by Michael Nava
I heard about one incident from one of the lawyers who had worked on the case. In the late 1960s, a group of middle-class white liberals formed an organization to raise money for the Black Panthers. After several months of harassment that included the rape of a member, they were approached by a man named Jarrett who claimed to be an ex-Green Beret and offered to teach them self-defense. He was, in fact, an undercover LAPD officer. Jarrett agreed to provide the group with Mace for self-protection, but instead he delivered an explosive. LAPD then raided the home of the member to whom Jarrett had delivered the bomb and the member who had paid for the delivery. They were arraigned on federal charges of possession of an explosive. Jarrett claimed they had purchased the bomb to pass along to the Panthers. The defense argued entrapment and the charges were dismissed.
The current chief, Daryl Gates, had come up through the ranks in the Parker and Davis years and was no less a right-wing racist. But he’d been forced to disband PDID after a series of lawsuits exposed the unit’s misconduct. The ’84 Olympics had given him an excuse to revive it as the ant-terrorism unit. The new unit’s activities continued to be conducted in secrecy, its targets unknown and its techniques no doubt as illegal as they had been for the previous forty years.
Gates didn’t make Davis’s mistake of parading his contempt for gay people in public by calling us names, but his refusal to even consider hiring openly gay and lesbian cops made his personal attitude clear enough. Would his department have sent an agent provocateur to stir up trouble in QUEER? Oh, absolutely.
••••
The phone message at the top of my pile of messages was from Ralph Novotny. I caught him on his way out the door to court.
“Your two weeks is up,” he said, curtly. “The death penalty committee meets this afternoon on the Latour case. If you’ve got something to tell me, now’s the time. I have five minutes.”
“I need another week.”
“No can do.”
“I’m on to something, Ralph. Give me another week.”
“Sorry, Henry. If the committee recommends death and you come up with something later, we can revisit it. I’ve got to go. You’ll have our decision tomorrow morning. I have to tell you, though, I’m pretty sure it’s going to be death.”
••••
The next two messages were from Freeman. He picked up on the first ring.
“It’s Rios. You have news?”
“I found the meter maid from the airport. She remembered Saavedra, all right, because she’s never dealt with an undercover cop before.”
“So, Saavedra is a cop,” I said, excitedly.
“Yeah,” he said, “but his name isn’t Saavedra. It’s Sumaya. Alfredo Sumaya. Assigned to the anti-terrorism unit.”
“Get me every detail you can on him that I can throw into a discovery motion,” I said. “I need it fast, Freeman. The DA’s going to seek the death penalty.”
“What’s your defense going to be?”
I’d carefully studied the Black Panther case where the defendants had been exonerated, and it had given me a tactic I thought might work for Theo.
“If you find me what I need, entrapment.”
••••
Entrapment is a tricky defense. In TV lawyer shows, all you need to prove entrapment is that the undercover cop whispered in the defendant’s ear like a little devil perched on his shoulder, “Go ahead, do it.” As the texts laid out before me on a long table in the dignified silence of the county law library showed, however, the defense was considerably more complicated. The California Supreme Court had laid out a two-part test to succeed in the defense: The proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense. Part one: did the cop’s conduct encourage the commission of the crime. Part two: was the conduct so outrageous it would have induced, not my client, Theo Latour with all his psychological tics and emotional problems, but a reasonable, law-abiding person to commit the crime.
Regarding the cop’s conduct, there were two additional standards. On the one hand, Entrapment is the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. On the other hand, the police were allowed to provide the opportunity for the commission of a crime including reasonable, though restrained, steps to gain the confidence of the suspects. In other words, the question was just how far could you lead the horse to water before you were on the hook when the horse drank? Had you grabbed its bridle, dragged it to the stream, and shoved its head in the water (entrapment) or simply pointed in the direction of the stream (not entrapment)?
Plus, words being what they were, and lawyers being who they were, a phrase like “reasonable, though restrained steps” was open to multiple interpretations, some better for the defense, others for the prosecution. Who would decide which interpretation was correct? That would be the least qualified group in the courtroom: the jurors.
There was also a tactical challenge in asserting an entrapment defense in this case: Theo would have to testify. He was the only witness who could describe to the jury the nature of “the trickery, persuasion, or fraud” of Alfredo Sumaya, a.k.a. Freddy Saavedra. Then, there was the fact that the so-called “reasonable man” standard in the entrapment instruction really referred to the “reasonable heterosexual white man.” Not women, not Latinos, not African-Americans or any other ethnic or racial group and certainly not gay people, each of whom had discrete histories of oppression that left them open to forms of trickery, persuasion, and fraud that wouldn’t affect your average straight white guy.
Theo would have to convince the jury that Saavedra had appealed to his rage, shame and self-loathing, not only as a gay man, but as one infected with HIV, to persuade him to blow up a church. I could imagine a bigoted juror thinking Theo should be ashamed of, and hate himself for, being a faggot with AIDS, and voting to punish him for that, no matter how outrageous Saavedra’s conduct.
