L.A. Times | February 17, 1999
In what could be a fatal blow to prosecutors' efforts to return former Black Panther Party leader Elmer Gerard "Geronimo" Pratt to prison, a state appellate court Tuesday unanimously upheld a judge's decision overturning Pratt's 1972 murder conviction.
Orange County Superior Court Judge Everett W. Dickey threw out that conviction in 1997, ruling that the Los Angeles County district attorney's office had concealed evidence that could have led the jury to reach a different verdict.
Los Angeles County Dist. Atty. Gil Garcetti appealed Dickey's decision, but the 2nd District Court of Appeal rejected prosecutors' arguments, saying that "the order granting Pratt's petition . . . was properly granted."
"We expected to win, but it's always nice to know you're right," San Francisco attorney Stuart Hanlon, Pratt's lead appellate lawyer, said Tuesday.
Pratt spent 25 years in prison—and two additional years in jail awaiting trial—for the 1968 murder of schoolteacher Caroline Olsen and the attempted murder of her husband, Kenneth, during a robbery that netted about $18 for two bandits.
Garcetti's office declined to comment on the decision Tuesday, saying that the district attorney will hold a news conference at 12:30 p.m. today to announce whether he will appeal to the state Supreme Court, retry Pratt or simply drop the case.
The appellate court did not address Pratt's guilt or innocence, confining itself to the question of whether he received a fair trial.
Many legal observers urged Garcetti not to appeal Dickey's 1997 decision, saying that it is time to put a 30-year-old case—burdened by serious questions of fairness and official misconduct—to rest.
Laurie Levenson, associate dean of Loyola Law School and a former federal prosecutor, said Tuesday that Garcetti's "only realistic option is to close the books."
She said that while public opinion was against Pratt during his trial, "the defense has done a brilliant job of making him a folk hero."
Two legal experts predicted Tuesday that Garcetti will not pursue the case any further.
"He's done what he has perceived as his duty to his troops," defense attorney Gigi Gordon said. "I don't believe [the appeal] was anything other than that."
Garcetti's chances of winning at the Supreme Court level are slim, according to Gordon.
"[These] petitions are granted so rarely, that when they are granted, it's a good indication, especially with such conservative justices, that the case was flawed," Gordon said.
One state court judge, who asked not to be identified, speculated Tuesday that the state Supreme Court would not even agree to review an appeal of Tuesday's decision.
"This decision should put an end to the criminal part of this case," Hanlon said. "If Garcetti has any brain, this is the end—a 3-0 decision affirming an Orange County conservative judge."
Johnnie L. Cochran Jr., who defended Pratt at his murder trial and worked on his appeals, said Tuesday that he hopes the appellate court decision "is the very end of this nightmare. [Prosecutors] were wrong in 1972. They were wrong in appealing. They have been wrong all along."
Garcetti has acknowledged that retrying Pratt would be very difficult. That difficulty has been increased now that an appellate court has upheld Dickey, who ruled that key prosecution witness Julius Carl "Julio" Butler was a police informant who lied on the witness stand.
Pratt, who was implicated in the crime by Butler, a disgruntled ex-Panther and former Los Angeles County sheriff's deputy, always maintained that he was in the Bay Area attending party meetings Dec. 18, 1968, when the robbery and murder occurred on a Santa Monica tennis court.
Seven years after Pratt's conviction, FBI documents released under the Freedom of Information Act revealed that Butler had been providing information to the bureau and to Los Angeles police for at least three years before Pratt was tried.
Neither Pratt's jury—which twice reported itself deadlocked and deliberated 10 days before reaching a verdict—nor his defense attorneys knew of Butler's activities as an informant.
As Pratt's sixth legal effort to have his conviction overturned was making its way through the courts in 1996, a district attorney's office investigator found that his own office had listed Butler as a confidential informant in January 1972, six months before Pratt's trial.
Butler also told the investigator that employees of the district attorney's office had given him $200 to buy a gun.
Such information, had Pratt's attorneys been aware of it, would have "permitted potentially devastating cross-examination," Dickey wrote in his opinion reversing the conviction.
In upholding Dickey's ruling, the appellate court cited questions Butler could have been asked during the trial if Pratt's defense attorneys had known of his activities. Quoting the oral argument of Mark Rosenbaum, one of Pratt's appellate lawyers, the appellate justices said:
"Mr. Butler: . . . What about the D.A.'s office, the same office that vouched for you, that said you were not an informant, that told [Johnnie Cochran], 'He was not an informant.' . . . Well, didn't that same office consider you a confidential informant by listing you on an informant card? Didn't they give you $200 to buy a gun? Didn't they let you carry a gun around?"
Rosenbaum, legal director for the American Civil Liberties Union of Southern California, also argued that Pratt's lawyers could have asked Butler who "brokered your deal," allowing him to plead no contest to four serious felonies for which he received only probation.
"Who did that for you, Mr. Butler? Is it the same people who are saying that you are not an informant?" the appellate court decision said, quoting Rosenbaum.
Writing for the three-judge panel, Justice William Masterson said: "Cross-examination has been described as the 'greatest legal engine ever invented for the discovery of the truth.' Absent information on which that cross-examination could be based, Pratt was not in a position to effectively use this right in an attempt to undermine Butler's credibility."
Justices Vaino Spencer and Miriam A. Vogel joined Masterson in the decision.
Pratt, who has moved to his hometown of Morgan City, La., could not be reached for comment. Cochran said he was in New Orleans celebrating Mardi Gras.
Copyright 1999 Los Angeles Times.