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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 3 of 4

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."

About The Author

Peter Jamison


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