A Family Business (39 page)

Still pending against David were some two dozen charges, excluding the murder of Tim Waters, which ranged from solicitation of the murders of three people—DDA Walt Lewis, and David’s grandparents, Lawrence and Lucille Lamb—to three counts of assault with great bodily injury. Pending against Laurieanne were eighteen charges ranging from five counts of illegally removing body parts to three counts of forgery, while Jerry still faced eight charges ranging from two counts of performing multiple cremations to misappropriation of income from preneed trust accounts.

Smerling examined this list and decided it was still too cumbersome an agenda to bring to trial. Although he had earlier announced his decision to hold two separate trials, one on the cases involving violence and another on the no-violent accusations—essentially one for Jerry and Laurieanne and another for David—he figured that unless he took further action, he would be tied up in court for the better part of a year just hearing charges against the Sconces. In negotiations with David’s attorney—talks from which Prosecutor Jim Rogan was for all practical purposes excluded (“I had to be physically present under the law,” Rogan said, “but they treated me like a piece of the furniture”)—Smerling devised an elaborate plea-bar-gain offer for David. If David would plead guilty to the charges still pending against him, the judge would guarantee him that he would serve minimal prison time.

Specifically, in return for pleading guilty, Smerling sentenced David to five years in prison, complete with credit for time served. In addition, the judge said, if David would plead guilty to the remainder of the charges, he would not levy any additional prison time.
Plus
, if his decision to dismiss the Estephan conspiracy charge was overturned by the appeals court and the case came back to him, he would promise not to levy any prison time on that charge either, simply giving David probation.

As if that were not enough, there was still one other carrot. David, Smerling said, did not have to give an immediate answer on the offer. He could go ahead and serve the five-year sentence—which would automatically be cut three years and four months when credit for good behavior was figured in—and he could respond to the remaining part of the offer at any time up until it looked as though he might actually have to be brought to trial.

At the end of the summer of 1989, the Sconce situation stood like this:

• David, who had been sentenced to five years after pleading guilty to twenty charges, still faced eight more felony charges ranging from accusations of soliciting three murders—including that of the deputy district attorney who was then prosecuting him—to two counts of bribery, all of which would result in a sentence of probation if David would only formally admit that he committed the crimes. (The charge against David of murdering Tim had not even been filed at that time, so it did not figure into the equation.)
  
• Laurieanne still faced eighteen charges.
  
• Jerry still faced eight charges.
  

After the murder charge against David was dismissed, the focus of attention on his case switched back to Pasadena since the charges David had not yet pleaded to were still active in Smerling’s court. Theoretically, to clear the record, David would either have to plead guilty to the charges and accept the offer of probation offered by Smerling, or plead not guilty and go to trial. However, in the meantime, one other major development had occurred that muddied the water.

At roughly the same time the murder-charge prosecutors agreed to dismiss the accusation that David had killed Tim, the California Court of Appeal ruled on the district attorney’s request to overturn Smerling’s dismissal of the Estephan charge. By unanimous vote, the three-judge panel voted against Smerling, agreeing with the D.A. that the judge had erred. In an opinion written by Presiding Judge Joan Dempsey Klein, the appeals court found that “regardless of Sconce’s motivation for withdrawing [from the conspiracy], it cannot insulate him from liability” because conspiracy “is complete upon the commission of an overt act.” In other words, when David announced that he did not want to participate further in the murder plot, that did not remove his responsibility for having initiated the plot to begin with. And there seemed to be little question that he
had
participated. Even Smerling, the court pointed out, had conceded the existence of an intrigue when he commented: “No doubt about it, until the time of withdrawal…there was a conspiracy.”

In the light of these facts, the appeals court concluded, “withdrawal from a conspiracy is not a valid defense to the completed crime of conspiracy itself.” Translation: In the court’s opinion, David should be called to account on the conspiracy charge, conviction of which carried a sentence of twenty-five-years-to-life.

Several weeks later the state supreme court effectively upheld the appeal court’s opinion by refusing to review the case.

That, nevertheless, did little to clarify the situation still existing in Los Angeles County, that is, what to do about the charges still pending against all three Sconces.

Even though more than four years had passed since the charges were filed against Jerry and Laurieanne, Judge Smerling had never ordered them to stand trial. As best as could be determined from a very complicated record, their trial had been postponed twenty-six times for various reasons. In the meantime, they remained free.

Exactly why so much time had been allowed to elapse without a trial was puzzling. Their cases were not overly complicated. They faced a number of charges for which they presumably, eventually, would be called to answer. If that day ever occurred, they could either plead guilty and throw themselves upon the considerable mercy of Judge Smerling, or they could plead not guilty and go before a jury. When this book was written, reports were circulating in the courthouse that Smerling was considering another plea bargain under which Jerry and Laurieanne would plead guilty in return for little or no jail time despite the severity and the copiousness of the charges against them. He had already offered them a sentence of no more than one year in the county jail, but they were holding out for a better deal.

While the situation involving the charges against Jerry and Laurieanne was not unduly complex, the same could not be said for David’s.

On the surface it seemed fairly clear-cut: He could either plead guilty to the charges still pending against him and accept Smerling’s two-year-old offer of no prison time, or he could plead not guilty and face trial. If he pleaded not guilty and he were subsequently convicted, he could end up back in prison for a considerable period. That much was fairly explicit. But what
really
threw the situation into confusion was the reinstatement of the Estephan charge.

