Mean Justice (11 page)

This was not simply a matter of a wayward prosecutor failing to follow some dry legal principles or niggling technicalities. Appellate opinions going back sixty years have warned that when district attorneys don’t play by the rules, the safeguards built into the justice system begin to crumble. Misconduct by any player in the justice system is serious—jurors, judge, a defense lawyer. But the consequences can be most devastating when the culprit is the prosecutor, now the single most powerful figure in the justice system, or in all of government, for that matter.
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Even presidents must bend to the will of prosecutors, special and otherwise, who are accountable to none, operate largely in secret, and who are themselves immune from prosecution or lawsuits even when responsible for gross or deliberate miscarriages of justice. Most justice system participants and observers agree that the majority of professional prosecutors behave honorably
and adhere to the rules (which, in any case, more often than not favor their cause over their defense attorney opponent’s anyway). But the temptation to bend or break the rules to gain additional advantage can be enormous, given the lack of any meaningful supervision or sanctions for prosecutorial misbehavior. The courts have long recognized this imbalance of power and the enormous stakes involved, for prosecutorial misconduct not only serves the intended goal of making convictions more likely for the guilty, it also increases the possibility that the innocent will be convicted as well.
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Had it been a close case, Tony Perez could have had his conviction overturned because of the prosecutor’s actions. Instead, the appeals court decided that Jagels’ misconduct made no difference in this case—it was, to use a catchall legal principle that appeals courts frequently employ when they find problems but don’t wish to set a criminal free, “harmless error.” In other words, the evidence against Perez was so overwhelming that he would have been convicted regardless of Jagels’ behavior. The prosecutor had gone over the line for no good reason, according to the appellate justices, and risked the loss of a conviction that should have been a cakewalk.

Far from being contrite about his performance, Jagels later seemed quite proud of the opinion railing against him, saying he would do the same thing again.
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He explained his conduct in the Perez case by saying he had to take control of the courtroom because the judge was letting the defense lawyer run amok. Indeed, in touting his qualifications to be the next district attorney, Jagels expressed disappointment to one newspaper reporter that he had not been criticized or reversed by appellate courts more often. If the criminal-coddling judges criticized
him, Jagels reasoned, he must be doing his job. His opponent in the DA’s race, Judge Ferguson, tried to make a campaign issue out of the Perez case, citing it as an example of Jagels’ inexperience and ethical lapses. But with typical rhetorical skill, Jagels managed to turn his own bad behavior into an example of his going the extra mile for public safety—in contrast to judges who liked to stand by and carp about technicalities.

“It is not enough for a district attorney simply to go to the office and put in eight hours,” he told reporters during the campaign, voice thick with indignation. “The district attorney . . . is the only person who understands the system and has the victim’s and public’s perspective.”

Jagels’ protectiveness of this turf he had staked out as his and his alone would eventually become legendary. One day after he became DA, he chased a news photographer up a stairwell, trading insults and profanities with him after the photographer had taken a picture of a murder victim’s family crying in a courthouse hallway. The photographer had every right to take pictures in a public area of a public building, but Jagels appeared incensed. “You’re not going to do this in
my
courthouse,” he is said to have shouted. The DA had previously tried to prosecute the same photographer for shooting the scene of a child’s drowning—a case thrown out of court after the judge lambasted Jagels for overstepping his authority. “What are you going to do, Ed? Arrest me?” the photographer taunted back. “You already tried that, and it didn’t work.”

The dig infuriated Jagels. According to the photographer, a red-faced and shaking Jagels hissed “Fuck you” in response just as they emerged from a stairwell into a lobby where more news reporters, including a TV crew,
were milling about. The camera swung toward the tight-lipped DA, and the photographer recalls smirking, “Would you like to repeat that, Ed?”

