GHB was slipped into her drink. At least two of the gang members raped her while she was unconscious.

When she awoke, the victim managed to find her way home. Her crying woke her sister, who discovered that someone had taken a pen and "tagged" her sibling's chest and thigh. It wasn't difficult to decipher who had done the writing: "22B" referred to the 22nd and Bryant Street gang, as the Locos were once known, "BSL" to their current name, and "Li'l Vamps" to the street name of one of her three attackers.

Despite the attackers' brazenness, the case against the Locos almost immediately met with setbacks. The rape trauma center that treated the victim failed to follow the medical examiner's evidence collection protocol. It packaged her urine sample in a screw-top jar that leaked, leading the M.E. to determine that the sample could not be tested for the presence of date-rape drugs. The victim also admitted that she had drunk approximately 10 ounces of Bacardi Limón the night of the attack, which our own toxicology expert conceded could have been enough to cause a girl of her slight size to lose consciousness and memory.

Once I had talked to the victim, I knew this was a rape. But I also knew that this was going to be a tough case to make. Without any proof that she had been drugged, it would be difficult to prove that she hadn't consented. The defense could point to the alcohol she had consumed and argue that she had merely forgotten about consenting. Or the defense might take a different tack. Some gangs, I have learned, use sex as an initiation rite. The defense could create reasonable doubt by arguing that the victim had allowed the men to have sex with her so that she might join their ranks and had come to regret the choice only the next morning, long after the question of consent was relevant. The brutality of the crime—and the audacity of its perpetrators—may have been open and shut in my mind, but the outcome of the case was far from certain.

IN HIS NEW BOOK THE PROSECUTORS, the Sacramento Bee reporter Gary Delsohn sets out to chronicle the kind of difficult decisions that face big-city prosecutors on a daily basis. The idea is not an original one. In recent years, a spate of television programs have taken up real-life prosecutors as their subject. NBC filmed members of the San Diego district attorney's office for Crime & Punishment, a documentary spinoff of Law & Order, and the San Francisco D.A.'s office, where I work, opened its doors a couple of years ago to a production company making a documentary for the Discovery Channel. In contrast to the fictionalized accounts that acquaint most law-abiding citizens with prosecutorial work, these productions performed a valuable public service. But while cameras may not lie, they certainly influence the behavior of their subjects. By contrast, a skilled reporter not burdened by a camera can make his subjects forget that he's there, as Delsohn did during the year he spent in the Sacramento D.A.'s office. His experience as a "fly on the wall" allowed him to produce a brutally unvarnished account of how a district attorney's office works.

Delsohn looks on as prosecutors from Sacramento and Los Angeles square off over the murder of Myrna Opsahl. A 42-year-old mother of four, Opsahl was shot and killed during a bank robbery in 1975 in Carmichael, Calif. The robbers were alleged to be members of the Symbionese Liberation Army, the radical group notorious for kidnapping the newspaper heiress Patty Hearst and transforming her into a gun-wielding revolutionary. Despite a slow trickle of evidence suggesting that the SLA was involved, the Sacramento D.A.'s office, which had jurisdiction over Carmichael, repeatedly declined to file charges against SLA members Michael Bortin, James Kilgore, siblings Kathleen and Steven Soliah, and spouses Bill and Emily Harris. According to a memo written by Geoff Burroughs, the prosecutor reviewing the case in June 1976, there was insufficient evidence to sustain a murder conviction against the suspects.

In 1999, however, police located and arrested Kathleen Soliah in Minnesota, where she had been living under the alias Sara Jane Olson. Soliah had been missing since 1975, when she skipped bail after charges were filed against her for placing a pipe bomb under an LAPD cruiser. (The bomb failed to detonate.) She had managed to avoid detection for 24 years in St. Paul, where she married a doctor, had three daughters, and became an actor in community theater. But when the TV show America's Most Wanted revisited the Los Angeles bombing case, someone phoned in a tip, and she was placed under arrest.

