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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
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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."


When it comes to criminal law, San Francisco has always been a defense attorney's town. Described as a "prosecutor's hell" by Hallinan, the city has liberal social instincts and a high education level that make for a jury pool observers say leans distinctly in favor of the criminally accused.

When you combine those jurors with a historically talented and aggressive defense bar, prosecutors have their work cut out for them. Lore in the D.A.'s office at 850 Bryant has it that years ago one new prosecutor, who had been recruited from out of state, jokingly dubbed its homicide division the "manslaughter division," a nod to the frequency with which murder cases resulted in convictions on lesser charges.

Because of the control they exercise over which cases to pursue, prosecutors typically enjoy overwhelming trial success margins. The Alameda County D.A.'s office, for example, which handles criminal cases in Oakland, had a 92 percent felony trial success rate in 2009, according to office spokeswoman Teresa Drenick.

"I practiced in other courts, and tried cases in other courts throughout the state," said former Chief Deputy Public Defender Peter Keane, now a professor at Golden Gate University School of Law. "I tried cases in Alameda County, in Sacramento County, in Los Angeles County, and in places like Orange County. I can tell you that San Francisco is a defense attorney's dream, in terms of juries, where other places are nightmares."

Yet some veteran courtroom practitioners dispute the characterization of San Francisco juries as lenient, at least when it comes to violent crime.

"You bring murder cases, they've got no problem with those," said former San Francisco prosecutor Jim Lassart. "You bring sexual-assault cases, they've got no problem with those. You bring good home-burglary cases, they've got no problem with those. I live in the city. I have wacky neighbors, like we all do, but they're not that wacky. They're lenient in their attitudes, but not on everything. Not on serious violent crimes."

Statistics suggest that those are some of the very cases San Francisco prosecutors have started to lose. In 2006, 2007, and 2008, Harris obtained convictions on murder or voluntary manslaughter charges for 86 percent of defendants in homicide trials, according to records from the D.A.'s office. (Convictions in murder trials on involuntary manslaughter, a charge typically reserved for unintentional killings such as those resulting from drunk-driving accidents, are normally considered failures by prosecutors.) In 2009 and the first part of 2010, by contrast, only 55 percent of those defendants were convicted.

Prominent felony trials lost by prosecutors at the D.A.'s office during 2009 and 2010 include:

• Alleged Visitacion Valley gangsters Joc Wilson, Floyd Jackson, and Emon Brown were acquitted following a double-murder trial that lasted five months. Despite the prosecution's use of DNA evidence implicating one of the defendants and four eyewitnesses from a neighborhood notorious for its reluctance to cooperate with police, the jury returned not-guilty verdicts on all charges after just a day of deliberations.

• DeEbony Smith, a Western Addition resident with 16 prior police-reported instances of violent behavior, was accused of first-degree murder after she killed her ex-boyfriend by stabbing him during an argument in his car. She was acquitted after Teresa Caffese, her lawyer and the chief attorney in the public defender's office, presented evidence that Smith had previously been abused by her victim.

• Leroy Brown, a 65-year-old resident of the Tenderloin, stabbed a man to death for allegedly selling him $10 worth of fake crack. Although the exchange leading up to the killing was caught on video cameras, Brown's lawyer argued that he acted in self-defense, and the jury acquitted Brown of murder. Instead, he received an involuntary manslaughter conviction.

• Nicholas Batchelor, a 28-year-old night grocery clerk, stabbed off-duty San Francisco Police Sgt. John Burke with a spring-assisted knife following a road-rage altercation that took place while Batchelor was driving through the Haight. Batchelor was acquitted of assault with a deadly weapon; while he acknowledged stabbing the cop, stashing the knife in the trunk of his car, and leaving the scene of the crime, he claimed that the action was done in self-defense after Burke struck him in the face and tackled him.

Even criminal-defense lawyers admit some surprise at how their fortunes have turned in the courtroom. "It seems unusual to be winning so many serious cases," said Deputy Public Defender Steve Olmo, who represented Wilson.

While the at-trial performance of the San Francisco D.A.'s office through successive administrations is difficult to track, there is evidence that Harris has been even less successful than her predecessors.

Reliable record-keeping at the San Francisco Superior Court began only several years ago, after Harris had already assumed office. But telling statistics can be found in California Department of Justice records. While the department does not specifically track prosecutors' performance at trial, it does record annual courtroom acquittals.

During the three years leading up to 2008 — the most recent year tracked by the department — Harris had a total of 83 felony trial acquittals. Hallinan had 51 during his final three years in office, and former D.A. Arlo Smith just 12. (All three filed comparable numbers of felony charges over that time, so the differences aren't due to caseload volume. Buckelew questioned the veracity of the D.O.J. data, noting that numbers of acquittals under Hallinan and Smith seemed "way too low.")

In other words, even allowing for the skeptical bent of San Francisco jurors, statistics suggest that when it comes to trial performance, something has changed for the worse at the D.A.'s office. What's going on?


