blogs.venturacountystar.com/the_court_reporter/2013/02/andrew-lusters-hearing-continue-on-monday-afternoon-with-more-defense-testimony.htmlAndrew Luster's Hearing Continues on Monday Afternoon With More Defense TestimonyBy Raul Hernandez on February 24, 2013 8:46 PM
One remark at the hearing of convicted rapist Andrew Luster seemed to sum up the case against Luster, a high-profile case that drew national coverage.
"Geraldo Rivera was running around, and it created a lot of buzz," former prosecutor Bill Haney said last week in response to a question about the media.
The District Attorney's Office, headed by then chief prosecutor Michael Bradbury, tabbed high-profile cases like Andrew Luster as "Special Interest" cases that required special handing by prosecutors because they attract an army of reporters, according to court testimony last week at Luster's hearing.
These "Special Interest" cases were monitored by Bradbury, and his policy was to approve any plea agreements, no exceptions, according to court testimony.
In this case, the heir of the Max Factor cosmetics fortune was accused using GHB and drugging and raping three women at his Mussel Shoals beach house in North Ventura County. Luster video recorded the rapes of two of these women.
One woman was snoring in a recording after being given the date-rape drug, and Luster labeled one of the rape recordings, "Shauna GHBing," the evidence showed.
A Prosecutor Pointed to What Others Say Was The Obvious
Prosecutor Anthony Wold testified that the recorded rapes were "painfully sadistic acts" by a man who defense witnesses said had the brain of a child inside a grown man's cranium.
The media flocked to the Hall of Justice after Luster's arrest, and this, seemed to set the tone after Luster's arrest, and the coverage increased after his subsequent flight in the middle of his trial to Puerta Vallarta, Mexico.
There, Luster surfed, drank high-end Tequila and fished while being holed up in a Mexican Motel.
Luster's Second Set of Lawyers Want His Sentence Reduced.
Luster's lawyers, Jay Leiderman and David Nick, who successfully filed a writ habeas corpus, citing ineffective assistance of counsel in the rape trial and other legal issues are asking for Luster's 124-year sentence to be reduced and his conviction set aside.
An appeals court agreed to the pleadings in the writ in 2012 and allowed a hearing.
The lawyers are also argued in court this week that this case quickly turned into a "media circus" but Luster's first batch of hired legal guns hadn't bothered to submit legal papers requesting a change of venue to try and have the high-publicity case moved to another county.
Wold testified that Luster's former lawyers at his rape trial basically maintained at his court proceedings two things: That the victims were pretending to be asleep or had consented to be violated while they were conscious.
Wold and Luster's defense team, especially Attorney Richard Sherman, had an acrimonious relationship in court, according to court testimony.
Wold said he didn't trust Sherman who, he said, twisted and distorted his conversations with him, noting that Luster and his investigator Bill Pavelic appeared to be running the show and telling lawyers during court proceedings what questions to ask.
Sherman was aggressive in court and file frivolous legal motions and get countless trial delays.
The defense including investigator Bill Pavelic alleged prosecution misconduct and accused the district attorney of hiding evidence, including DNA evidence from one of the rape victims who allegedly had sex with three other men just prior to being raped by Luster.
This rape wasn't video recorded, and Pavelic called this victim a "pathetic liar" during his testimony last week. He told the judge that Luster's "celebrity status" made him an easy target for the district attorney and law enforcement.
Prosecutor Michelle Contois said in court Luster always maintained his innocence and never wanted to plea guilty. He rolled the dice and lost and now, Luster is unhappy, according to Contois.
Still, critics, including criminal attorneys, said with the mountain of evidence against Luster was to great and that the trial could have been moved to a goat-herding country in the Middle East and the results would have been the same once prosecutors pressed the play button on the video recorder.
But what lead to a sentence where the judge probably used a pocket calculator to figure out the number of years on each of the 86-counts Luster was convicted on and arriving at a 124-year sentence?
It might have been the continuous and bitter courtroom clashes between Luster's legal dream team and the iron-fisted District Attorney's Michael Bradbury's prosecutors who had their marching orders.
All this was also coupled with the fact that many reporters were chasing a story about a millionaire surfer accused video recording the two of the three rapes of women and joked about it like a high school prankster while recording the women.
The Andrew Luster "Media Circus" and Former DA Michael Bradbury's Office
It was no secret.
Former District Attorney Michael Bradbury protected his office's projected public and political image as a California's toughest prosecutors with evangelistic zeal, according to his critics.
Bradbury didn't want that image soiled or smudged and frowned at prosecutors who he perceived had "embarrassed" the office or not followed his rules, say critics.
