Jury Awards $6.5 Million in Frame-Up

Public defender for a man falsely imprisoned and shot by Rampart officers should have uncovered the police misconduct, panel finds.

By Andrew Blankstein
Times Staff Writer

May 26, 2005

A man who was falsely imprisoned after being shot and framed by corrupt Rampart gang officers nearly a decade ago was awarded $6.5 million in damages Wednesday by a jury that found his county public defender was negligent for failing to uncover the police misconduct.

Javier Francisco Ovando was paralyzed after he was shot by former Los Angeles police officers Rafael Perez and Nino Durden in 1996, but was later convicted and served 2 1/2 years of a 23-year sentence in state prison after the pair testified that he attacked them.

The conviction was overturned after the two officers emerged as key figures in the Rampart corruption scandal, which involved dozens of cases of police misconduct including beatings, shootings and false arrests of gang members.

So far, the scandal has cost the city more than $70 million from settlements, caused more than a dozen officers to leave the force and resulted in more than 100 overturned criminal convictions.

Ovando, who was a 19-year-old gang member at the time of the shooting, already has collected $15 million in damages from the city of Los Angeles in connection with the actions of Perez and Durden.

Perez was sentenced to two years in prison for violating Ovando’s civil rights. He also served three years in state prison for stealing cocaine from LAPD evidence lockers. He was released in 2001.

Durden, 36, eventually pleaded guilty to crimes he committed with Perez; he received a five-year prison sentence in August 2002. He was released last month after serving less than three years behind bars.

With Wednesday’s verdict, the jury found that Deputy Public Defender Tamar Toister and Los Angeles County were 100% liable for the compensatory damages.

The award stunned officials with the public defender’s office, who could not recall any malpractice verdicts against their office.

In 2000, the state Supreme Court lifted what had been considered broad immunity against state-appointed counsel.

“We’re shocked at the verdict and do not believe that Ms. Toister committed malpractice or was negligent,” said Chief Deputy Public Defender Robert Kalunian. “We don’t understand how the jury found that the two officers, who have publicly admitted that they lied and framed Mr. Ovando, were zero percent responsible for his conviction and incarceration. I don’t believe the verdict will stand.”

Senior County Counsel Roger Granbo said his office was considering its legal options.

Juror Teresa Reese, one of three who voted against the payout, said she believed some of her fellow panel members voted to award damages because they were sympathetic to the wheelchair-bound defendant. Others, she said, seemed confused about the judge’s instructions to the jury.

“Some of the jurors were second-guessing [Toister’s] legal strategy instead of following the judge’s instructions to focus on the evidence,” Reese said. “They couldn’t lay the blame on Perez or Durden, so they blamed the public defender instead.”

But attorney Gregory W. Moreno said the jury rightfully saw that Toister and the county could have stopped Rampart before it started with a healthy dose of skepticism.

“How could so many people be victimized by dirty cops?” Moreno said after the trial. “The reason is because the legal protections in the system failed them. They are supposed to catch the lies. They were supposed to be the firewall.”

At trial, Moreno argued that Toister failed to listen to Ovando after he repeatedly told her the officers had planted a weapon on him after the shooting.

The attorney also argued that Toister failed to check the personnel files of the officers, interview witnesses who would have contradicted their stories and explore inconsistencies in the officers’ statements.

To make the point, he called Perez to testify. The disgraced former officer detailed how he and Durden shot the unarmed Ovando as he walked into a vacant apartment the two officers were using as an observation post to monitor gang activity.

Perez then told jurors how he and his partner obtained an assault rifle from an informant and shaved the serial number off the weapon before planting it on the wounded man.

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