“You heard me,” was all Jagels replied, then stalked off.
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The story gets told and retold by reporters in the Kern County courthouse as an example of Ed Jagels’ zealousness. But what it really shows—beyond sheer arrogance, a common enough trait among successful DAs and other high-powered lawyers—is Jagels’ political acumen. He knew he didn’t need the law on his side on this one. Sure, the photographer might have the constitutional right to take snapshots of tearful parents of a murdered child, or to record for posterity the image of an eight-year-old boy’s sodden, limp body being pulled from a canal. That didn’t matter. Jagels knew the public would be on his side for trying to stop it, for trying to spare victims from pain and the insensitivity of newsmen. (It also didn’t hurt that journalists are even less popular with the public these days than lawyers, and that there are no actual sanctions written into the law for prosecutors who exceed their authority in this way.) That sort of approach—putting victims first—became a Jagels trademark. It is one reason why no one has even bothered to mount a serious campaign against Jagels in subsequent elections.

Not that anyone envisioned such electoral invulnerability back in 1982, when Jagels first sought the DA’s office. Most observers at the time considered him an unlikely choice for the job, young and inexperienced, an unknown to the general public, lacking support from the Republican good ol’ boys who ran the county. Many of the senior prosecutors in his office threw their support to his opponent, as did most of the Bakersfield legal community. Jagels had no hallowed Okie bloodlines (over the
years, the Oklahoma immigrants had risen to power out of sheer numbers; even the term
Okie
gradually lost its bite, becoming instead a source of folksy pride). He wasn’t even a native of Kern County. He had come over the Grapevine from the old-money Los Angeles enclave of San Marino, a wealthy second-generation lawyer whose mother frequently appeared in the society columns, and whose father had ties to Washington power brokers like Attorney General William French Smith, as well as ample cash to support his son’s campaign. Jagels’ campaign-donor list was like no one else’s in Kern County. It read like a who’s who of corporate California, with the president and vice president of Occidental Petroleum kicking in, along with a host of corporate, society and legal luminaries from Los Angeles—friends and contacts of the family back in San Marino.

Such a pedigree might have been deadly to other would-be office-holders in Kern County, where out-of-town job applicants at the district attorney’s office were routinely warned they were about to enter “redneck country,” and where loathing of carpetbaggers from the “big city” can be palpable. But Jagels had something better than local roots or experience or political chits or even that greatest currency of public life, name recognition. He had timing, incredible timing.

Ed Jagels had sensed something new on the horizon in the first years of the eighties, a powerful undercurrent roiling through his community and ready to crest: a profound change in the way people looked at their justice system. He had seen, far more clearly than his contemporaries and competitors, that a new and cynical public perception of the courts was taking hold, one that made professional experience in the justice system a negative,
not a positive. Jagels’ message, then, became as simple as it was compelling: The system had been perverted by the judges and the defense attorneys. It had been turned into something that served the bad guys instead of the good guys. And that, in turn, enabled Jagels to ask, So what if the insiders, the lawyers and the judges, were against him? They defend criminals for a living, he would say in his stump speeches. If they are against me, what does that say about the kind of district attorney I’ll be?

Jagels quickly saw he had struck a cord with this pitch—supporters began flocking to him. Once in office, he became particularly adept at bashing Rose Bird, the California Supreme Court chief justice and civil libertarian who had become the bull’s-eye on every conservative’s target after she repeatedly overturned death sentences. The “Bye, Bye Birdie” bumper stickers he and his political organization put together were immensely popular—they couldn’t print them fast enough—as was his characterization of her rulings as “pro-defense fanaticism.” His campaign to oust the chief justice spread far beyond the boundaries of Kern County, bringing him headlines and stature throughout California, and when his campaign succeeded and Rose Bird was voted out of office, Jagels’ name was bandied about as a likely candidate for state attorney general. From the moment he launched his first election campaign, law enforcement fell in behind Jagels in droves. Every police agency, association and union in Kern County, the largest and smallest departments alike, endorsed him, convinced this newcomer would never have let Dana Butler’s murderer roam free. Jagels knew, then, that he had tapped into something big—indeed, he began building his whole career on it, feeding the outrage, the notion that the justice
system was broken and needed radical surgery to restore common sense to the courtroom and safety to the streets.