Bradbury often didn't fire wayward lawyers who fudged or didn't follow his rigid policies, according to Adam Pearlman, a former prosecutor who testified at Luster's trial. They were banished like him to the basement of shame - the Child Support Unit - where prosecutorial careers go to die, according to Pearlman and other former prosecutors.
Pearlman testified that he was the first prosecutor who handled the Luster case. There were at least three others.
Bradbury's critics said Bradbury was a "hands on" prosecutor who had to sign off on any plea bargain deals involving very serious felonies, especially "special interest" cases.
There is no doubt that Bradbury whose office was on the third floor wasn't aware that Geraldo, a crew from 48 Hours and many other reporters were also roaming the halls asking dozens of questions, sizing up different angles.
Bradbury retired in 2003 and his second in command, Greg Totten, who was elected as district attorney, stepped into his shoes.
Andrew Luster's Arrogance and His Small Army of Hired Legal Guns
Some media photos and TV video show a well-groomed and confident Luster with his defense team walking down the hallway at the Hall of Justice. Luster appears to have a smug smile on his face.
His small army of defense attorneys included James Blatt, Joel Isaacson, Richard Sherman, Roger Diamond, two investigations, including Pavelic.. In addition, there was a DNA attorney whose specialty and sole purpose was to tackle issues involving DNA issues in this case.
There were brief discussions by Luster's trial lawyers on whether to hire a "fetish film expert," according to court testimony.
Many Times Luster's Personality Got in the Way of His Defense
Last week. Luster's friend Darryl Genis apologized to Luster before telling the judge that Luster was "childlike" and described him as someone who wasn't concerned about money, was well traveled and surfed in various beaches.
"His childlike nature lead down a number of different paths," said Genis.
Luster was a confused man that could be easily manipulated and was getting conflicting legal advice, Genis said.
Others testified that his need for a father-figure lead him to hire a 70-year-old Attorney named Richard Sherman who drained his bank account and a week before Luster's rape trial disappeared, never to show up in court again.
Luster's father died when he was 9-years-old.
Luster was left with Attorney Roger Diamond whose role from questioning a few witnesses was now relegated to being the lead lawyer in the rape trial, court testimony indicated.
Sherman surfaced again in the middle of the rape trial and contacted Luster told him about a plan he hatched to help him flee to Mexico, saying that Luster's life was in danger.
An Offer to Serve Eight to 12 Years Behind Bars In Exchange for a Guilty Plea to Rape
Defense lawyer James Blatt testified that the DA then prosecutor John Blair offered a plea bargain of eight to 12 year sentence in exchange for a guilty plea. But Luster's other lawyer Joel Isaacson believed that he could use the consent defense.
But Isaacson later testified that he told Luster the truth about the seriousness of the charges, and said that in one case, where there was no video recording, there could be a defense that the sex was consensual with one victim. Isaacson, however, said he told Luster to consider a plea agreement because he was facing 100 years.
"I don't beg people to plead guilty. It's their life, their case," Isaacson testified.
Former Senior Deputy District Attorney John Blair testified that the plea bargain offer was made by Luster's lawyers and as with any plea offer at that time, he said he simply wrote a memo to his superiors on June 5, 2001 stating that Luster was willing to plead guilty to two counts of rape.
"They asked me to put something in writing, which I did," said Blair who is now a court commissioner in San Diego.
Blair said the memo had to submitted to Bradbury who never acted on it, although his initials are on it.
Defense attorneys, who insist that this plea offer was made by the DA, argued that Luster would have accepted it if his lawyers would have done a better job of communicating to him the perils of going to trial.
Leiderman and Nick said some Luster's former lawyers including Sherman who, they quipped, arrived in a "clown car," were simply siphoning his finances, bungling the preparation and defense of this case and making the courtroom atmosphere with the prosecutor and law enforcement so "toxic" that there left no room for any plea agreement.
Luster's financial advisor Albert Gersh testified that Luster's rape-trial lawyers emptied out Luster's financial account, and he believed that $280,000 left in Luster's account could have been used to flee to Mexico.
Luster was promised this money by Sherman and his investigator Patrick Campbell who can't be found, according to defense lawyers. Luster was never given a dime from the $280,000.
The Defense Team Gave Judge Kathryne Stoltz a Heads Up on Investigator Bill Pavelic.
Luster's lawyers indicated told Judge Stoltz that Pavelic allege mood swings and unpredictable temperament on the stand so he could be problematic and his testimony might last longer than expected as a difficult witnesses.
