He also wanted to take the time to phrase his ruling in such a way as to make it understandable to the literate public as well as to lawyers and appellate judges. It was beyond his proper role to speculate publicly on the motives, or lack of them, behind Kelly’s motion and the D.A.’s concurrence in it, whether it had been prompted by a lack of will or by fear of losing a highly publicized case, or by neither, or by a combination of both. But he did want to spell out in plain English his concern with what he regarded as a grave error by the District Attorney’s Office in asking him to turn loose Angelo Buono without a trial. This, the judge believed, would be a misuse, even a circumventing, of the judicial process, and whatever the motives behind it, it suggested to the public an indifference to the most serious of crimes. Had society reached the point, the judge wondered to himself, where it no longer cared to defend itself? Had the murder rate in Los Angeles so numbed people that they were willing to acquiesce to killing as a part of the culture, like going to the movies and the beach?
As he worked on the ruling, the judge felt entirely isolated. No one outside his family, not a single broadcaster or reporter or columnist, was anticipating anything but his granting of the D.A.’s motion. Police Chief Gates had told D.A. Van de Kamp that he was getting bad advice and should reconsider aspects of the case, but this exchange had occurred in a private meeting, and the judge did not know whether he had a single ally in legal circles. One television commentator, Baxter Ward, a theatrical former county supervisor with a portentous, old-style radio announcer’s voice, began attacking the judge ad hominem in anticipation of the ruling, saying that this was the judge who was going to set Angelo Buono free. His guess as to how the judge would rule was consistent with everyone else’s.
On the morning of July 21, Angelo Buono, wearing a long-sleeved shirt to conceal his tattoos, entered a courtroom packed with newspeople. He swaggered to his chair before the bench, physically unchanged by his nine months in jail except that he was pale, and his hair showed a lot of gray, since he had been unable to dye it. His female counsel, Katherine Mader, whispered to him, slinging her arm around his shoulders. In the hallway outside the courtroom, cameras waited to convey his walk to freedom. Roger Kelly stared ahead, avoiding the contemptuous eyes of detectives. Salerno and Finnigan sat together off to one side, silent. Grogan exiled himself to a corner at the back, subdued by frustration. He had done some asking around about Judge George and had concluded that if any judge in the state might save the case, this was the one; but Grogan held out little hope, had already begun rehearsing to himself phrases of regret to the Wagners and the Wecklers, words he knew would stick in his throat.
All courtrooms are churches, the raised bench, so named since the Middle Ages, an altar of sorts; and as the robed priest of justice appears, the people rise as a congregation. That morning Judge George entered his courtroom and assumed the elevated place. He glanced down at the packed room through glum brown eyes set in a long, Manolete-medieval face, over a nose that veered toward the grandiose, and arranged before him a thirty-six page sermon. Gray hair made him appear older than his years, but he broke the silence with a youthful voice.
He began by citing the district attorney’s motion to dismiss each of the ten murder charges, emphasizing that the motion specified that it was made “without the likelihood of refiling”: without, in other words, the likelihood that Angelo would ever be tried for these murders. He noted that Buono, even if convicted on all eleven of the nonmurder counts, would serve less than five years, and he pointed out that the pending motions for dismissal and for bail “reach this court after twenty-two months of proceedings,” the preliminary hearing alone having lasted ten months; and he quoted the prosecutor’s statement of only two months earlier, in which Kelly had said, “We believe there is more than sufficient [evidence] to show presumption of guilt by Mr. Buono . . . and I think the evidence the People put on at the preliminary is sufficient to withstand any conviction, the jury believing Mr. Bianchi, and could convict Mr. Buono.”
At this point Grogan took a deep breath. Was it possible that in underlining Kelly’s former position in favor of prosecution the judge was getting ready to deny the dismissal motion? Grogan began to hope.
Judge George launched into a brief excursion detailing legal scholarship on the subject of the duty imposed by law upon a court in ruling whether or not to grant a prosecution motion to dismiss criminal charges. Citing various precedents, he summarized that “the common thread in this legal fabric . . . is the principle that a prosecutor has almost total discretion as to whether to file charges (and which charges to file), but that once he has made the decision to file charges the disposition of such charges is a judicial function.” It was the judge’s prerogative, in other words, to accept or not a motion to dismiss.
He then, again by way of reference to legal precedent and authority, reminded the District Attorney’s Office that it was charged with grave responsibilities which demanded integrity, zeal, and conscientious effort in the gathering and presentation of evidence. He quoted the American Bar Association’s standards for prosecutors: “In making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved or to a desire to enhance his or her record of convictions.”
