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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 4 of 4

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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