Authors: Ken Englade

A Family Business (30 page)

BOOK: A Family Business

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In California a judge can give an indicated sentence if a defendant agrees to plead guilty to all counts against him. The only restriction on the judge is that the sentence he proposes be authorized by law. No one was happier with Smerling’s propensity for indicated sentences than O’Brien and the lawyers representing Jerry and Laurieanne, Edward Rucker and Thomas Nishi. Starting on June 30, 1989, Smerling’s reputation for handing down light sentences began manifesting itself. On that day, a Friday, Smerling announced the first of a series of decisions. To begin with, he announced his decision to dismiss ten of the charges against the Sconces, many of them dealing with the alleged theft of tissue and organs.

“The motives of the defendants are despicable,” he proclaimed from the bench, “but that’s not the issue. The issue is whether a crime has been committed.”

In his opinion, as it related to the removal of body parts in a majority of the charges before him, it had not. He had decided, he said, that the “to remove tissue” clause in the ATC forms used by the Sconces had provided sufficient authority for them to harvest the material. By signing the forms, he said, the relatives of the deceased were, in effect, becoming parties to a contract. And under contract law it was the burden of the next-of-kin to challenge the “to remove tissue” clause. “The failure to read a contract doesn’t justify rescinding the contract,” Smerling said.

Interestingly, his view on the issue was exactly opposite that of Judge Person. Fourteen months earlier, in his ruling on the case, Person had said there was
no
contract. “The court finds…that no contract was entered into by any of the donors or other authorized persons by virtue of the execution of the Authority to Cremate forms…” Person had said.

More important, in a move that would later cause all manner of turmoil, Smerling also announced his decision to dismiss the conspiracy-to-murder charge against David, the one that alleged that David had requested and helped plan the killing of Elie Estephan. It was, in terms of possible punishment, the most serious accusation that David then faced. Although he also was charged with three counts of solicitation of murder—on his grandparents and Lewis—the conspiracy accusation would have been the one to send him to jail for a
long
time. Under California law, conviction of conspiracy to murder carries a mandatory term of twenty-five years-to-life, while conviction of solicitation of murder carries a maximum sentence of three years.

The reason for the wide disparity in sentences had to do with the degree of involvement by the person accused of the crime. “Solicitation” required only that two or more people talk about the possibility of committing murder, while “conspiracy” required actual agreement to commit murder. Smerling said he was dismissing the conspiracy charge because David had abandoned the murder plot before Garcia and Dutton could carry it out. In other words, since the murder never took place, there could not have been a conspiracy to commit it, at least not in the legal sense.

Smerling’s pronouncements rocked the district attorney’s office, which believed its case was rapidly being ravaged. But the prosecutors’ frustration was only beginning; Smerling was barely getting warmed up.

Six days after the first proclamation, the judge announced that he was tossing out twenty more charges against the Sconces. This second round of dismissals dealt mainly with charges stemming from the CIE&TB operation. Smerling said he was discarding them because he had no way of knowing for certain whose body parts had been removed and sold. He also dismissed the charges against Laurieanne and Jerry arising from the Rojas bribery, citing a lack of evidence that they knew of David’s alleged plan to bribe Rojas.

In a separate move, Smerling said he had also decided that there would be two trials for the defendants. One trial would focus on the violent incidents such as assault and solicitation of murder, and the other would deal with the remainder of the accusations, essentially separate trials for David and his parents, since Jerry and Laurieanne were not charged with any violent crimes.

But the real shocker came seven weeks later. On August 30, Smerling announced his decision regarding some of the more serious charges against David.

The judge went through the inventory of accusations and put together a list of some of the more serious ones. How he chose which charges to include from the variety of accusations that David faced is still a mystery to everyone but the judge. In any case, Smerling said this: If David would plead guilty to those selected accusations—seventeen felonies and three misdemeanors—he would fine him $100 and sentence him to a total of five years in prison. Furthermore, and this was the real shocker for the district attorney, if David agreed at some unspecified time in the future to plead guilty to the remaining charges, which included accusations of soliciting the murder of his grandparents and that of prosecutor Walt Lewis, he would get no additional prison time. And, Smerling added, that included the charge of conspiracy to murder Elie Estephan, the charge he had already dismissed before he made his offer.

Apparently, in determining the sentence he planned to impose, Smerling had used the most serious offense on the list, the robbery of Tim Waters, as the base conviction, thus the five years. Although David did not actually commit the robbery, he hired Galambos to do it, and that made him equally accountable. On the remaining sixteen felony charges, David drew sentences of three or four years each. However, Smerling ruled that they would run concurrently. That meant that David would be credited for serving them at the same time he was serving the single five-year sentence for robbery.

