Prospects for Successful Appeal of Grocer’s Sentence Seen as Slim

Los Angeles County prosecutors have spent the past few days scrutinizing remarks by Superior Court Judge Joyce A. Karlin to determine if she overstepped her bounds when she sentenced a Korean-born grocer to probation in the shooting death of a 15-year-old black girl.

Dist. Atty. Ira Reiner’s office has been looking for evidence that Karlin “abused her discretion” in concluding that the case was exempt from a state law that prohibits probation in shooting deaths, officials said.

Reiner has scheduled a press conference this morning to announce whether an appeal will be filed. “A lot of legal research is going into this. If there is any way that an appeal can be filed, there will be one filed,” said Reiner spokeswoman Sandi Gibbons.

Judges enjoy broad discretion in sentencing and state law gives prosecutors only narrow grounds for appeal, making Reiner’s task extremely difficult, according to legal experts. To successfully appeal the sentence, prosecutors would have to persuade the appellate court that Karlin either misconstrued or misapplied the law, the experts said.

“It is a rarity,” said Dennis Fischer, a Santa Monica attorney and former head of the appellate division for the county public defender’s office.

If an appeal were successful, the appellate court would order Karlin to impose a new sentence.

Karlin sentenced Soon Ja Du on Nov. 15 to five years probation and ordered her to perform 400 hours of community service and pay a $500 fine. Karlin said prison was not appropriate--or required under state law--because Du had no criminal record, possessed a weapon only for protection and shot Latasha Harlins under circumstances of “great provocation, coercion and duress.”

In remarks that have come under particular scrutiny by the district attorney’s office, Karlin blamed the shooting in large part on Du’s weapon, a .38-caliber revolver that had been altered to make it easier to fire.

“I have serious questions in my mind whether this crime would have been committed at all but for a defective gun,” Karlin said.

A jury last month found Du guilty of voluntary manslaughter for shooting Harlins in the back of the head inside the Empire Liquor Market in South-Central Los Angeles. Du shot Harlins as the girl was walking away after a fight over a $1.79 bottle of orange juice, which Du had accused Harlins of trying to steal.

Gibbons said Karlin’s remarks about the gun call into question her acceptance of the jury verdict.

“By returning the voluntary manslaughter verdict, the jury said, in effect, that the intent was there when Mrs. Du shot Miss Harlins in the back of the head,” Gibbons said. “If the judge disagreed with that, (and) felt it was an accident, the judge had other avenues than to try to remedy that with the sentence she imposed.”

In choosing not to send Du to prison, Karlin, a former federal prosecutor appointed to the bench in July, rejected the advice of the prosecutor and the county probation officer, both of whom said Du was not suitable for probation and recommended the maximum term of 16 years in prison.

Deputy Probation Officer Patricia L. Dwyer, a 25-year veteran of the county Probation Department, was so struck by Du’s apparent lack of remorse that she accused the grocer of exaggerating her injuries to manipulate public opinion and concluded in her report that “any guilt or remorse (Du) holds in regard to this offense is related to the prosecution of the case and the possible consequences.”

While judges often deviate from probation report recommendations, probation officials and some legal experts said it is rare for a judge and a probation officer to have such widely divergent views on what constitutes appropriate punishment.

“I can remember only a few times in my long career when a person got no time in custody (in cases that) we recommended a maximum sentence,” said Carol Koelle, a 32-year employee of the Probation Department who oversees adult probation cases. “It does not happen very frequently.”

Marc Mauer, assistant director of the Sentencing Project in Washington, a nonprofit group that researches crime and justice issues, said Karlin’s brief tenure on the bench and the high visibility of the case may explain the dramatic disagreement.

Mauer said many probation officers, in an effort to have their suggestions accepted, make recommendations “in line” with a judge’s philosophy and previous rulings--an unknown when a newly appointed judge hears a case. When in doubt, probation officers frequently recommend tough sentences to “play it on the safe side,” he said.

Judges, meanwhile, typically regard high-publicity cases as a report card on their tenure on the bench, Mauer said.

“No one is going to tell you that, but when there is (media) attention, everyone has got to be concerned with how they are going to look,” Mauer said. “The judge’s oath of office isn’t supposed to take that into account, but it is a fact of life.”

Dwyer and Karlin declined to be interviewed for this story.

In placing Du on probation, Karlin reached several conclusions contrary to those presented by Dwyer in the probation report. On the crucial question of remorse, Karlin said Du’s failure to convey regret to the probation officer was “more likely a result of language and cultural differences rather than a genuine lack of remorse.”

In her report, however, Dwyer said she had reviewed a large volume of material before reaching her conclusion--and even interviewed Du a second time because the woman “did not accept responsibility for the offense and expressed no remorse for what had occurred” during their first meeting.

“In (Du’s) written statement, and statements of the treating psychiatrist, family and friends, there is considerable discussion of (her) remorse and regret for this incident,” Dwyer wrote. “The probation officer found little indication of these feelings and instead found (Du) to continue to express justification for the killing of Latasha Harlins, even to the point of stating that her fear was so great at the time of the incident that she would behave the same if the situation were to recur.”

The probation report also raised questions about what it termed “serious flaws” in Du’s character. Dwyer concluded that it was Du’s “regard for black citizens tinged with suspicion, fear and contempt” that “set in motion a chain of events” that culminated in the March 16 shooting.

“The girl who approached the counter with money in her hand presumably to pay for the purchase of orange juice was confronted by (Du), accused of theft and physically accosted,” Dwyer wrote. “While (Harlins) may have responded with excessive force, (Du’s) response was horrifying as (Du) in an uncontrollable rage shot the girl in the back of the head as she attempted to leave.”

Karlin, by contrast, scolded prosecutors for ignoring the “real terror” experienced by Du and her family before the shooting as they operated their business in a crime-ridden neighborhood.

“Did Mrs. Du react inappropriately to Latasha? Absolutely,” Karlin said. “Was Mrs. Du’s over-reaction understandable? I think so.”