Anyway, Theo’s testimony would not be enough— even before the prosecutor got a chance to rip him to shreds. I needed corroborating, objective evidence to support Theo’s claim that Saavedra had been the moving force in the bombing. Even then, there would be other needles to thread to get an acquittal based on entrapment, not the least of which was that the defense would ultimately force the jury to choose who was responsible for Daniel Herron’s death, a police officer or a gay, HIV-infected ex-porn actor.
The day before, while shopping for groceries, I had noticed the headline on the cover of a national magazine in the magazine rack at the checkout stand that blared: NOW NO ONE IS SAFE FROM AIDS. Beneath the headline were three photographs: a young woman, a young straight couple holding an infant, and a uniformed soldier.
Clearly, I needed a Plan B.
••••
“You’ll like this.”
Freeman pushed the file across my desk toward me while I pushed the ashtray toward him. He lit up. The folder contained Freeman’s one-page typewritten summary and supporting documents.
Freeman’s summary consisted of a single paragraph: Alfredo Sumaya, b. Nov. 12, 1955 in LA. U.S. Army, 1973-1978, explosive ordnance disposal specialist. City College, criminal justice degree, 1980. Joined LAPD 1980, patrol to ’83. Assigned to anti-terrorism unit, 1984-present. Single. Residence and whereabouts unknown.
“He defused bombs in the army,” I said, glancing at his army records. “Does that mean he was also trained in how to make them?”
“He had to know what he was looking for,” Freeman replied, blowing out a stream of cigarette smoke.
“He went from being a beat cop to the anti-terrorism unit?”
“Some higher-up decided they needed his expertise for the Olympics.”
“At what point did he go undercover?”
“You’ll have to find that out in discovery.”
“Y
ou don’t know where he is?”
“Standard for undercover cops,” he replied. “The department shields them so they don’t get made and to avoid retaliation. But, trust me, he’s somewhere in the city and the department knows where. Is this enough for you to start?”
“Oh, yeah. This is excellent, but keep on it, okay? See what else you can find out about what he does off the job.”
“Sure,” he said, stubbing out his cigarette. “I tracked down the last employee who was working at Home Depot where they bought the stuff for the bomb. She recognized the guys in the photo but can’t say when she saw them.”
“That’s something, anyway,” I said. “What about the security guard at the church?”
“Yeah, about that. I took two steps on church property and three security guards stopped me and asked me what I wanted. I told them and they, uh, politely directed me to leave.”
“Never mind,” I said. “I’ll subpoena the church’s records in discovery and find out the name of the security company and who it employs at Ekklesia.”
“You give me that list of names,” he said. “I want another crack at those boys.”
••••
“People versus Latour,” Judge Mayeda intoned. “We’re here on the defense’s motion to compel discovery.” He looked up from his file, puzzled. “It’s a little early for this motion isn’t it, Mr. Rios? Surely, the People haven’t had enough time to respond to your discovery request.”
Unlike the full house at Theo’s arraignment, Mayeda’s courtroom was empty except for Novotny, me, and the court staff. Empty courtrooms are where most of the real work gets done in any criminal case. The pretrial motions, counter-motions, and rulings define the playing field for the trials, if a case even gets that far since most criminal matters plead out, also in empty courtrooms.
Discovery was the defense’s opportunity to assess the strength of the prosecution case by forcing the DA to disclose its evidence. It was so crucial to a defendant’s right to a fair trial that the Supreme Court had long held the prosecution’s failure to disclose key evidence in discovery was grounds for dismissal.
A defendant was required to submit a detailed and specific list of items he or she was seeking and show their relevance to the defense. The requests could run into a hundred pages or more, but the request that had brought us to Mayeda’s court was short and to the point. I wanted information regarding a single person, Officer Alfredo Sumaya a.k.a. Freddy Saavedra. I had served the request on Novotny one week earlier. Two days later I had received a letter from the DA’s office categorically rejecting it, no reason given.
When I had asked Novotny before Mayeda came out why he’d turned me down, he made a sour face and muttered, “I’m being stonewalled, too.”
“By the cops?”
“Can’t say more, Henry. Let’s just do this and see what happens.”
Now, addressing Mayeda, I said, “Your Honor, this is not a general discovery request but a very limited and specific one involving an individual who will be crucial to the defense, particularly since the prosecutor is seeking the death penalty. The prosecutor has flatly refused to comply with our request without any reason, forcing me to file this motion to compel.”
Mayeda flipped some pages in his file. “You want information about a police officer named Alfredo Sumaya. Is this a Pitchess motion?”
“No, Your Honor,” I said. “I’m not asking the prosecutor to disclose if there have been any excessive force or other citizen complaints against Officer Sumaya— not yet, anyway. All I want to know now is, one, whether he exists, two, whether he works undercover in the anti-terrorism unit and, three, whether he was assigned to infiltrate an organization called QUEER, and the dates of that assignment.”
Mayeda stroked his little moustache and asked the prosecutor, “Mr. Novotny, care to respond?”
“Your Honor, in the interests of officer safety, we cannot comply with the request.”
Mayeda frowned. “Officer safety? Are you saying if you disclosed this information, Officer Sumaya would be in some kind of danger?”
“That’s our position, yes.”
