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A Lack of Conviction 

As D.A. Kamala Harris campaigns to be attorney general, her success rate in felony trials has dropped below that of any big-city prosecutor in California.

Wednesday, May 5 2010

On a mild Southern California afternoon last month, San Francisco District Attorney Kamala Harris stood on the steps of Los Angeles City Hall and quietly beamed while the mayor of California's largest city announced his endorsement of her candidacy for attorney general. Speaking at a lectern adorned with a blue campaign poster, Antonio Villaraigosa praised what he said were Harris' many qualifications to be the state's top law-enforcement official.

First on the list: a substantial upswing in San Francisco's felony conviction rate since she took office in 2004. "Kamala has spent her entire professional life in the trenches as a courtroom prosecutor," he said. "And she has raised conviction rates in her community to the highest in 15 years."

It was one in a string of high-profile endorsements of the Harris campaign. A week later, U.S. House Speaker Nancy Pelosi announced her support. Despite a storm of negative publicity over problems at the narcotics division of San Francisco's crime lab — where technician Deborah Madden has been accused of skimming cocaine samples, forcing prosecutors to drop hundreds of drug cases — polls indicate that Harris currently enjoys double-digit leads over her most competitive Democratic opponents in the June primary.

Villaraigosa's prominent mention of Harris' prosecutorial vigor was no accident. As a San Francisco politician seeking to enhance her statewide appeal, Harris has made her 71 percent success rate in obtaining felony convictions — a marked increase over the 52 percent rate that her predecessor, famously left-wing Terence Hallinan, logged during his final year in office — a key selling point.

But there's a problem with Harris' central campaign claim. Records obtained by SF Weekly reveal that the performance of prosecutors in the San Francisco District Attorney's office is less impressive than suggested by her much-trumpeted conviction statistics.

The records show that while Harris' overall conviction rate has reached new highs over the past several years, that success is based almost entirely on plea deals negotiated before defendants accused of serious crimes proceed to trial. (Such pleas form the bulk of any D.A.'s convictions.) By contrast, felony convictions for cases that actually go to trial and reach a jury verdict — a comparatively small group that nevertheless includes some of a district attorney's most violent and emotionally charged cases — have declined significantly over the past two years.

In 2009, San Francisco prosecutors won a lower percentage of their felony jury trials than their counterparts at district attorneys' offices covering the 10 largest cities in California, according to data on case outcomes compiled by officials at the San Francisco Superior Court as well as by other county courts and prosecutors. (Officials in Sacramento, the state's seventh-largest city, did not provide data.) Harris' at-trial felony conviction rate that year was 76 percent, down 12 points from the previous year.

In the first quarter of 2010, things got worse. During that time, Harris' office secured guilty verdicts in just 53 percent of its felony trials — a remarkable figure, revealing that defendants accused of serious crimes who took their case to trial had an even one-in-two shot at winning an acquittal. By contrast, the most recent recorded statewide average was 83 percent, according to statistics from the California Judicial Council.

The general decline in felony trial convictions has included more failures in murder cases specifically, according to records released by the D.A.'s office in response to a request from SF Weekly. From January 2009 through the end of last month, according to the records, Harris has obtained murder or voluntary manslaughter convictions for just 11 out of 20 homicide defendants at trial, with the rest acquitted or convicted on lesser charges.

Jim Hammer, former head of the homicide division in the San Francisco D.A.'s office and a member of the city's Police Commission, said the criminal justice system eventually starts to break down if defendants and their attorneys don't perceive tough odds before a jury, and thus have no incentive to agree to plea deals that spare time, conserve resources, and secure convictions in cases that otherwise might be hard to prove in court. In this sense, he said, trial performance is a vital measure of any D.A.'s office.

"Part of the effectiveness of a D.A. in a case is a real fear on behalf of the defense bar that the defense will lose," said Hammer, who worked under Hallinan and is rumored to be planning a run for district attorney in 2011. "If the D.A. is batting .500, it really destroys the effectiveness of the D.A., and it suggests some very deep problem in the office."

Harris declined repeated requests for an interview through her spokesman, Brian Buckelew. Asked about the recent spate of unsuccessful cases, Buckelew said the past year and a half is an insufficient amount of time to look at when asserting trends in the office's performance, and that trials represent a small slice — only 2 to 3 percent — of the thousands of felony cases handled annually. The failed trial prosecutions, he said, were "cases we believed in, and still believe in, but sometimes they don't work out the way we had hoped. But that doesn't mean they shouldn't have been brought to trial in the first place."

Ironically, some observers in the criminal justice system say the lower trial conviction rates stem from politically motivated charging policies Harris has adopted to boost her tough-on-crime bona fides since she announced her run for attorney general at the end of 2008. Critics say these policies, even though they serve the effect of posting higher overall convictions and more severe sentences, also push many weak cases to trial.

The result is a justice system that looks healthy by certain statistical measures, but fails to mete out justice for the city's worst crimes on a surprisingly regular basis. "I think there is an appearance that they are being tough on crime," said Rebecca Young, managing attorney of the felony unit at the San Francisco Public Defender's office. "It's probably an illusion, but when all you care about is appearance, maybe you don't care that it's an illusion."

About The Author

Peter Jamison


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