Earlier this year, Deputy Public Defender Carmen Aguirre said, she had an exchange with a counterpart in the D.A.'s office that illustrates a possible answer to that question. Aguirre was representing a defendant, Raynard Cooper, charged with assault with a deadly weapon. The victim had disappeared and was unavailable for cross-examination at trial, and she and an assistant district attorney were fighting over whether his testimony during a preliminary hearing should be admitted as evidence.

In a sidebar at the bench that took place during a courtroom hearing, Aguirre said, the prosecutor made an admission to her and the judge. "I'm not going to fight to allow this transcript into evidence," the assistant D.A. said. "I actually believe that this man may be innocent, but my hands are tied by my office." The prosecutor dismissed the case only after the judge granted the defense's motion to exclude the victim's statements, making a conviction virtually impossible.

It was a strange episode, and not just because prosecutors are morally obligated to dismiss cases in which they don't believe the defendant to be guilty. Aguirre said the exchange also shed light on broader changes she and other lawyers have noticed at the D.A.'s office. "That's the problem," she said. "The office is encouraging this. This guy, if he did what he felt was right, he would have been putting his job on the line."

While Aguirre did not share the names of the defendant or prosecutor with SF Weekly, saying she did not want to get the assistant district attorney into trouble, the defendant's name was provided by the D.A.'s office. According to court records, the prosecutor who handled Cooper's case was Tony Hernandez.

Asked about the incident, Buckelew disputed the details of Hernandez' exchange with Aguirre, saying the prosecutor "had frank conversations about the weakness of the case" with her but never asserted the defendant might be innocent. (Hernandez could not be reached by press time to discuss details of the case.) Prosecutors should unequivocally drop cases they don't believe in, Buckelew said.

Nevertheless, some current and former criminal attorneys interviewed by SF Weekly said Harris has adopted more inflexible charging procedures to look tough on crime for the attorney general's race, countering doubts that might arise among state voters because of her refusal to seek the death penalty in murder cases.

"There's this whole perception that San Francisco is soft on crime," Olmo said. "They want strikes. They want prison. I think it's a lot of politics." Even if a bad case goes to trial, he noted, "They can blame it on the jury. They can say, 'Well, we tried.'"

These observations aren't confined to prosecutors' adversaries on the defense bar. A veteran San Francisco prosecutor, who left during Harris' current term after more than two decades as an assistant D.A. and requested anonymity to discuss the office's workings candidly, described an atmosphere in which assistant D.A.'s were pressured by managers to boost conviction and sentencing statistics, rather than fulfill their ethical duty to seek justice.

"Prosecutorial discretion was a joke," the former assistant D.A. told SF Weekly. "A lot of [assistant] D.A.'s became afraid of actually exercising any type of discretion. As a result, they push it forward all the way."

To make things worse, the former prosecutor said, many of the managers granted new control by Harris over individual case decisions were inexperienced trial lawyers promoted for their loyalty to her administration and political goals: "It was turning more political. People were being moved around so fast, too fast. This is your end result, the conviction rate dropping. Brain drain — that's what happened at the D.A.'s office."

There is some irony to criticisms suggesting that Harris' efforts to get tough on crime have led to a poor trial conviction rate. One of the hardest knocks on her during her early years in office was that she was unwilling to take homicide cases to trial or seek tough sentences, instead letting defendants off with pretrial pleas or refusing to file charges at all based on arrests made by the police.

Chris Kelly, a Facebook executive and attorney who is running against Harris in the Democratic primary, continues to argue that her alleged reluctance to pursue some cases — particularly when combined with a low at-trial conviction rate — is evidence of her ineffectiveness.

"This is yet another disappointing example of San Francisco District Attorney Kamala Harris' revolving door for criminals," Kelly said in an e-mail response to information shared with his office by SF Weekly. "Not only is her office not charging crimes, now they're even failing to get convictions on those limited cases they choose to bring to trial."

Claims about Harris' reluctance to file charges are dubious. Department of Justice statistics reveal that in 2008, she charged more than 67 percent of felony cases brought to her by police officers, the highest rate of prosecutions based on arrests in the past 18 years. When it comes to serious violent crimes, it's clear that prosecutors are now taking many cases forward. They're just not always winning.


It comes as no surprise, of course, that defense attorneys lament Harris' more aggressive stance on crime, particularly since it appears to have paid dividends in the form of a higher overall conviction rate — despite decreasing numbers of trial convictions — and tougher sentences. In 2008, according to state statistics, close to 15 percent of convictions resulted in prison sentences, compared to just 8 percent during Hallinan's last year in office.

Buckelew, a front-line assistant district attorney himself, said Harris has made no secret of her tougher stance on some offenses, notably robberies and home burglaries, for which prosecutors are now demanding prison time rather than acceding to the old defense refrain of "probation and a program" for rehabilitation.

"There's been a paradigm shift with respect to certain classes of cases," he said. "Robberies in other counties are prison cases. It's a violent felony. At some point, when the crime's at a certain magnitude, the punishment should be at a certain level."