It was an unassailable position in so many ways, and a relatively novel one for the time. Frustrations were just beginning to build back then, not just in Bakersfield, but all over the nation—over repeat offenders, escalating violence and criminals who seemed to walk out of prison just days after getting there. And Jagels found a natural constituency who shared these views: Long before he chased a news photographer up a courthouse staircase, he became one of the first prosecutors in the country to ally himself with the then-nascent crime-victims’ movement. He sensed early on the enormous political clout that movement would one day attain. He championed a Crime Victims Bill of Rights that has since become law in California (though portions of it were later found to be unconstitutional), and he has been rewarded with the undying support of crime-victims’ groups, which themselves have risen from obscurity to become potent lobbying forces in state legislatures around the country.

In forging this alliance, Jagels redefined the job of district attorney. No longer would he be merely a prosecutor of criminals, an upholder of the law. Kern County’s DA, in Jagels’ view, would also be an advocate for the
victims.
He would be
their
lawyer, their avenging angel. And his enemies were the judges, the black-robed symbols of everything wrong with the justice system—splitting hairs, defying common sense, perverting the law to benefit criminals, he’d say in speech after speech.

His prescription for fixing the system was also groundbreaking for the times, and always the same: Change the law to shift legal discretion—the code word
for power in the justice system—away from the dreaded judges and toward prosecutors. Despite the fact that prosecutors already were the most powerful figures in the justice system, Jagels continually portrayed himself as a crime-busting underdog, bereft of the laws and powers he needed to do his job right. To remedy this supposed handicap, Jagels has throughout his career pushed for laws that not only would stiffen punishments for criminals, but that would also limit judges’ choices as they made rulings on evidence and passed sentences. That way, it would be prosecutors, in choosing what charges to file and what evidence to use, who would decide a criminal’s sentence. Jagels also helped pioneer the ultimate weapon in this approach, California’s “Three Strikes and You’re Out” law, which puts three-time offenders—even nonviolent ones—in prison for life, whether a judge wants it that way or not.

This prescription has taken hold across the United States: Jagels’ time as district attorney has paralleled a quantum expansion in the powers of prosecutors throughout the nation, as Three Strikes laws and other limitations on judicial discretion have spread. As an eloquent spokesman for his cause and a power to be reckoned with throughout California, Jagels’ influence has ranged far beyond his fiefdom in Kern County.

The take-no-prisoners, judge-bashing posture Jagels adopted to achieve his goals turned off the veterans in his office, but it made him a natural leader to most of the younger assistant DAs, who also had come to the conclusion that judges were as much the enemy as criminals. Here was a guy who publicly announced that he wanted to recall most of the California Supreme Court, who thought illegally obtained evidence ought to be permissible
in trials, and who considered it a badge of honor to be reversed by an appellate judge. He proclaimed the requirement that police should have to take thirty seconds to advise a suspect of his constitutional rights—the famous Miranda warnings created by Bakersfield native Earl Warren—an outrage that should be ignored whenever possible. No wonder the deputies and patrol officers were knocking on doors for Ed Jagels by the dozen. He was their dream DA.

Once he took office, Jagels quickly reorganized his staff, removing the senior prosecutors who had opposed his candidacy from high-profile and supervisory jobs they once held. In their place, he installed the young, aggressive, like-minded prosecutors who had put their careers on the line to support him. And, almost immediately, the office Jagels had built in his own image began performing just as he promised it would: The Kern County District Attorney’s Office began accumulating the toughest record in California, sending more people to prison per capita than any other county, filing a higher percentage of cases brought to them by police than any other county, and garnering longer sentences than any other county. Jagels boasted that he had the most aggressive, law enforcement-oriented DA’s office in the state, and few argued otherwise. Because California was often ranked at or near the top nationally in terms of punishing criminals, Jagels legitimately could lay claim to being one of the toughest prosecutors in the United States.