At this point spectators in the courtroom may have remembered that District Attorney Van de Kamp was planning to run for the office of attorney general of California, and Grogan also thought of Roger Kelly’s pride in his record of convictions. Grogan now permitted himself something more than hope. He was beginning to believe that Judge George was going to rescue the case. The judge added that it was “the court’s duty to dismiss pending charges only if it is apparent that dismissal would be ‘in furtherance of justice.’ ”
Judge George now took up the matter of the persistent contradictions in Bianchi’s testimony, on which the motion to dismiss primarily rested. He accepted that there were such contradictions, but he concluded that “it is more significant that to the extent that Mr. Bianchi at any given time claimed personal recollection of a particular murder, the participants in the criminal conduct were always the same—Mr. Buono and Mr. Bianchi, and no one else. Furthermore, [Mr. Buono’s] potential guilt of first-degree murder would not depend [under California law] upon whether he had done the actual strangling (or had had forcible sexual relations with the victim) or had merely assisted Bianchi in doing so.” At no time, the judge pointed out, had Bianchi, in spite of his contradictions, ever represented that Angelo Buono was not involved in the homicides. Contrary to what Kelly had argued in his motion, no “novel infirmities” in the prosecution’s case had lately arisen: Bianchi’s flip-flopping had been a factor ever since his arrival in Los Angeles, and the prosecutor had been fully aware of the problem from the moment he had filed charges against Buono. “Basically the doubts and lapses which Mr. Bianchi expressed during the past several weeks amount to nothing more than a modest increment to the morass of contradictions which have characterized this case from its inception and which apparently left the District Attorney’s Office unmoved enough to be able two months ago to characterize its case as one in which the proof of guilt was both evident and sufficient to sustain a conviction on appeal.”
The judge then reviewed important evidence which the prosecutor had failed to mention in his motion to dismiss. Kelly had listed only the prior association between Buono and Bianchi, Catherine Lorre’s testimony, and the Judy Miller fiber evidence. (Kelly had said nothing about the Lauren Wagner fiber evidence.) The judge added to these Markust Camden’s testimony, and Deborah Noble’s, Jennifer Snider’s, and Antoinette Lombardo’s, as well as the testimony of the driver of the Foxy Ladies van, that of a waitress at the Robin Hood Inn, and that of a man who apparently had witnessed the abduction of Yolanda Washington from Sunset Boulevard, an incident that had involved the use of a police badge. The judge cited also the evidence of Buono’s wallet, which “has a cut-out area customari
ly employed in that type of wallet for the placement of a badge,” and Buono’s denial at the time of his arrest that he had ever owned a wallet, “possibly a false statement; if so, interpreted under the law as showing a consciousness of guilt.” All of this evidence was certainly enough to meet the legal requirement that the testimony of an accomplice be corroborated “by such other evidence as shall tend to connect the defendant with the commission of the offense. Case law establishes that such corroboration ‘may be slight and entitled to little consideration when standing alone. The requisite corroboration may be provided by circumstantial evidence.’ ” The judge added that convictions were routinely obtained on the corroborated testimony of an accomplice who had made inconsistent statements, and he cited the Manson case as one recent example. A jury would be free to decide which statements to believe and which to disregard.
Judge George now spelled out his conclusion:
This court has the authority and the obligation to deny a motion by the District Attorney’s Office to dismiss serious pending criminal charges where the court finds that dismissal would not be “in furtherance of justice.” . . . nor is it the function of the court automatically to “rubber-stamp” the prosecutor’s decision to abandon the People’s case. . . . Applicable standards indicate that a prosecutor must under ordinary circumstances pursue the prosecution of serious charges where there is sufficient evidence for a jury to convict, without concern for the consequences to his reputation should he be unsuccessful in obtaining a conviction.
This second reference to the possibility that concern for reputation had motivated the motion to dismiss made Grogan want to cheer. The judge then employed language more stinging:
This court would be abdicating the responsibility of its office were it to permit the District Attorney to abort this massive and costly three-and-a-half-year investigation.
It would be “spurious,” the judge proclaimed, to dismiss the charges on the theory, as suggested in the motion, that new evidence might turn up later, since the motion had been submitted “without the likelihood of refiling,” as the prosecutor himself had stated. Furthermore it would be “disingenuous” to suggest, as again the prosecutor had, that the murder charges be dismissed lest an acquittal on them have a negative effect on the trial of the nonmurder counts. “Disingenuous” was the judge’s carefully chosen word here for “phony.” In a dignified but sharp way, the judge was accusing the prosecutor of slinging bull.
The court’s decision is that our legal system should be permitted to run its normal course by appropriate submission of the issue of guilt or innocence to a jury selected from the community rather than leaving that issue to the disposition of the District Attorney as final arbiter of the case. . . . If in fact [this court’s] obligation is merely to perform the ministerial function of giving “rubber stamp” approval to the District Attorney’s decision to abandon this murder prosecution, let an appellate court so instruct this court. . . . This court finds that dismissal of the ten murder charges pending against defendant would not be “in furtherance of justice,” and the District Attorney’s motion to dismiss those charges is hereby denied.
Finally the judge took care of the matter of the reluctance of the District Attorney’s Office to prosecute. He fully expected a vigorous and effective resumption of prosecution, he said, but:
. . . should such action not be forthcoming from the District Attorney’s Office, this court has authority to deal with that contingency by referring the case to the Attorney General . . . or under certain circumstances by appointing a special prosecutor.