Buckelew did acknowledge that managers' decisions on how to handle cases can sometimes be too rigid, but denied that they were motivated by "tough-on-crime" politics. "I think, on occasion, the individual characteristics of the cases may not be given enough weight," he said. "But it also furthers an important goal — to bring the punishment in line with what it should be."

Buckelew said the 53 percent conviction rate for the first quarter of 2010 was a poor indicator of the office's performance. "That's just too short of a snapshot to say it's a trend," he said. "A lot of tough cases were [tried] in the beginning of the year."

He pointed to trials such as those of Smith and Brown. On closer inspection, some justifiable reasons for these losses become apparent. In the case of Smith, a judge ruled that most of the police reports on her past violent behavior couldn't be admitted into evidence, while her victim's history of domestic violence was presented more fully at the trial.

Brown, an Air Force veteran, was lucky in his choice of victim, a man two decades younger than him who witnesses testified had attacked multiple Tenderloin residents in the previous year. In the double-murder acquittal of the alleged Visitacion Valley gang members, the eyewitnesses were unable to firmly identify all the defendants at trial; defense attorneys argued that a defendant's DNA, found on the bicycle used by one of the murderers, could have been deposited there before the crime occurred.

Buckelew also noted that prosecutors have secured first-degree murder convictions in several difficult and high-profile cases in the past two years, including those of former reality television show contestant Jamal Trulove — whose conviction earlier this year relied on a single eyewitness — and Julio Melendez, convicted last year in a 13-year-old shooting that followed an argument at the El Toro nightclub.

The push for tougher sentences and more convictions hasn't always been consistent. At times, the D.A.'s office has evidenced a bizarre dichotomy between hard-line approaches to some cases and shows of len-iency in others.

Last summer, for example, came the case of Earl Davis, who robbed a Starbucks near the Panhandle weeks after serving a sentence for battery in the San Francisco County Jail. Davis was caught on video, and the police officers who arrested him wanted a stiff prison sentence.

Instead, he was let off with a second-degree robbery plea and sent back to the county jail for nine months. In an unusual move, the cops who arrested him took their complaints to reporters at KGO-TV, who ran a news spot ominously titled, "Is San Francisco too soft on crime?"

Such easily secured plea deals — scored as "convictions" for the purposes of office record-keeping and official state crime reporting — might help explain how overall felony convictions remain high, even while the trial conviction rate drops.

Whether the charging decisions are too hard or too soft, a general absence of wise decision-making on when to hold and when to fold a case is a plausible explanation for a trial conviction rate that has dropped as low as San Francisco's, according to Robert Weisberg, codirector of the Criminal Justice Center at Stanford Law School.

"It's more likely to be a problem in the overall structure of case selection and allocation of lawyers than quality of blow-by-blow trial strategy," he said. "When you get down to something like 50 percent, there's something funny going on."


No amount of explanation or analysis will bring much comfort to those who don't see justice done when a prosecution fails. Byron Smith, known as "Beaner" to friends and relatives, is still remembered fondly in the run-down corner of Visitacion Valley he called home. On Sept. 2, 2007, Smith was gunned down in a garage on Velasco Avenue by two men on bicycles.

"He started having kids really young. He ended up with five. He was a visible father. He was there," said one of Smith's family members, who requested anonymity because the three men accused of murdering him were acquitted.

The case against Smith's suspected killers — Wilson and Brown — was tough from the start, but prosecutors had a few unusual advantages. Wilson's DNA had been found on one of the bicycles, and bystanders who witnessed various stages of the murder agreed to testify.

Police alleged that Smith had been an active gang leader, his slaying the latest strike in a turf war between the Sunnydale projects' Down Below Gang and Towerside gang. Along with a third man, Floyd Jackson, Wilson and Brown were also charged in the shooting death of Brandon Perkins the previous month. It was widely believed in Visitacion Valley that the three young men who were arrested had been responsible for the murders, according to a longtime neighborhood resident who also requested anonymity. "Even their parents probably don't think they're innocent," the resident said.

In February, all three were acquitted of murder charges and walked out of the Hall of Justice free men. "I'm thinking that the jurors either were threatened or something had to have happened," Smith's relative said. "From my understanding, [the prosecutors] had the guns, they had [the accused], they had witnesses. So what more do you need?"

The family member was particularly frustrated that the witnesses' testimony didn't produce a guilty verdict. "I feel sorry for Byron's wife and kids. But more than that, you know who I feel sorry for? That lady who put her life on the line to come forward and said she saw it. You finally get someone to say something, and you don't even secure a conviction?"

This is why trials, and their outcomes, are central to the proper functioning of the criminal justice system. Prosecutors nationwide take felony trials seriously because they are law enforcement's ultimate proving ground. Failure before a jury disappoints those who seek justice — victims, witnesses, cops — and encourages those who defy it.

In the words of Public Defender Jeff Adachi, a trial is "the ultimate test." Harris has no shortage of political aplomb, and can justifiably point to an arsenal of public safety statistics, from stiffer prison sentences to higher numbers of charges filed, that indicate fronts on which her office is doing well. But this is one test she isn't passing.

About The Author

Peter Jamison

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