12.07.2006

The Grand Jury Report on the DA's office

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The Grand Jury Report on the DA's office

Grand Jury Report #2005-LJ-02
An Investigation of the District Attorney Criminal Division
Executive Summary

The Grand Jury investigation of the District Attorney’s Criminal Division was prompted by citizen complaints and the fact that there had been no formal Grand Jury review of any Division of the DA’s office in ten years.

The past two-and-a-half years have been stressful for the DA’s office. Staff has had to adjust to a newly elected DA with no experience as a prosecuting attorney, who was not accustomed to administering a complex department with many employees, and whose management style is radically different from that of the previous DA. The department experienced severe budget cuts, was decimated by a disastrously high rate of staff turnover, and was seriously disrupted by a recall election. In spite of all this, the Grand Jury found the staff to be very hard-working and dedicated to the service they perform for the community.

However, the informed, well-organized, diligent leadership essential during difficult times is missing.

Operations are neither as efficient nor as effective as they must be.

Processing and prosecuting thousands of cases each year requires high-level legal skills including years of courtroom experience. The process generates an immense volume of paperwork. The work of the 13 prosecutors, including the District Attorney and the Assistant District Attorney, is supported by seven investigators, a business manager, and 15 legal/clerical staff, the bare minimum necessary to carry on the work.

It is to be noted that Grand Juror Stephanie Head voluntarily recused herself from any direct participation in the final consideration of this report because of a perceived conflict of interest.

The Grand Jury found a shortage of staff creates backlogs in processing as well as major scheduling problems in providing prosecutors to cover trials and other courtroom appearances. A severe drop in the number of experienced, senior-level Deputy District Attorneys has left the office short of qualified people to handle the charging of cases and to cover special grant-funded assignments as well as limiting vertical prosecution. Experienced replacements for vacant Deputy District Attorney positions are extremely difficult to attract. The “at will” status increases the difficulty of recruitment. The District Attorney has shown a willingness to eliminate positions held by experienced Deputy District Attorneys and to replace them with newly graduated attorneys, and he has fired a long-term experienced prosecutor with no comparable replacement available.

The Grand Jury also found that weak leadership and poor managerial practices have led to problems in communication within the office itself, and, more seriously, with law enforcement agencies, the Board of Supervisors, and the general public. The District Attorney has failed to educate himself thoroughly in office operations and procedures, and does not employ many common, useful managerial tools: he does not meet regularly with the supervisors who oversee his staff; he does not meet regularly with Deputy District Attorneys; he does not meet regularly with law enforcement agencies; he does not provide “at
will” employees with formal performance evaluations; he has no policy and procedures manual for the office; he has no written training documents for new hires. Finally, the Grand Jury found that Penal Code Sections 1192.6 and 1192.7 require that when plea bargains are negotiated by prosecutors of serious felonies, the reasons for the plea bargains must be contained in the record. The Grand Jury found that these reasons were not accessible in court minutes. Although not legally required to be placed in the court minutes, the Grand Jury finds that to make this information readily available to the public and media, it would be beneficial to place the reasons for the plea bargain in the court minutes.

The Grand Jury recommends that the District Attorney:

• hire more experienced prosecutors and clerical staff
• expand and improve communications with law enforcement
• develop and implement written policy and training manuals on handling communication with the
public, especially victims of crime
• meet regularly with department heads
• develop a procedures and policy manual for the division
• improve the office answering system for off-hour calls
• provide written performance evaluations for “at will” employees
• refrain from firing long-term experienced prosecutors – or anyone – except for cause, unless a
comparable replacement has been identified and retained
• reclassify “at will” prosecutors to provide them with more job security
• require prosecutors to request that the reasons for plea bargains be reflected in the court minutes of
cases

Who Shall Respond:

Pursuant to California Penal Code Sections 933 and 933.05, responses to the Findings and Recommendations of the GRAND JURY REPORT #2005-LJ-02 shall be provided as follows:

• The District Attorney shall respond to Findings 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 and Recommendations 1a, 1c, 2a, 2b, 2c, 3a, 3b, 3c, 4, 5, 6, 7, 8, 9a, and 10
• The Board of Supervisors shall respond to Findings 1 and 9 and Recommendations 1b, 1d, and 9b.

Report

Since no formal review of the District Attorney Criminal Division has been conducted by a Grand Jury since 1995, the Grand Jury undertook an investigation of the entire Criminal Division. The Grand Jury also looked into a number of complaints from citizens and agencies concerning the DA’s office. During the investigation Jurors listened to nearly forty hours of testimony, interviewed more than two dozen witnesses, and reviewed many documents. The Grand Jury interviewed the District Attorney, supervisors, clerical support staff, investigators, and prosecutors as well as complainants, law enforcement personnel, and staff of other divisions that report to the DA.

