DA'S 'THREE STRIKES' TROUBLE\Garcetti's handling of law criticized.

Byline: Janet Gilmore Daily News Staff Writer

In the two years since the "three strikes" sentencing law went into effect, Los Angeles District Attorney Gil Garcetti boasts that he has put more repeat offenders in prison than anyone else in California.

But of the 4,579 cases filed by his office, more than a quarter have been reduced by line prosecutors for a variety of reasons: evidence problems, the inability to prove prior felony convictions - and, in some cases "in the interest of justice," according to Garcetti's office.

As the accused defend themselves vigorously against charges that could put them in prison for 25 years to life, the costs of prosecuting the more complex cases have escalated - forcing the county to seek $169 million in reimbursements from the state.

Criminal courts have become backlogged under the case volume. Criticism has mounted over whether Garcetti is pressing "three strikes, you're out" prosecutions to clear the streets of repeat offenders - or to make a political point about aspects of the law he opposes.

Last week, a judge accused Garcetti of "gross abuse of prosecutorial discretion" in seeking a life prison term for a homeless man facing his third strike for allegedly possessing three-tenths of a gram of cocaine. The man was acquitted by a jury.

Superior Court Judge David Yaffe said, "The evidence in this case was so weak that to prosecute it at all was questionable. To make it a case involving life imprisonment was grotesque."

Yaffe's comments came two days before some deputy district attorneys moved to ask the state attorney general to investigate Garcetti's handling of a different "three strikes" case.

In that case, prosecutors reduced charges against the grandson of one of Garcetti's campaign contributors, allowing the man to escape prosecution under the "three strikes" law.

Garcetti denied any favoritism toward the grandson of contributor Bernard McMorrow and said he would welcome the investigation.

Garcetti also defended his policy of filing all eligible "three strikes" cases, something he said state law demands, and giving prosecutors discretion about how far the cases should be pressed.

"We're taking this law, and we're using it the way I think the people intended it to be used," Garcetti said in an interview last week. "People say we don't use our discretion. Well that's a bunch of BS."

While Garcetti is aware of the perception that he helped create the county's "three strikes" fiscal woes, the county's top law enforcement officer said his critics have not checked the facts.

His office has filed 4,579 cases involving third-strike offenders since the law began, according to Garcetti's office. Of those cases, 2,370 have been closed - and prosecutors got a strike 47 percent of the time.

Figures were not available for second-strike offenders.

Suzanne Childs, a spokeswoman for the District Attorney's Office, said that strikes are dropped for reasons that include problems proving the defendant's prior convictions, unanticipated problems in proving the current offense and, in some cases, because many years have passed between the last offense and the current one.

Garcetti contends that his overall enforcement policies are consistent with the majority of other county prosecutors in the state and that Los Angeles is suffering more dramatically because of its unparalleled workload and population.

Under "three strikes," people convicted of a third serious or violent felony automatically receive 25 years to life in prison. Defendants convicted of a second strike also receive harsher terms under the law.

Because these cases carry such stiff penalties, requiring that at least 80 percent of the sentence be served before release, they are taking longer to get to trial, with many defendants holding out for a jury trial.

Even plea agreements often occur later in the process, said Los Angeles County Public Defender Michael Judge, because attorneys have to verify priors and seek out legal challenges to them.

He questions whether the time, energy and money is all worth it, given that about 75 percent of offenders' latest alleged strikes do not involve a violent or serious felony.

Craig Cornett, director of criminal justice for the state Legislative Analyst's Office, said there are differences in how prosecutors are enforcing the law county to county.

He said the impacts of aggressive enforcement ring clear.

"I don't think there is any question about it," Cornett said. "I think definitely there is a correlation there. If you file everything and waive no priors (offenses) you are creating more cases and creating more fiscal issues."

The safety net in the "three strikes" law, said Mike Reynolds, the law's co-author, is the discretion handed to prosecutors in filing cases and dropping strikes in the interest of justice.

Reynolds said each county prosecutor must consider their local finances, their interests and the merits of each particular case and act accordingly.

"We want it used in an intelligent way," Reynolds said. "It's a tool, (just as) a hammer is a tool: A hammer can build a fine house; you can also hit yourself in the thumb with it."

During the 1994-95 fiscal year, Los Angeles County officials said, enforcement of the new law cost taxpayers about $101 million. For the next fiscal year, they anticipate a jump to $309 million.

Garcetti, who frequently voices complaints about the law's back-breaking effects, makes a point of noting that he predicted such problems and lobbied against the proposed law before it went into effect in March 1994.

He spoke before a committee hearing in Sacramento but failed to muster support for an alternative law that would have only required that violent and serious felonies be treated as strikes, not all felonies.

Now, Garcetti suggested, he would come under fire if he did not file all such cases.

"You would be coming in here and criticizing me for violating the law and the interest of the people," Garcetti said.

San Francisco Public Defender Jeff Brown said application of the new law is a matter of interpretation.

"It's kind of like whether you're going to interpret the Old Testament literally or not," he said, suggesting that prosecutors can adhere to the spirit of the law without clogging their court system.

It was a point raised by Yaffe, who castigated Garcetti on Monday after Michael Newhouse was acquitted of cocaine possession - a charge that could have put the defendant in prison for life.

Yaffe, who normally handles civil cases, complained that the "three strikes" cases have overburdened prosecutors, public defenders and the criminal caseload to such a point that judges like him have to handle criminal, rather than just civil, cases.

He also questioned whether Garcetti is properly exercising his discretion.

"This case constituted a refusal by the district attorney to exercise the discretion that is vested in him by law and is part of his job," Yaffe said in court, according to transcripts.

"If he refused to exercise that discretion, which is discretion not to charge one or more of the prior offenses as strikes, because he is afraid of the public reaction, then he's a craven coward who is afraid to do his sworn duty.

"If he refused to exercise his discretion because he's trying to demonstrate that the 'three strikes' law does not work, then he is an arrogant bureaucrat who is trying to make fools of the 70 percent of Californians who voted for that law," Yaffe said.

Yaffe has refused to comment to reporters about his remarks.

Outraged by the comment, Garcetti said he called on the judge Friday, as well as three of Yaffe's superiors at the court.

Garcetti said he furnished the judge a copy of his office's guidelines related to "three strikes" that explained how his prosecutors frequently strike prior offenses.

Garcetti said he also told the judge that Newhouse had a serious history of criminal activity.

In addition to Newhouse's two felony burglary convictions a decade ago, the defendant violated parole on four separate occasions between 1989 and 1992, was convicted of misdemeanor burglaries in 1992 and 1993, and was convicted for receiving stolen property in 1994, Garcetti said.

"We have a revolving-door criminal here," Garcetti said.

But in another case, Garcetti has come under fire after charges were reduced against Brian McMorrow, a two-time convicted robber.

McMorrow faced a "three strikes" sentence for allegedly pouring gasoline on cars. Garcetti said the charge was reduced from attempted arson to attempted vandalism after judges suggested it would be difficult to prove attempted arson.

However, Garcetti acknowledged that he took an interest in the case after he was contacted by McMorrow's grandfather, Bernard McMorrow, who had given $13,000 to Garcetti's 1992 campaign.

Garcetti said he asked Assistant District Attorney Frank Sundstedt to look into the case to make sure the charge fit the severity of the crime. Sundstedt said the charge was appropriate, Garcetti said, and he subsequently called Bernard McMorrow to tell him the charges would remain.

It was only after judges questioned the charges that they were reduced, Garcetti said.

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Photo Gil Garcetti Defends use of discretion