The assistant district attorneys in Los Angeles assigned to the car bombing case, Mike Latin and Eleanor Hunter, began looking into the SLA's participation in a number of other unresolved crimes. They became convinced that Sacramento had a stronger case against Soliah for the killing of Myrna Opsahl than they had against her in the car bombing case. Patty Hearst, who admitted taking part in the Carmichael bank robbery, had detailed what had happened—and identified the people involved, including Soliah—in her 1982 autobiography. In 1991, Hearst had repeated her account of events in testimony before a grand jury, but the Sacramento office's position on filing charges remained unchanged. Hearst was an accomplice; by law, her uncorroborated testimony was not enough on which to build a case.

But Latin and Hunter believed that advances in forensic technology provided the evidence needed to back up Hearst's account. They traveled to Sacramento and gave a PowerPoint presentation of their findings to Jan Scully, the district attorney for Sacramento County. Scully wasn't swayed. In March 2001, Steve Cooley, the newly elected district attorney for Los Angeles County, met with Scully and tried to press her to file the case. He followed up with a letter in which he argued that the case met the legal standard for filing and asked that she act within 30 days. She rebuffed him, writing that she would not allow political pressure to dictate the actions of her office.

The Los Angeles office didn't back down. After Latin and Hunter met with a cool reception from Scully, they made their presentation again—this time to Dr. Jon Opsahl, Myrna's son. Dr. Opsahl, a Southern California physician, was outraged about the Sacramento D.A.'s failure to prosecute his mother's case. He set up a website blasting the decision and began criticizing the office in the media.

In the face of the mounting pressure, Jan Scully called a meeting with the Opsahl family to explain the problems with resurrecting the matter. Delsohn, who sits in on the meeting, recounts veteran homicide prosecutor John O'Mara's efforts to explain the weakness of his office's case. O'Mara, a disgruntled bear of a man, contends that the case rests entirely on the credibility of Hearst, which is shaky at best. In his view, Hearst is cooperating only because she wants a presidential pardon (which she is eventually granted by Bill Clinton). O'Mara also doubts that the forensic evidence touted by the Los Angeles D.A.'s office is admissible in court. Dr. Opsahl refuses to accept O'Mara's excuses. O'Mara, a career prosecutor proud of his reputation for handling tough cases and disdainful of political niceties, loses his temper. Delsohn describes the mounting tension:

[O'Mara's] voice gets louder. He's almost shouting. His face has turned crimson. He's jabbing his index finger—hell, he's jabbing his whole hand—at the younger Opsahl. . . . Everyone else sits silent and stunned. John O'Mara, head of Homicide, the man entrusted to do justice by murder victims and their families, is tearing into the son of a woman murdered in one of the highest-profile unsolved homicides in California history.

Dr. Opsahl, undeterred, asks O'Mara why arrests haven't been made to put pressure on the defendants to cooperate. Delsohn presents O'Mara's response as a mixture of frustration and contempt:

The expression on [O'Mara's] face, the way his eyes narrow and his head tilts as if he's straining to bring their target into focus, what he's thinking: I'm talking to a fucking fool. . . .

"I wish I could deputize you, sir, and we could prosecute murder cases together, because you seem to think that any eighth grader with a little knowledge of basic civics can prosecute a person for murder, and that the only thing standing in the way of this case moving forward is big fat stupid John O'Mara. But that ain't the way this works. This is not television."

Nor is Delsohn's account: He captures the Sacramento prosecutors as they are, without the masks they might wear when a TV crew is hovering around.

Despite his success at blending into the background, however, Delsohn doesn't quite get the whole story. Rather than examining the wide range of cases confronted by a D.A.'s office, he follows five homicide cases, though he terms them "an extraordinary array of cases that would test the office on a daily basis." Other types of cases—narcotics, sexual assault, domestic violence—get only a passing mention.

Delsohn might be forgiven if he were sacrificing comprehensiveness for a compelling narrative, but there's a curious lack of dramatic tension in the cases he chooses. While their lurid details make for good tabloid headline copy—Man Kills Girlfriend on Snuff Film; Diet Doctor With Nazi Fetish Throws Baby Out Window—they don't necessarily provide the basis for a good story or a complete portrait of a D.A.'s office.

