By Charles L. Lindner
Past President of LA Criminal Bar Assn

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 4^th Amendment'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 4^th 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." (The police are so ardent about catching law-breakers, they imagine that it is okay for them to violate the law when they feel like it. WFI Editor)

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. (If the law-enforcers fail to abide by the law, then the society in general is lawless. This is hard evidence that the police believe that they are above the law, and entitled to make it up as they go along, and carry out only that which upholds the interests of the police as the dominant institution of the state. WFI Editor)

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 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 the 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.

SOURCE: Reprinted from the 26 April, 1998, issue of the Los Angeles Times, Orange County Edition, OPINION section. Reprinted in the public service of the national interest of the American people.