July 13, 2001

Judge Says It's Unfair but Keeps Perez Behind Bars;
Rampart: The jurist accuses prosecutors of not honoring the ex-officer's plea bargain. He says he has no choice but to keep the informant jailed, but sets another hearing.

BYLINE: MATT LAIT, SCOTT GLOVER, TIMES STAFF WRITERS

BODY:
A Los Angeles Superior Court judge said Thursday he believes corrupt ex-LAPD Officer Rafael Perez should be a free man under the plea agreement he reached with prosecutors, but must remain in custody longer because of a series of technical errors and misjudgments.

At the urging of the district attorney's office and state and county lawyers, Judge Robert J. Perry reluctantly ordered that Perez be immediately transferred to a state prison to finish serving his sentence.

"I'm troubled that the person getting hurt here is the one who bargained for something he's not getting," the judge said. "I really think this is so unfair."

The controversy involving Perez's release date centers on the question of whether he began accruing state "good-time, work-time" credits when he was sentenced in February 2000. Those credits would allow Perez a day off his sentence for every day he served in state prison. Under such a calculation, Perez's attorney argued that his client should have been released last month.

However, since Perez was never sent to a state facility, prison officials contended that the former Rampart Division officer is not entitled to those credits. Moreover, state authorities said, inmates must perform work approved by the Department of Corrections to receive any credits. There has been no such approval for Perez's cooperation with investigators.

Attorney Winston Kevin McKesson, who represents Perez, said there is no reason why his client's cooperation with authorities should not count as credit.

"The purpose of these work-time credits is that somebody can be rehabilitated [and] show remorse so that they can reenter society," McKesson said.

"And I ask this court, who has done that more than Rafael Perez? I can't believe that [the state corrections system] is seriously taking the position that if he would have been in custody, digging ditches or pressing clothes, that would have shown greater rehabilitation or greater remorse," McKesson said.

At the end of the hearing Thursday, Perry agreed with prosecutors that it was procedurally improper for him to order Perez's immediate release. Perry ordered all the attorneys back to his courtroom on July 23, however, so they can further argue their positions on whether Perez should be released.

As part of his plea deal, Perez was sentenced to five years for stealing cocaine from Los Angeles Police Department evidence facilities. At the time of his sentencing, the district attorney's office requested that Perez be housed locally so he could more readily fulfill the terms of his deal to cooperate with the investigations into alleged misdeeds by other police officers. When Perez was no longer being debriefed by investigators, the judge granted Perez's request to continue serving his sentence in county jail due to safety considerations. At that time, Perry, McKesson and the district attorney on the case all assumed that Perez would receive the same credits as any state prisoner although he was serving his time in county jail.

On Thursday, Perry said he was troubled that Perez's release from custody is being delayed by technicalities.

"The record in this case is replete with errors and misjudgments," Perry said. "It's unfortunate in a case that has attracted so much publicity that the justice system looks so inept."

Perry blamed all parties involved, including himself. At one point, he asked the attorneys in his courtroom whether they shared his views.

"Aren't you concerned that we're sending a message here that if you're a dirty police officer, hey, it doesn't help you very much to cooperate because . . . the prison authorities, the D.A., they'll end up stabbing you in the back, holding on to you as long as they can?" Perry asked. "I think there's a global picture here that's being missed when we focus on such things as whether someone's a sentenced prisoner, but is not a state inmate."

Others were less sympathetic to Perez's plight.

"It's a welcome decision," said police union President Mitzi Grasso, referring to Perez's continued incarceration. "It's hard to imagine that Rafael Perez could ever fully serve his debt to society. Whenever he gets out it's too soon."

Perry's order to have Perez transferred to a state prison will allow Perez to appeal directly to state corrections authorities to get retroactive credit for the time he spent cooperating with investigators. An attorney representing the state prison system said she knew of no instance in which such an appeal was granted.

Barring any ruling to the contrary, corrections officials said, Perez will be eligible for release in December.

Since September 1999, when Perez began cooperating with authorities, more than 100 criminal convictions have been overturned. Eight of Perez's former colleagues in the Rampart Division have been charged with crimes ranging from planting evidence and assault to filing false police reports and perjury. Six of those officers were convicted of crimes, but three have since had those convictions overturned by their trial judge. The judge's decision in that case is being appealed by prosecutors.

One officer has been acquitted of all charges. trial is pending for another.

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