As of May 3, 2005, the staff of the Criminal Division included the District Attorney (DA), the Assistant District Attorney (ADA), and 11 Deputy District Attorneys (Deputy DAs) who prosecute the majority of the cases. In addition to prosecutors, the office includes a Business Manager, seven Investigators including the Chief, two Clerical Supervisors, and a variety of 15 additional support staff. Among the 15 are two who log in police reports, a person who issues subpoenas, another who provides technical support, and one who prepares and enters complaints into the computer.

Process from Police Report to Court

As a group of lay people, the Grand Jury had much to learn about the workings of the criminal justice system in order to proceed intelligently with the investigation. The Grand Jury began by touring the office. The primary job performed by the DA’s office is very complex. The process of moving a case from an initial police report to a trial or some other kind of resolution involves many decisions and reams of paperwork. The thousands of police reports received each year are sorted by type (felony or misdemeanor) and logged into the computer. At every step, priority must be given to “in custody” reports
because a person who has been arrested can be held for only 48 hours maximum before being taken before a judge. Failure to meet this deadline could result in the release of a dangerous felon.

Once reports have been logged, they are distributed to various Deputy DAs who review and evaluate each one to decide if it contains enough information and admissible evidence to warrant filing a criminal complaint. Many police reports don’t get beyond this point and are sent to the desk where rejections are logged. When a charge is filed, the case is sent to a legal office assistant who prepares the legal complaint and logs it into the computer. Staff must deliver the complaint to the Court before the strict 11:00 a.m. deadline, which can effectively shorten the 48-hour in-custody time limit.

The job of charging – making the filing decision – is a critical one, requiring the ability to weigh many variables and recognize cases which have a realistic chance of resulting in a guilty plea or conviction. Charging requires both expert knowledge of the law and years of courtroom experience. A case that is filed and later dismissed often represents a waste of money and staff time, both of which are in short supply.

Some cases are sent for charging to particular deputies who specialize in handling certain crimes such as child abuse, green dope (marijuana), and white dope (methamphetamine or cocaine). These special assignments are usually at least partially funded by grants and are intended to provide a single expert prosecutor to handle such cases from filing of charges on to final resolution. This is called vertical prosecution and is the most effective and efficient way to handle a case. It avoids duplication of effort and provides continuity of prosecution by a single Deputy DA who knows the background of the case,
has a clear idea of what would be an appropriate disposition, and is able to provide consistent and responsive services to victims. Unfortunately this ideal arrangement often is not possible in a small, understaffed department like Humboldt’s.

From January 1, 2003, until May 10, 2005, general felonies were charged by the Chief Charging Deputy, a title to which a great deal of responsibility was attached but no extra compensation. On May 10, 2005, the Chief Charging Deputy was promoted to Assistant District Attorney, with the associated raise in salary. His title changed but his duties, including those described later in this report, remain the same. He must deal with a huge volume of reports covering a wide range of offenses. Misdemeanors are generally routed to the misdemeanor deputies, but because of the shortage of experienced misdemeanor prosecutors, the Chief Charging Deputy is also responsible for charging a considerable portion of the misdemeanor cases.

When a felony complaint is filed, a case evaluation is completed by the Deputy DA who charged the case. The evaluation includes a summary of the case, the criminal history of the defendant, a non-binding recommendation for disposition of the case, and a subpoena roster for the preliminary hearing. This case evaluation then accompanies the file; a copy is also sent to the DA for review and comment.

The first court appearance of the defendant is the arraignment, where he or she hears the charges and has the opportunity to obtain counsel. In a felony case, dates will be set for a felony intervention hearing and a preliminary hearing. At the intervention hearing, the Judge, the Prosecutor, and the Defense Attorney meet to try to resolve the case. This is essentially a plea-bargaining session. If the intervention hearing does not settle the matter, it then goes on to the preliminary hearing at which evidence is actually presented before a judge. If the Judge concludes there is enough evidence, the defendant is bound over for trial, technically “held to answer.” At the preliminary hearing, the Judge can also reduce the charge or completely dismiss the case.

If the defendant is held to answer, a second arraignment is set and the DA’s office has a limited amount of time to file additional paperwork. At this time, new charges may be added as a result of evidence presented at the preliminary hearing.

Following the second arraignment, a pre-trial conference and a trial confirmation hearing are scheduled. Both are opportunities to settle without going to trial. If after all of this there has been no resolution, the case is set for trial. The work involved in a trial requires the Prosecutor to generate volumes of paperwork and to make many more appearances in court than just those for the trial itself. In a case that is not handled vertically, the Prosecutor to whom the case is assigned often has very little time to become familiar with the case and prepare to present it.