The sermon was over. It had taken the judge an hour and ten minutes to read it out. Its message was sufficiently unusual to cause some initial confusion, but the confidence of his tone and the persuasiveness of his logic were quickly apparent, nowhere more evident than in the simple phrase “this court has authority,” an assertion no one was prepared to doubt. It was as though a second-strike victory had been declared in a kind of legal war, one with strong political consequences, although politics had not played any part in the judge’s motives. His denial of the motion was a slap in the face not only to Roger Kelly but to John Van de Kamp, whose office the judge, not subtly, was accusing of” delegating to Bianchi the prosecutorial responsibility for defendant’s case by allowing Bianchi to scuttle the case.” Words such as “scuttle,” “spurious,” and “disingenuous” were not mild, nor had they been meant to be mild. And the judge’s calm affirmation that he was prepared to turn over the prosecution to the attorney general or to a special prosecutor was especially provocative. John Van de Kamp was a Democrat who was running for attorney general, a post then held by George Deukmejian, a Republican who was running for governor.
Judge George gave Van de Kamp two weeks to decide whether to resume prosecuting Buono. If Van de Kamp withdrew and Deukmejian’s office decided to take over the case, it might appear as though the whole matter had degenerated into a political issue, one that might play a role in the 1982 campaign. If the Republican attorney general won the case before the election, it would make the Democratic candidate for that office look weak and help Deukmejian to the governorship. If Deukmejian lost the case, Van de Kamp and Kelly would be vindicated, Deukmejian would look foolish, and the Hillside Stranglers case would become known as Judge George’s folly.
Judge George regretted the political implications, because he wanted nothing to detract from the only important issue, which was justice. But controversy he neither courted nor shunned. Personally he enjoyed the composure of a man who had done the right thing, and in some respects the hullabaloo his action caused did not bother him. Perhaps a side effect of all the charges and countercharges would be to heighten public regard for the criminal justice system, which appeared to many to have become paralyzed by trivialities; and perhaps the legal community, which had become an arrogant society unto itself, might come to focus for the moment more on justice than on the law, which had become less the instrument of justice than, as it were, its strangler. With all this in mind, the judge repeated the statutory phrase “in the furtherance of justice” several times over in his ruling. For all its length and scholarship, the ruling had a bracing simplicity to it, like “Thou shalt not bear false witness against thy neighbor.”
JUDGE NOT KNOWN FOR CONTROVERSY
announced the Los Angeles Times the next morning, calling the judge’s action “extraordinary. Such prosecution motions are normally granted as a matter of course.” Lawyers were quoted saying they could not remember in their experience a similar ruling. References to the balance of power abounded. “Nothing in George’s background,” the Times reported, “predicted this surprise rejection. . . . He simply had no track record of going against convention. Prosecution and defense lawyers were in agreement that the 41-year-old-jurist was a scholarly, fair-minded judge. . . . Deputy Dist. Atty. Roger Kelly agreed, saying, ‘I’ve always respected him and admired him, at least until today.’ ”
As for Angelo, he and his attorneys had to cancel their plans for a celebratory dinner.
“Mr. Buono has been on the brink of victory so many times,” Katherine Mader said, “that he just doesn’t show any emotion and he probably won’t until he walks out having been found innocent of being the Hillside Strangler.”
TWENTY-TWO
When Judge George denied the motion to dismiss murder charges against Angelo Buono, the city was deeply affected. Television and radio editorials endorsed the judge’s courage, although the L.A. Times made no comment, and he received many letters of praise. Within the legal community, however, opinion was divided over whether he had performed a courageous act or an arrogant one. Lawyers and judges who objected to his decision did so on the grounds that he had upset “the system,” even though the judge had stated in his ruling that without a trial Angelo Buono’s guilt or innocence could never be established by means of the criminal justice system itself.
His opponents argued that he was improperly assuming a prosecutor’s role. On
e politically prominent lawyer, a former federal judge, suggested privately that while it was difficult for people to understand why the judge had acted improperly in this case, given the vicious crimes involved, what if the defendant were Martin Luther King or Sacco and Vanzetti, who might be subject to the prejudices of a judge? If a prosecutor moved to drop charges, it was wrong for a judge to question that decision and amounted to a violation of judicial neutrality.
Judge George did not respond to such criticisms publicly, except to cite the ample authority for his unprecedented action. Privately he pointed out that while his every decision was subject to appeal, his critics were suggesting that a prosecutor should have absolute discretion and not be subject to the same kind of scrutiny. Surely this was an unbalanced notion, all the checks on one side and none on the other. And to raise at all in this case the issue of political or racial bias was a red herring, symptomatic of the kind of mentality that perceived all criminal defendants as victims. If the judge was not a prosecutor, neither should the prosecutor be the judge.
The central issue here was, as Judge George saw it, not whether the judge was stepping beyond his proper role but whether the prosecutor was performing with the vigor mandated by the constitutional responsibilities of his office. Where would society be if something called the system, itself a precious yet imperfect human construct, subject to all the errors of which the people who worked within it were capable, were permitted to become an impediment to justice?
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