Petitioners.

Case No. BH001118,

INTRODUCTION OF EXHIBIT C
AND ARGUMENT

Petitioners submit into evidence and attach hereto as Exhibit C of the Objection and Reply to the People's Response, a chart which depicts discrepancies between the list of all wiretap orders alleged to have been obtained by the People in 1998, which had previously been submitted to this court by the District Attorney's Office, as compared to the 1999 Federal Wiretap Report published this year.

ARGUMENT

The People assert that the implementation of new procedures now in place will ensure compliance with the state statute. (People's Amended Response, p. 4:2-5.) At best, this statement provides nothing more than a tacit admission of the prior inadequacies over the past 10 years. These "special controls and procedures" referred to by the People are nothing more than meaningless self-created, self-policed, and self-serving procedures because they provide no independent objective overseer to guarantee proper compliance with the reporting and notice provisions of the state and federal wiretap acts. A comparison of the People's previous sworn statements and the 1999 Wiretap Report from the United States Courts clearly establishes the inherent flaws of the self-proclaimed "protections" now being afforded by the People's new "special controls." (Ibid.)

The "special controls and procedures" now referred to by the People were nothing more than an internal reference system. Under their "new" procedures, the People would voluntarily label wiretaps applications by reference first to year, then to the Superior Court Department of the authorizing judge, and finally by a number they themselves assigned and promised that these numbers would sequentially reflect the number of wiretap orders submitted to that judge that year. Pursuant to these new "special controls," the first wiretap application submitted to Judge Perry in 1998 would be referenced as 98-103-1, to Judge Rappe, 98-104-1, and to this court, 98-123-1, this court then presiding in Department 123.

However, the People continued to be free of any court filing and recording procedures prior to submission of their applications. Without such a judicially imposed system which independently and sequentially assigns court reference numbers through a central location, there can be no assurance of full compliance. Especially where there are multiple judges issuing orders.

In spite of the fact that the state wiretap act gave jurisdiction to only one judge per county to issue wiretap orders, that being the presiding judge or "one other judge designated by the presiding judge," the presiding judge designated Your Honor as the "one other judge," but continued to designate two "back-up" judges in the case of unavailability of the designated judge. Even if the law allowed for these "back-up" designations, one must question the definition of "unavailability" when again there resulted the issuance of two separate wiretaps orders by two separate judges on the same day.

It is for these reasons that 1999 Wiretap Report on wiretaps issued in Los Angeles County for 1998 showed little difference from the previous year in spite of the implementation of the People's new "special controls and procedures." There were still an inordinately high number of wiretap orders issued for Los Angeles County in comparison to wiretap issued for the entirety of California in previous years.⁽¹⁾ As admitted by the People in their Amended Response, wiretaps were reported as a single order when in fact they wiretapped more than one telephone. As can be seen from the wiretap applications and orders introduced into evidence in this case, one order wiretapped the separate telephones of separate, unrelated targets. And while the People allege that no more than seven telephones have been included in any one order, they qualify that statement by dating back the claim to only "the summer of 1998." This time period, as opposed to all of 1998, was chosen for the sole purpose of evading the fact that wiretap orders reported as a single order in the first half of 1998, wiretapped up 250 telephones. (Amended Response, p. 4:21-5:9.)

In support of their verified Return and Supplemental Return, the People submitted a declaration of Deputy District Attorney Peter Cagney, dated August 11, 1998, and a declaration of Head Deputy District Attorney Robert Shirn, dated November 2, 1998, respectively, which identified twenty-nine wiretap orders which were alleged to have been all wiretaps authorized thus far that year. A comparison of the District Attorney's list to the 1999 Federal Wiretap Report, disclosed numerous additional discrepancies. Exhibit C, attached hereto, is a chart which depicts those discrepancies. That comparison discloses that the District Attorney's list failed to include a minimum of eight wiretap orders which were reported by the U.S. Courts and failed to include the fact that three wiretap orders had been obtained from Orange County Judge Toohey. Moreover, six wiretap orders which were included on the District Attorney's list were never reported to the U.S. Courts. While four of these wiretaps were issued and by this court, two were issued by other Judges, Judge Perry and Judge Rappe. Moreover, two wiretap applications, 98-103-11 and 98-123-4, which the People alleged were applications for which court authorization had been denied, were never reported by the People as required by law.

It is, therefore clear, that the People's new self-regulated "special controls and procedures" do not ensure accuracy or compliance with the wiretap acts.

II

PETITIONERS CONTINUE TO BE ENTITLED TO ENFORCEMENT OF

THIS COURT'S PREVIOUS ORDERS AND REQUEST THAT OF NOVEMBER 1, 1999 BE SET FOR COMPLIANCE WITH THOSE ORDERS

The People's failure to adequately submit legally admissible evidence to refute Petitioners evidence, denies them the right to have assertions considered. However, if and when the District Attorney introduces any such rebuttal evidence, such evidence would mandate, at minimum, a full and fair evidentiary hearing wherein Petitioners are afforded the right to controvert that evidence and test the credibility of those allegations through cross-examination.

However, regardless of whether or not the People are able to refute the evidence Petitioners have introduced against them, Petitioners continue to be entitled to enforcement of this court's previous order and hereby request that a date for production of all wiretap-related documents and transcripts be set for November 1, 1999. This court should, therefore, accept the People's offer to produce such records and provide them to Petitioners on that date. Moreover, the People having themselves implicitly waived their right to object to the distribution of the Atel wire monitor logs by publishing in their Response the contents of the wire monitor logs they thereby placed said documents in the public realm and have in a de facto fashion obliterated any prior protective orders in respect to said documents.

Dated: September 20, 1999

Respectfully submitted,

MICHAEL P. JUDGE, PUBLIC DEFENDER
OF LOS ANGELES COUNTY, CALIFORNIA

Kathy Quant,
Michael Fischman,

Deputy Public Defenders

By ______________________________

KATHY QUANT

Deputy Public Defender

By ______________________________

MICHAEL FISCHMAN

Deputy Public Defender

1. A total of 39 California wiretaps from 1989 to 1996.