In reality, David’s sentence would be three years and four months rather than five years, because he would get time off for good behavior. Figuring in the time he had already served while awaiting disposition of his case, David would be eligible for release in October 1990, barely thirteen months distant. Considering that Smerling could have sentenced him to as many as eleven years in prison just on the crimes he was initially pleading to, David got off very lightly, especially given the seriousness and the vileness of the offenses with which he had been charged.

Calculating that his decision needed explanation, Smerling said: “I’m well aware of the facts of this case, having read the preliminary hearing transcript. I certainly can’t condone the acts of which you were accused and for which there is substantial evidence. However, I’m also aware of the fact that a filing of a murder case, probably a capital murder case, against you in Ventura County is imminent, that relating to the death of Timothy Waters. That case obviously carries a lot more gravity than this one.”

But, he added, he felt that unless he disposed of the charges before him, the murder charge in Ventura might be further delayed. “I think it’s important for all concerned, not just you, but to the people of the state, that that case commence and be resolved.”

Another consideration in the plea bargain arrangement was the amount of his time—he estimated a minimum of six months—that would be needed to try David on the charges he then faced. “This is an enormous consumption of time,” Smerling pointed out. “For those reasons I think my offer is appropriate under these rather unusual circumstances.”

Rogan leaped angrily to his feet. He had already made the prosecution’s position clear during discussions in Smerling’s chambers, he said, but he wanted to get his opposition on the record in open court as well. “The plea bargain,” he began, tight-lipped and furious, “is not with the concurrence of the prosecution.”

If the relatively light sentence that Smerling had offered David were only for the charges that he was pleading to, the district attorney’s office might be able to live with it, Rogan said. But, he added hastily, a number of other charges were involved as well, including the accusation that David had conspired to murder Elie Estephan.

“My understanding,” Rogan said hotly, “is that should the people be successful in bringing that count back from the appellate court before this court, Mr. Sconce would have an opportunity to plead to that count and would be given probation on what would otherwise be a twenty-five-to-life sentence. And,” he added indignantly, “as I understand the court’s rationale for that, the court doesn’t feel that under the facts of that case it’s worthy of twenty-five-to-life.”

Rogan wanted to keep going but Smerling waved him to silence. “Let me respond to that and then you may continue,” the judge said.

Rogan sat down, biting his tongue.

Locking eyes with the DDA, Smerling assured him that his assessment of the situation was correct. Turning to David, he reiterated his deal. “My offer to you, Mr. Sconce, is that in the event any counts in this case you’re later convicted on, you receive no more time than the five years I just sentenced you to. That does include the conspiracy-to-murder count that I dismissed.”

What Smerling was saying rather inarticulately was that if David later pleaded guilty to the charges still pending against him, Smerling would not sentence him to any additional prison time. The offer applied as well to the conspiracy-to-murder charge that Smerling had dismissed earlier, in case an appeals court later reversed his decision. Smerling apparently had very strong feelings about that. The way the law read, if David was convicted of conspiracy to murder, the statute mandated a sentence of twenty-five-years-to-life. The only alternative was to give no prison time at all, only probation. To Smerling, apparently, that was the more just course.

“It’s my view, that [twenty-five-years-to-life] is an extremely excessive sentence for the behavior that underlies that count,” Smerling said. “I’d be compelled by conscience to give you probation. Actually, a sentencing in between would be more appropriate, but that’s not the law.”

David was being offered probation on a sentence that could have put him away for a considerable period of time, solely because Smerling did not believe in harsh sentences.

Rogan, still seething, was back on his feet. “Thank you, your honor,” he said perfunctorily. “As I was saying…I think that with that type of offer [on the other charges]…an appropriate sentence would be in the seven-year range rather than five years because of the multiplicity of actions and the amount of threats and so forth. When we get to the conspiracy count and we throw that in the pot also as a probation—and I say this with all due respect to the court—I feel it’s Christmas Day in August for Mr. Sconce.”

“I’m mindful of those concerns and I respect them, Mr. Rogan,” Smerling said, dismissing him.

Once Smerling had made the offer, it could not be retracted. However, there was one thing that could gum up the works. If David decided to fight the remaining accusations by going to trial, the offer would cease to be valid. If that happened, David would have to take his chances with a jury. But with a promise of not having to serve any additional time, given the fact that evidence against him appeared quite strong, it did not appear likely that David would reject the suggestion.

Smerling also made an offer to Jerry and Laurieanne. If they pleaded guilty to the charges pending against them, the judge would sentence them to only one year each in the county jail. They did not jump on the offer as quickly as David, deciding instead to bide their time and see what happened while they remained free on $5000 bond.

When Smerling took over the case, there were sixty-eight charges pending against David, Jerry, and Laurieanne. At the end of the summer of 1989, he had pared that number down roughly by half. When he finished, the score-card looked like this:

David

Guilty (sentenced to five years):