Articles

Robert Berke - Article
Los Angeles Daily Journal
Monday, April 12, 1999

Prosecutors, Defenders Clash
Over Jail-House Informant Case

By Martin Berg
Daily Journal Staff Writer

A judge's ruling that Los Angeles prosecutors should have been more diligent in gathering, and disclosing, information about a jail-house informant they used in a triple-murder case shows the dangers of speeding up the appeals process, a defense attorney said Friday.

But a prosecutor disputed that assertion, saying defense attorneys should have taken action sooner to seek the information, which eventually undermined the informant's credibility.

Los Angeles Superior Court Judge Patricia Collins last week reversed the life sentence, but not the conviction, of Anthony Stacey in a 1981 triple murder at a Pasadena drug house.

Collins ruled that the jury had sufficient evidence to convict Stacey of participating in the robbery and murders. But to determine that Stacey was the actual shooter -- which led to his sentence of life without parole -- they relied heavily on testimony of a jail-house informant to corroborate Stacey's co-defendant.

That informant had a long history of felony convictions and cooperation with authorities in another state, Stacey's appellate attorney, Robert Berke, and his investigator, Paul Barron, tracked down the informant, Michael Hayes, in Kentucky, where he was in prison under another name. When they confronted Hayes, Berke said, he acknowledged that his testimony against Stacey had not been truthful.

Berke said Friday that prosecutors disclosed his long criminal history only during the process of litigating Stacey's petition for writ of habeas corpus. Prosecutors contended they did not have the information at the time of Stacey's trial.

"If (Stacey's trial attorney) Mark Overland had not convinced a jury to spare Stacey's life in 1983, he very well might have been executed and this information (about the informant) might never have been found out," Berke said in an interview.

Recent federal laws force defense attorneys to meet tight deadlines in filing habeas petitions.

Berke said at the time of Stacey's trial, prosecutors had been ordered to disclose all of Hayes' arrests and convictions, but that only a single arrest in Kentucky was disclosed, in which charges had been dismissed. In fact, Berke said, Hayes had a long rap sheet, including serious crimes, in Kentucky.

A scandal over the misuse of jail-house informants, who traded sometimes fabricated evidence against high-profile defendants, shook the Los Angeles district attorney's office, in the late 1980s. Prosecutors have acknowledged that several convictions were tainted by unreliable informant testimony, and courts have reversed a handful of convictions in cases pursued by defense attorneys.

Los Angeles prosecutors say that although jail-house informants are still used occasionally -- such as in the case of Ennis Cosby's killer -- they require greater corroboration of such testimony as a result of the earlier controversy.

Berke was one of several criminal defense attorneys who spearheaded efforts to investigate the jail-house informant scandal in the late 1980s. The Los Angeles County grand jury issued a report that sharply criticized prosecutors for their use of information.

In 1991, Berke won a reversal of another murder conviction based on questions raised about the reliability of jail-house informant testimony, and he has appealed the conviction of another murder conviction in a jail-house informant case to U.S. District Court.

An unusual aspect of the Stacey case was the disclosure of dissenting views about the case within the district attorney's office during the habeas litigation. The original prosecutor on the appeal, Imogene Katayama, was removed from the case after she recommended that prosecutors not fight the habeas petition.

Katayama, who now works in the district attorney's contract cities unit, could not be reached for comment.

George Palmer, head deputy of the district attorney's office appellate branch, said prosecutors had gathered more information after Katayama made her recommendation. "This case was worth pursuing," Palmer said. "We had information that (Katayama) didn't have when she formed her opinion."

Palmer declined comment on Collins' ruling in the Stacey case, which was issued Thursday. Stacey v. White, A373230. But the prosecutor rejected Berke's contention that the Stacey case showed the dangers of speeding the appeals process. He said defense attorneys could have requested the information about the informant's background sooner, and that the defense attorneys did not file the habeas petition until 1996 -- 13 years after Stacey's conviction. "This information was all available to them," Palmer said.

Berke said prosecutors had a legal responsibility to do more -- at time of trial -- then to simply take the informant's word about his past criminal history. He said defense attorneys at trial had obtained a court order, under which Hayes' complete criminal history should have been turned over to Stacey's defense attorney.

The appeals attorney said he plans to continue to seek to overturn Stacey's conviction based on questions over Hayes' testimony.