Can Christopher Testify in Brutality Cases? : * Courts: He is subpoenaed to appear as a witness because of his role on commission. Battle looms over whether he is an LAPD ‘expert’ or whether he is just aware of hearsay.

The stage has been set for a legal battle over whether Warren Christopher, the chairman of the commission that criticized the Los Angeles Police Department for condoning the use of excessive force, will be permitted to testify in police brutality cases and whether the commission’s report can be used as evidence in such cases.

Civil rights lawyer Stephen Yagman has subpoenaed Christopher and another commission member, Leo F. Estrada, to testify in two upcoming federal civil lawsuits in which several officers are accused of brutality. Estrada is a UCLA professor who said in a recent interview that early drafts of the commission’s critical study on the Police Department were even more stinging than the final report.

Yagman also has subpoenaed the commission report and all early drafts of the report.

Christopher and Estrada “possess evidence that is relevant to an excessive-force case against the LAPD,” said Yagman. He wants to present the report to a jury because it is “the most current, comprehensive evidence of customs of racism and brutality within the Los Angeles Police Department.”

But Deputy City Atty. Donald Vincent, who represents the Police Department in one of the cases, said he would oppose introduction of the report because it is hearsay, meaning information that came from a third party.

“It’s my understanding that the Christopher Commission did not look at this particular unit of the LAPD so I don’t see how it could be admissible,” Vincent said.

Vincent is representing a case scheduled to start in early October before U.S. District Judge J. Spencer Letts. It involves several members of the department’s controversial Special Investigations Squad who are accused of murdering three men after the officers stalked them and allegedly watched them rob a McDonalds fast-food outlet in the San Fernando Valley.

Deputy City Atty. Philip Sugar, who is handling the other brutality case, called the subpoenas “a theatrical stunt by Yagman.”

Yagman retorted: “The question is whether the report is trustworthy. It would be amazing for the city attorney to say it is not trustworthy if the City Council is implementing changes (in the Police Department) based on the report.”

Christopher, a prominent Los Angeles lawyer, is not speaking publicly about his reaction to the subpoena. However, a statement was issued on his behalf by Mark R. Steinberg, one of the commission’s deputy general counsels:

“Mr. Christopher and, I am certain, other members of the . . . commission will obviously cooperate if they have relevant and legally admissible information to provide. I am in contact with counsel for the plaintiff in an effort to determine the nature of the information that he is requesting from Mr. Christopher.”

Other sources indicated that Christopher is concerned that if he were to testify in the Gomez case, he then might be subpoenaed to testify in numerous other excessive-force cases.

Two Los Angeles law professors who are experts on the law of evidence offered diametrically opposing views on whether Christopher would be allowed to testify and whether the commission’s report would be admissible in a trial.

“Ordinarily, I would not expect the report to be admissible,” said Laurie Levinson, who teaches evidence at Loyola Law School. She said the report was “hearsay, a compilation of other people’s thoughts and opinions.”

Levinson said she did not think Christopher would be allowed to testify because he was not a witness to any of the events in the Gomez case or other alleged instances of police brutality and has no first-hand knowledge of the incidents in question.

But UCLA law professor Robert Garcia disagreed. He said the report could be admitted on the “public report” exception to the normal federal evidence rules prohibiting hearsay testimony. He cited a 1988 Supreme Court decision that an internal Navy report on a plane crash could be admitted in a civil suit on the crash.

The Supreme Court, he noted, said the key issue is whether the report is reliable. Garcia said the Christopher Commission report met all four criteria of reliability--timeliness, a high level of skill by the investigators, the use of public hearings and a lack of bias.

Garcia also said that because of his work heading the commission, “Christopher is clearly qualified as an expert” on LAPD practices.