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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

Page 2 of 4

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.

About The Author

Peter Jamison


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