SACRAMENTO, THE SEAT OF CALIFORNIA'S STATE GOVERNMENT, has slightly over a million people, and it continues to grow. As in other California cities, the boom of the 1990s blessed some neighborhoods and passed over others. One of the cases Delsohn follows is a botched robbery of the Bread Store, a popular bakery in midtown Sacramento. Having successfully robbed the store a month before, Rick Brewer decided to hit it again and recruited a getaway driver and a group of young thugs from his rough Southside Park neighborhood to help him. They burst into the bakery at the end of the day, wearing masks and brandishing guns. When they discovered that the money was locked in a safe that cannot be opened, Brewer shot the assistant manager with three shotgun blasts at close range.

Delsohn finds the Bread Store case "emblematic of the hazards prosecutors must navigate when they try murders anywhere in America: using a snitch; felony murder where the guy who drives the getaway car is just as guilty as the triggerman; dealing with self-serving testimony from accomplices; the fragility of juries; personal animosity among attorneys; arguments about the death penalty; evidence not fully disclosed." That's an accurate enumeration of the challenges prosecutors face, but the Bread Store case isn't nearly as illustrative of them as Delsohn would like it to be.

The prosecution had an overwhelmingly strong case. The murder weapon was found in the shooter's closet and bakery flour on his shoes. Two of his codefendants confessed to their parts in the robbery, and one codefendant turned state's evidence in return for a reduced sentence. It was clear from the start that the shooter would receive the death penalty. The only question was whether his codefendants would receive life with or without the possibility of parole. Given the current posture of the California parole board, it's a distinction without a difference: The board hasn't paroled anyone convicted of murder for 20 years.

Most cases I try aren't nearly so open and shut. In my case against the Bryant Street Locos, the victim remembered little of the incident, and I was forced to go forward with circumstantial evidence to support her story: DNA evidence from the semen found on the victim's underwear and on vaginal swabs; a minor vaginal injury that could be consistent with either consensual or nonconsensual intercourse; a tearful statement to her sister s hortly after the incident; a false one by a defendant who claimed he didn't know her; and the gang graffiti that had been scrawled on her body. In the end, I won the case because of the strength of the circumstantial case, but also because the defense made the bad tactical decision to contest everything—suggesting that the girl had willingly become intoxicated and consented to sex, while at the same time arguing that the DNA tests were unreliable and that perhaps no sex had occurred at all—and because the victim did as good a job convincing the jury that she had been raped as she had done convincing me.

Only one of the cases that Delsohn follows relies primarily on circumstantial evidence. Dennis Tison, a doctor who ran a string of weight-loss clinics, was accused of throwing his infant daughter Isabel out a window. Delsohn reports closely on the investigation, as law enforcement and prosecutors built the case against the doctor. The exact circumstances of the baby's death could not be proved, but the assistant district attorney assigned to the case spent hours at the doctor's house with investigators as they threw a doll the same size and weight as the deceased baby out the window where they thought Tison defenestrated his daughter, trying to verify that she could not have fallen accidentally.

The prosecutor also busied himself learning everything he could about the accused. He ordered a search of Tison's house and found weapons and Nazi regalia. He read the doctor's e-mails, finding one from his wife accusing him of domestic violence, though she had told investigators that the doctor would never hurt their child. He looked into the doctor's work history and found that he had used illegal drugs, threatened ex-employees, and sexually harassed female employees. Patiently, the prosecutor and the investigators conducted a series of interviews with the doctor and developed a list of inconsistent statements.

After recounting this Delsohn all of a sudden dashes off a few sentences summarizing the result of the trial:

In the end, sloppy police work hurt the prosecution. Because the crime scene was not thoroughly inspected the night of the fall—no search for additional blood was conducted, measurements weren't taken, the house was never treated like a crime scene—Don Heller, Tison's lawyer, was able to sow doubt in the jurors' minds about a number of elements in the case.

But what happened at the trial? Did the doctor testify? Did any of the background dirt about the doctor come before the jury, or was it ruled prejudicial? What was the prosecution's theory of murder at trial? The reader is left wondering what went wrong.

DELSOHN MAY NOT REALIZE WHAT HIS BEST MATERIAL IS, but he does, to his credit, recognize many of the most difficult challenges facing prosecutors. He pays particular attention to how prosecutors decide which cases to pursue, an important subject not frequently explored. The police investigate crimes and make arrests; one of the principal duties of a prosecutor's office is to decide which of those arrests will become court cases. In effect, the prosecutor who makes the charging decision is the gatekeeper of the criminal courts. Frequently law enforcement's assessment of the facts differs from that of the assistant district attorney.

