Only Risky Options for D.A. After Pratt Murder Reversal

Whatever Los Angeles County Dist. Atty. Gil Garcetti decides to do next in the Elmer “Geronimo” Pratt case, the decision will involve some degree of personal or political risk.

Now that Santa Ana Superior Court Judge Everett W. Dickey has reversed Pratt’s 1972 murder conviction, Garcetti has three options: appeal Dickey’s decision, retry the former Black Panther Party leader or drop the case.

Pratt has steadfastly maintained his innocence in the 1968 shooting death of schoolteacher Caroline Olsen and the critical wounding of her husband during a robbery on a Santa Monica tennis court.

Dickey overturned his conviction Thursday, ruling that prosecutors had suppressed evidence that could have led to a different result.

Retrying a 25-year-old case presents what many observers see as insurmountable obstacles for prosecutors. But dropping it, accepting Dickey’s decision and allowing Pratt to go free could be distasteful to prosecutors who believe strongly that Pratt is guilty. And the remaining option, an appeal, could wind up doing little more than leaving the case in limbo for a year or more.

“I think any avenue for Mr. Garcetti is going to be very difficult,” said Laguna Hills attorney Thomas M. Goethals, a former Orange County prosecutor. “I don’t think they have any good options.”

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Legal observers said retrying the case is the most difficult option, especially if all the evidence against Pratt is the same as it was in 1972.

“Your key witness has been branded a liar, and you know he’s going to get just decimated on the witness stand,” said Loyola Law School Associate Dean Laurie Levenson, a former federal prosecutor.

Dickey ruled that key prosecution witness Julius “Julio” Butler gave “false testimony” when he denied at Pratt’s trial that he had ever been a police informant.

Butler, a former Los Angeles County sheriff’s deputy who later joined the Panthers, was the linchpin in the prosecution case against Pratt. As Dickey wrote in his decision: “The importance of Butler to the prosecution cannot be denied.”

Butler was the first person to tie Pratt to the Olsen slaying. Testifying at Pratt’s trial 3 1/2 years after the crime, Butler said the defendant had confessed the killing to him.

Garcetti’s easiest option, Goethals said, would be to drop the case. “But the district attorney’s office in Los Angeles has never shown any indication, from anything I’ve seen or heard, that they’re willing to walk away from Mr. Pratt,” he said.

Los Angeles defense attorney Harland Braun said Garcetti should drop the case.

“It was 25 years ago,” Braun said. “They’d have to try the case now revealing not only that Butler was an informant, but that he lied at the first trial about being an informant.”

No one could fault Garcetti for appealing Dickey’s decision, because procedurally it is routine to do so, said Santa Monica defense attorney Gigi Gordon.

“On the other hand, someone could make the decision that enough is enough,” she said. “The district attorney’s office has in the past accepted the findings of a judge in an evidentiary hearing and basically [agreed] to the reversal.”

Levenson said there is a “real temptation to chalk this up to another time, another era, and say the man has served longer than most murder defendants serve.”

But if prosecutors decide to drop the case, they should emphasize that Dickey’s opinion does not exonerate Pratt, she said.

“You just say that it’s too late to give him a fair trial, and at the same time give the prosecution a fair trial,” she said.

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If Garcetti does not appeal or retry the case, Levenson said, “the public may perceive that this district attorney was able to step back and evaluate the case and say this was the fairest thing to do under the circumstances. That may add some credibility to the district attorney’s office.”

The risk in that position, she said, is that if prosecutors “honestly believe that Mr. Pratt killed a person, it’s very hard to walk away from that. It stings to walk away. We know of other cases where you may believe it, but if you can’t prove it, you have no choice.”

Braun said an “honest prosecutor would simply say, ‘It’s been 25 years, and we can’t retry the case.’ Pratt has already done more time than people were doing on first-degree murder then.”

But Garcetti will appeal, Braun believes, putting the decision off another year. And he, like other legal observers interviewed, does not see much chance that prosecutors could have Dickey’s decision reversed on appeal.

“It sounds like Dickey insulated and bulletproofed this whole record on the theory that they might appeal,” Gordon said.

“The likelihood of the Court of Appeal overruling Judge Dickey is very, very, very slim,” she said. “Now a judge has heard all the evidence that the jury didn’t hear and said this should have been [heard] at the trial. For another judge or three judges to say you’re wrong is unlikely.”

Goethals said he thinks prosecutors will appeal because they may feel “that is the only shot they’ve got. I think that will be a very difficult appeal to win, however. Much of Judge Dickey’s ruling has to be based on credibility findings: Who’s telling the truth here? What really happened? I think he made a lot of credibility findings adverse to the district attorney’s position.”

By no stretch of the imagination can Dickey, a Ronald Reagan appointee to the bench, be considered a liberal judge, Goethals said.

“He is a very conservative, law enforcement judge who is also very strong on following the law,” he said. “So for him to grant a new trial after all of these years, he must have been very impressed by the evidence they put on.”

Prosecutors have 60 days to act, a spokeswoman for Garcetti said Friday. She said there could be a decision next week on whether to appeal. Regardless of what Garcetti decides, Pratt’s lawyers say they will attempt to have him released on bail as soon as possible.