On the contrary, Pavelic's testimony was straight forward, level-headed and never raised his voice on the stand.
Pavelic, a retired investigator and former Los Angeles detective who worked on the Luster case, testified last week that his investigation showed that one of the victims, a UCSB student, had sex with three other men along with having sex with Luster and had been to nightclubs in Santa Barbara.
Pavelic said the district attorney refused to test the condom used on the female student for DNA evidence or look at nightclub video surveillance recordings. He said Luster was initially arrested for kidnapping because the victim reported the alleged date-rape to the Santa Barbara Police Department officers who notified Ventura authorities who began an investigation on Luster.
Pavelic said the UCSB student was a "pathetic liar" and very promiscuous.
Pavelic said he recommended several defense lawyers to Luster, including attorney Richard Sherman. Pavelic said he worked with Sherman on the John Gordon Jones case. The 46-year-old millionaire and businessman was found not guilty in 2001 of sexually assaulting nine women, seven of whom were allegedly drugged with GHB, according to court testimony.
Sherman was one of the attorneys in the Jones case and in that case, prosecutors were also accused of misconduct.
Sherman, who was in his 70s was very charming and persuasive and became like a father figure to Luster, soon began to use scare tactics on Luster, saying he was going to be killed in prison or by Ventura authorities, Pavelic said.
While in jail, Pavelic said Luster called him every day, seven or eight times a day and told him that he was fearful and suicidal. Pavelic said jail deputies told Luster that they would push him down the stairs and nobody would question what happened.
Both defense lawyers and Contois agreed in court that Sherman helped Luster escape to Mexico and testimony indicated that Sherman was the focus of a federal grand jury investigation about Luster's flight to Mexico.
Sherman is now deceased but denied the allegations before he died.
During her turn to cross examine, Contois said she had no questions for Pavelic who was on the stand for about an hour.
But both defense lawyers and Contois agreed and entered a stipulation in court that Sherman helped Luster escape to Mexico.
Luster's ex-girlfriend Valerie Balderrama and the mother of his two adult children, Connor and Quinn, testified last week that she didn't know that a "stressed and concerned" Luster was going to flee to Mexico.
"He felt that he was innocent and didn't deserve 10 years," said Balderrama.
Adding, "I just knew that he felt that he didn't deserve to go to prison."
A Former Judge Testified That Luster's Case Shouldn't Have Gone to Trial
Defense witness, retired Judge Arturo Gutierrez, testified at the hearing that plea deals were always struck up by prosecutors without the approval of Bradbury or Totten or their supervisors.
One way to sidestep the DA and supervisors' approval was by getting some of the judges to sign off on plea agreements and making it appear that it wasn't being offered by them not the DA.
"This case isn't worth what my supervisor wants. The punishment they want is too severe," Gutierrez said some prosecutors would basically complain to him.
Gutierrez, who took the bench in 1981, testified solely about the criminal justice practices and policies during the time he was on the bench.
Gutierrez, who retired in 2008 said the Luster case should have never gone to trial, saying that it should have been settled. He said the eight to 12 year sentence that Luster said prosecutors offered him was "average" for similar type of rape cases at that time.
The Judge Bans Cameras In the Courtroom and The Lawyers Agree to Gag Themselves.
Judge Kathryne Stoltz, a retired justice who was assigned to preside over Luster's hearing, banned cameras in the courtroom because lawyers say they don't want pre-trial publicity in case Luster is retried.
In the middle of the hearing, Jay Leiderman and David Nick told the judge that they had reached another stipulation with prosecutor Contois that they would no longer make comments to the media during the court proceedings.
During a court recess, Judge Stoltz ordered that a TV camera set up in the hallway just outside the courtroom last week be turned off after defense lawyers complained about the cameras being there.
The courtroom deputies ordered the camera to be turned off.
The Heir to the Max Factor Cosmetic Empire Arrives with About Four Feet of Chains on His Body
Luster, now 49 years old, comes into court wearing a chain around his waist and his ankles are shackled and his hand is handcuffed to a chair.
Luster's lawyer Joel Isaacson testified that he didn't recall talking about a possible movie about Luster's ordeal. The judge who presided at Luster's trial for rape, Ken Riley, was interviewed by Fox New's Bill O'Reilly about the case, according to court testimony.
Luster, who is the heir of cosmetics giant Max Factor Sr. and an heir to the Max Factor cosmetics fortune, has been in prison for more than 10 years.
In court and dressed in jail garb, Luster, who looks thinner, unshaven and fatigued, will occasionally lean over and quietly ask questions or talk to his lawyers.