The district attorney’s office was extremely, and understandably, reluctant to let David escape without being called accountable for the alleged crime. Still smarting from the defeat in Ventura County, and still convinced that David was a dangerous criminal—immediately after dismissing the murder charge, Bradbury told reporters that in his view David was “a cold-blooded murderer”—the prosecutors would have liked to see David back in prison. A conviction on conspiracy to murder and the resulting sentence of at least twenty-five years, while perhaps not as satisfying for the prosecutors as one for capital murder, would do nicely. If nothing else, David would be off the street and investigators would have as much time as they needed to try to redevelop the charge that he murdered Tim Waters. But getting him to trial on the conspiracy charge was no easy matter. In fact, it looked as though it might ultimately prove impossible.

Although the appeals court had overturned Smerling’s decision to dismiss the charge, the case still went back to the Pasadena judge. The appeals court could rule that he had erred, but it could not order him to take any specific action. If Smerling wanted—indeed as he had
promised
David in the summer of 1989—he could simply sentence him to probation on the charge, thus avoiding ordering him to prison. However, probation was contingent upon David pleading guilty.

The district attorney’s office definitely did not want that to happen, but they were limited in what action they might take to prevent it. On July 19, 1991, Prosecutor Harvey Giss filed a motion with Smerling demanding that the judge disqualify himself from the case, citing the judge’s asserted unwillingness to apply the statutory prison term for the conspiracy charge, and questioning the legality of his decision regarding the conspiracy charge.

According to Giss, Smerling should not have promised David probation on the conspiracy charge because by the time he made that promise, the case had already been removed from his jurisdiction. When Smerling dismissed the charge and the district attorney’s office immediately appealed, Giss contended, that automatically transferred the case from Smerling’s court to the court of appeal. Furthermore, even if the case
had
been within Smerling’s jurisdiction, he could not have promised probation on the charge because his offer was expressly prohibited by state law.

Epilogue

Early in June 1991, almost four years to the day from the time he surrendered to authorities in Pasadena, and some two months after the murder charge was dismissed,
David Sconce
filed a $1.25 million damage claim against Ventura County alleging that he suffered “extreme mental anguish, pain and suffering, anxiety and fear at being held in jail on a nonmeritorious death-penalty murder charge.” In the one-page document, David said the invalid charge kept him behind bars 178 days longer than he should have been under the sentence handed down by Judge Smerling, and that he was entitled to $500 in damages for each of those days, plus additional damages totaling $1,161,000. Not surprisingly, the county board of supervisors rejected the claim, clearing the way for David to file suit against the county.

At the July 19, 1991, session, the one at which Harvey Giss filed his motion to have Judge Terry Smerling disqualified from hearing the most serious charge still pending against David, Smerling, as he had done so many times before, postponed setting a trial date for
Jerry
and
Laurieanne Sconce
on the charges still pending against them. A trial had been anticipated for more than four years, but every time it appeared imminent, Smerling delayed it, frequently because the two lawyers involved—three, if David’s is figured in—had not been able to coordinate their schedules. It is an unfortunate fact of life in Los Angeles that the demand for top-notch criminal lawyers exceeds the supply. As a result, the high-profile attorneys have more work than they can handle and it is extremely difficult for a judge to find a time when two or more defense attorneys can set aside a large block of time for trial. In the meantime, David’s parents remained free.

Further complicating the situation was the fact that the Los Angeles County District Attorney’s Office appealed Smerling’s decision to dismiss numerous charges against the Sconces. One result of this appeal was an additional entanglement of the case involving Jerry and Laurieanne. Apparently before they could be tried on the charges that were
not
dismissed by Smerling, the court of appeal, and presumably the supreme court, would have to decide if the dismissals were proper. If the appeals courts were to rule that Smerling acted inappropriately and reinstituted the charges, the two then could be tried on a considerably expanded list of accusations. Again, as it has been repeatedly throughout this saga, no speedy or simple resolution seemed forthcoming.

Although he also was free, David was prohibited by conditions of his three-year parole from leaving California, except with special permission. That meant that visits to the family at their home in Bullhead City, Arizona, could be made only with authorization.

Not surprisingly,
Judge Smerling
proved unwilling to admit to judicial misconduct in the David Sconce/Elie Estephan matter. Soon after Giss presented his motion to have him disqualified, the judge filed papers opposing the request with Superior Court Judge Robert T. Altman of Santa Monica, who had been chosen to hear the dispute by an agreement between Giss and Diamond, who had reemerged as David’s attorney. Although his official connection with David ended when the murder charge was dropped in Ventura County, Diamond prevailed upon Smerling to appoint him to the Pasadena case. Smerling obligingly complied when he saw that David’s court-appointed attorney, Guy O’Brien, had no objection. Diamond had been involved in the case from the very beginning, first as a retained attorney and then as an appointed one, and he welcomed the chance to jump back into the fray.

After reading Smerling’s explanation of his actions as well as prosecution and defense briefs, Judge Altman surprised just about everyone who had been following the case by ruling in favor of the prosecution, agreeing that Smerling had displayed prejudice against the state to such a degree that he was incapable of being unbiased. It was believed to be the first time any California judge had found a brother judge biased since the law covering such situations was revised in 1984.

“The court finds,” Altman wrote in his August 8 decision, “that…Judge Smerling, operating on the assumption that Mr. Sconce would be tried on a death penalty case in Ventura County, clearly acted in good faith in trying to save [Los Angeles] County the costs of protracted trials in both this case and [the other charges].” But, despite Smerling’s “good faith,” Altman continued, quoting from the prosecution’s request, “‘a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial’ in this case.”