Brady's freedom an issue

      Call it the "Christopher Brady defense."
      Brady, 25, has admitted to being with former police officer Ronald Mortensen Dec. 28, the night Mortensen is accused of shooting out of a truck window and killing 21-year-old Daniel Mendoza.
      But Brady, a police officer at the time, claimed he didn't know a man had been killed until the next day. About 36 hours after the shooting he came forward to police and gave a voluntary statement. A grand jury indicted Mortensen, 31, on a murder charge in January.
      The indictment was based largely on the testimony of Brady, who is not facing criminal charges. As Mortensen's case winds through court, Brady is now becoming the focus of legal debate.
      Some defense attorneys say there could be future ramifications for defendants who are present but not directly involved in crimes. Community activists and other attorneys claim the decision not to charge Brady, who is white, smacks of racism and police protecting their own. Prosecutors maintain their decision was based on the unique facts of the case and that generalizations about who gets charged and who doesn't do not apply.
      From a defense attorney's standpoint, the decision could weaken prosecutions against some of their future clients.
      In the aftermath of this case, veteran defense attorney David Schieck said, a teen-ager who happened to be in the car when some gang-bangers committed a drive-by shooting may have a stronger defense than ever before.
      "You can say, `Look judge, my client was just driving the car. And the district attorney's office has already told us they don't consider that a crime.' You can always say, `My client is in the same position as Brady was, and he's being treated differently.' "
      The argument of unequal treatment is clear to anyone who has defended a similar case, Schieck added.
      "If you're a minority in a car when a drive-by shooting occurs you'll be charged. The district attorney's office says, `If you're not guilty, the jury will acquit you.' That's usually how it works. They let the jury sort it out," Schieck said.
      Now, he said, "when you are trying to negotiate a case, everyone has a compelling argument that there's an equal protection violation involving a client who's being charged just for being in the car."
      But Chief Deputy District Attorney John Lukens contends such comparisons are useless because the facts of this case are vastly different from those of typical, gang-related drive-by shootings.
      For example, Lukens said he can't remember a drive-by in which someone came forward voluntarily and essentially solved a crime for police.
      What usually happens is someone who witnessed a crime is charged as an accessory after the fact for not reporting it to the police, Lukens said, adding that sometimes that charge is dismissed or lowered in exchange for testimony.
      Brady couldn't be charged that way, Lukens said, because he showed no intent to cover up the crime -- once he realized it had occurred.
      "If someone comes to me with a client who witnesses a homicide (and) says, `I had nothing to do with it, but I saw it, I'll testify, and here's the murder weapon,' I'd say `wonderful.' "
      "I imagine there is some technical violation he has admitted to for which Mr. Brady might possibly be charged," Lukens added. "But we don't just charge everyone. We wouldn't charge someone unless there is a reasonable likelihood of sustaining a conviction. The key word here is evidence. We don't have any evidence that would sustain a prosecution of Mr. Brady."
      Defense attorney Thomas Pitaro disputes that claim.
      "What about drunk driving? What about reckless driving? What about harassing citizens? What this is saying is that everything Brady was doing up to that point when the gun went off is OK."
      Drunken driving, Lukens noted, requires a blood-alcohol test or some other evidence to hold up in court.
      "If I went in to the police and said, `I think I had a few too many last Saturday and then drove,' could they arrest me?"
      That would leave Brady as merely being present at the scene of a crime, which is not in itself a crime, he said.
      Defense attorneys often argue "mere presence" -- that their clients just happened to be there, lawyer Anthony Sgro said.
      "For every fact that's absent -- my guy didn't have a gun, he had no motive, there was no nexus between my client and the victim -- the more likely it is you'll be successful in a mere presence defense," he said.
      Still, these tend to be uphill arguments at best.
      "The district attorney gets up there and argues to a jury: `It's ridiculous. They were friends. They were out together drinking. It's absurd to conclude the driver didn't know what was going on,' " Sgro said.
      In Brady's case, "now we have the district attorney's office essentially validating that very argument. In fact, they accepted the defense before it was even made. They heard Brady's position and summarily accepted it."
      Again, Lukens said, it came down to evidence. For example, it would have been impossible to prove that Brady should have known Mortensen had a gun and therefore should have known a crime was in the works.
      "Both these guys were police officers. It would have been odd if either one was not carrying a gun," the prosecutor said.
      The question is really whether law enforcement officials would make the same arguments regardless of who is potentially being charged, Pitaro said.
      "Can we really tell a kid named Jose Luis Garcia with a couple of tattoos, maybe once in a gang, associated with a gang, that he will be treated the same as Brady the cop if he winds up in a car with someone shooting out the window?"
      Even if prosecution would be difficult, charging Brady would serve an ethical, moral and therefore practical purpose, he added.
      "The thing that keeps the system going is the perception of fairness," Pitaro said. "The system does not work because of prosecutors and judges. The system works because somehow we get the defendants to cooperate, to accept plea bargains, to answer truthfully and not act crazy in the courtroom. They accept the system on the belief and the understanding that they will be given the same treatment as anyone else.
      "So can we tell them with a straight face, 'You will be treated equally'? No, we can't."
      Lukens said appearances can be deceiving and that those who have claimed racism and have called for Brady's arrest should consider the consequences.
      If Brady were charged, he said, he could invoke his Fifth Amendment right not to testify.
      Then, said Lukens, "the case against Mortensen gets weaker. Would they rather we have a strong prosecution against one, or two weak prosecutions against both?"