"As anyone who's been around the criminal-justice system for very long knows," Delsohn writes, "the idea that all law enforcement agencies are brothers and sisters in arms united in their fight against the bad guys is a myth. Much of the time they're stabbing each other in the back for credit, press coverage, resources, control." This certainly seems true in Sacramento, a county where the elected sheriff holds press conferences in high-profile cases even when the excessive publicity might hinder the prosecution. In August 2001, Nikolay Soltys, a Ukrainian immigrant with a history of mental illness, killed his wife, son, aunt, uncle, and two cousins. Sheriff Lou Blanas held around-the-clock news briefings in spite of having nothing to report. After Soltys's arrest, Jan Scully specifically asked him not to release details of the crime in order to avoid a change of venue. When The Sacramento Bee ran an article the next morning detailing the investigation results, citing unnamed sources from the sheriff's department, no one in the district attorney's office was surprised.

The level of tension may be even greater in San Francisco, where the relationship between police and the district attorney's office is decidedly dysfunctional. Not long ago, my office prosecuted the chief of police and other members of the department brass for allegedly covering up police misconduct in a street brawl between three off-duty officers (one the son of an assistant chief) and two civilians, apparently over a bag of fajitas. A delay in testing the off-duty officers for intoxication, the failure to sequester them to prevent them from coordinating their stories, and the reassignment of the investigating officer after he complained about stonewalling led a grand jury to believe that the police were protecting their own. Despite being advised by the prosecutors that there was probably insufficient evidence to charge anyone for obstruction of justice, the grand jurors went ahead and indicted the police chief and others in the chain of command. The charges were eventually dropped. But the damage to the already fragile relationship between the city's law enforcement and its prosecutors had been done.

WHILE DELSOHN GIVES D.A. OFFICE PERSONALITY CONFLICTS their due, he fails to provide compelling portraits of the characters he spent a year observing. Of Jan Scully, we learn only basic details: that she is a tall, thin woman with a cautious nature who was 44 when first elected D.A., after an unexceptional tenure as supervisor of the sex-crimes division. Scully seems to have a solid grip on her job—she ran unopposed in her second term—but, like any D.A., she is not immune to political pressure.

Delsohn is more at home covering politics than people, and it is politics, in his account, that dominate Scully's decision-making process in the Opsahl case. Her office believed that the only reason the Los Angeles prosecutors had pressed so hard in the case was to get enough leverage to wrangle a guilty plea out of Soliah in the car bombing case, which Scully, like her predecessors, considered weak. And with good reason: The one witness who saw Soliah purchasing blasting caps before the attempted bombing died before her arrest; the only other identification witness, a police officer who was an intended victim, first made mention of seeing her at the scene after her 1999 arrest and subsequently filed a civil lawsuit against her as well.

Scully resisted the pressure from Los Angeles and the Opsahl family to file charges. But when Soliah pleaded guilty to aiding and abetting the SLA in the bombing, the pressure on Scully rose. Dr. Opsahl ramped up his campaign to get the Sacramento D.A. to go forward with its case. Sheriff Blanas began rumbling about bypassing the D.A. and obtaining a warrant from a judge to arrest the SLA suspects. Scully was forced to file the charges. In the end, Soliah pleaded guilty in exchange for a sentence of approximately three and a half years in prison for her part in the murder.

Jon Opsahl blessed this somewhat lenient deal, but less because he thought it appropriate than because he was no longer in a position to protest. Opsahl had found himself in legal trouble for dispensing prescription drugs over the Internet without conducting the necessary patient examinations, and his attitude toward the Sacramento D.A.'s office changed rather abruptly.

It's rare that winning a case is truly satisfying, either for the victim or for the prosecutor, and this may be the most difficult part of my job. I take no pleasure from the punishment meted out to a defendant; getting someone sentenced to prison doesn't make me want to celebrate. And what constitutes winning a case depends largely on where you're sitting. In the Bryant Street Locos rape case, the judge sentenced each of the defendants to six years in prison. The victim was upset that they didn't get more time. She hasn't spoken to me since.

Wade Chow is a prosecutor in the San Francisco district attorney's office.

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