“In danger from whom?”
“I can’t say, Judge.”
Mayeda frowned. “Can’t say or won’t say?”
“Your Honor,” I interrupted, “if the prosecutor continues to reject my discovery request, my next motion will be to dismiss under Brady.”
The mention of Brady v. Maryland raised Mayeda’s eyebrows. Brady is the Supreme Court case that holds that prosecutors are under a constitutional obligation to disclose any evidence that might tend to show the defendant’s innocence; the legal term of art was exculpatory evidence. By introducing the principle, I’d kicked up the stakes considerably because the DA’s refusal to turn over such evidence required automatic dismissal of the case.
“Are you saying this is potentially exculpatory of your client?”
“Absolutely, Judge.”
“Will you make an offer of proof?” Mayeda asked.
“Not in open court.”
“All right,” Mayeda said, “you and I will discuss this in chambers. We’re in recess. Mr. Novotny, stay put.”
••••
Mayeda’s chambers had an impressive view of the downtown skyline, but was otherwise merely functional. With its wood-paneled walls, fluorescent lights, and institutional carpeting, it could have been the office of a mid-level bureaucrat in the Department of Water and Power. Nor had he added many personal touches beyond the usual framed diplomas— Berkeley undergrad and USC law— and the obligatory plaques handed out like candy by various bar associations; no profession is as self-congratulatory as the law. The exception was a colored woodblock print that hung on the wall opposite the window. It was recognizably Japanese in technique and there was the familiar snow-capped mountain in the background, but in the foreground were a series of barracks-like buildings facing snowy streets.
“An internment camp?” I guessed as we sat down, he behind his uncluttered desk, me in the vinyl-covered chair across from him.
“Heart Mountain in Wyoming,” he replied. “My parents met there while their families were interned.”
“Heart Mountain,” I repeated. “A beautiful name for such a cruel place.”
“But not inappropriate, perhaps,” he mused. “Heart Mountain was one of the centers of resistance against the draft by young Nisei men.”
“Nisei?” I queried.
“It means second-generation and refers to the American-born child of Japanese immigrants. People like me, third generation, are Sansei. A number of Nisei men refused to be drafted until their families were released from the camps. They were arrested, prosecuted, and imprisoned. One of my uncles was among them. The older generations rarely speak of the camps, so I keep this as a reminder.”
“A reminder of?” I prodded.
“The fragility of the law. Now, Mr. Rios, tell me why I should order the prosecution to disclose information about this undercover officer.”
“Your Honor, my client told me that this officer, going by the name of Freddy Saavedra, came up with the plan to bomb Ekklesia, made the bombs, and told Theo where to plant them. Of course, my client didn’t know— and still doesn’t know— that Saavedra was a cop. Theo thought he was another gay man with whom Theo became obsessed at a moment when Theo was a heavy drug user and experiencing some rather intense emotional issues, which made him particularly vulnerable to Saavedra’s influence. Saavedra used Theo’s obsession as psychological leverage to draw Theo into his plot. It’s a classic case of entrapment, but to make that argument I need official confirmation that the department deployed Saavedra as an agent provocateur.”
Mayeda stroked his moustache in what I now recognized indicated he was thinking; his expression was otherwise unreadable.
I plunged on. “My investigator and I discovered Saavedra’s actual identity and were able to obtain his military records showing he was on the bomb squad, which I believe gave hi
m knowledge of how bombs are made. Furthermore, we can show he is currently an LAPD officer assigned to the anti-terrorism unit. I have a dozen witnesses besides my client who can testify that Saavedra infiltrated QUEER. That’s all consistent with what my client is telling me.”
After a moment, he said, “If true, your allegations against the department are shocking.”
“They are not only true, Your Honor, they are consistent with LAPD’s long-standing practice of infiltrating what it deems to be radical groups with agent provocateurs.” I then gave him a crash course on the PDID.
“This is all rather overwhelming,” he said, when I finished. “The government spying on its own people, trying to incriminate them in violent crimes.”
“Your woodcut is eloquent proof of the kind of misconduct toward unpopular groups of citizens that the government is capable of.”
He frowned. “It’s not exactly the same, counsel.”
“It’s not that different,” I countered.
More moustache stroking, and then, “I don’t understand why the evidence you’ve already gathered isn’t sufficient for your defense.”
My heart sank a bit. Mayeda might be shocked, but he remained a cautious, even timid, jurist. Judges were not immune to political pressures, within the court and outside of it. People versus Latour was a high-profile case. Any misstep by Mayeda could result in consequences that ranged from spending the rest of his judicial career in traffic court to removal by the voters when he had to stand for election.
“Entrapment is an affirmative defense,” I reminded him, “and the burden of proof is on the defense.”
“I’m aware of that,” he said, tightly. “But it’s a much lesser burden than beyond a reasonable doubt. Preponderance of the evidence, isn’t it?”
“That still requires me to prove entrapment was more likely than not. As you said, Judge, my allegations are shocking and, if my client is my only witness to them, a jury might be disinclined to believe them without official confirmation by the police department that it assigned Saavedra— uh, Sumaya— to infiltrate QUEER.”