If the defendant is found guilty at the trial, or has pled guilty at some earlier stage, the case is sent to the Probation Department. After considering the defendant’s prior criminal history, listening to input by victims, and weighing aggravating and mitigating factors, the Probation Department issues a report and recommendation for sentencing. A sentencing hearing is held before a judge where both prosecution and defense present arguments for an appropriate sentence. Victims also have a right to appear at this hearing. The Judge takes all this into consideration and makes the final decision as to the sentence. By the time the initial police report has progressed to this point, the process has amassed piles of paperwork and required many appearances by prosecutors.

One of the greatest challenges faced by the office is scheduling. Under the current DA, this daunting task had been handled by the Chief Charging Deputy until May 10, 2005, when his title was changed to Assistant District Attorney. Since his promotion to Assistant DA, his duties remain the same. Acting as “Chief of Staff,” he handles many administrative duties: overseeing the production and flow of legal paperwork, representing the DA’s office at numerous meetings, organizing and producing multiple schedules, and assigning cases to prosecutors. His job is greatly complicated by the way the Humboldt
County Superior Court system is organized. Trials are held in the morning and prosecutors must be scheduled to cover all of them. Cases are randomly assigned to courtrooms. Therefore, a prosecutor may have cases scheduled simultaneously in different courtrooms. In such situations, vertical prosecution is not possible. This requires a second prosecutor to be appointed on short notice. The unpredictability of the length of trials and the limited number of felony prosecutors are constant scheduling problems.

Each week, the Chief Charging Deputy posts a jury trial schedule, a list assigning Deputy DAs to preliminary hearings, and a schedule for calendars which the Courts handle in the afternoons. Calendars include procedural and non-evidentiary matters such as hearings on motions, setting dates, deciding bail, and otherwise managing cases. There are five departments or courtrooms as well as juvenile court. Each must be covered by prosecutors five afternoons a week. Every week, each department hears two days each of felony and misdemeanor calendars and a miscellaneous calendar on Friday. Two prosecutors, one felony and one misdemeanor, are usually assigned to alternate days in each courtroom, with Fridays
generally being covered by the felony prosecutor. This system is complicated by the fact that attorneys are sometimes out of the office for such things as mandatory continuing legal education, sickness, compensatory time, or vacation. For a senior-level Deputy DA, vacation and compensatory time alone can add up to six weeks a year away from the office, or as much as ten weeks when vacation time has been carried over from a prior year. The Department does not have enough Deputy DAs to cover all the courtrooms without constant disruptive juggling of staff.

Matters concerning dozens of different cases may be dealt with during a single afternoon calendar session in any courtroom. The file for each case needs to be on hand for the prosecutor to refer to and to record what actions are taken. The files scheduled for action in each courtroom are taken from their filing cabinets upstairs and packed into a large rectangular plastic tub or “bucket” to be transported to the appropriate courtroom. The packing and unpacking of these buckets and re-filing of all the cases is a huge job for the clerical staff.

Lack of Leadership and Managerial Skill

Rather than remaining behind the scenes, focusing mainly on administrative duties as did his predecessor, the current DA performs the more prominent role of a trial prosecutor. For the most part he chooses what cases he will handle. He prefers to prosecute murder cases but, at the request of the Chief Charging Deputy he takes on other kinds of cases when scheduling difficulties demand it. The DA does not usually assist with charging, but he receives copies of the felony case evaluations and writes comments about how he wishes them to be handled.

The staff reports that the DA is pleasant and accessible. The DA frequently stops by their desks to ask how things are going. During its initial tour, the Grand Jury saw an office buried in mounds of file folders but humming with energy and purposeful activity. However, it appears to the Grand Jury from the testimony of various witnesses and from the examination of the office that the DA lacks the global perspective needed to keep the department operating efficiently. Although department staff members consistently speak of themselves as a team, the team is not effectively coached. Implicit in all evidence gathered by the Grand Jury – including interviews with the DA - is the unfortunate truth that the DA exhibits a limited understanding of how things are done in the department. As one staff member expressed it, “The DA does not fully understand the functionality of many of the things we do here.” Moreover, from witness testimony and our own examination of the office, the Grand Jury finds the DA fails to foresee the ways that a problem or even a subtle change in one part of the office can have
ramifications for other parts, for the department as a whole, and for its interactions with other agencies and the public.

Poor Communication Within the Department

The DA does not hold regular meetings with his office supervisors at which he could acquaint himself with problems as they arise and help provide a coordinated approach to finding solutions. Instead, each section of the office is – to some extent – unaware or misinformed about the workings of other sections.

Staff members report that when problems arise they usually devise solutions on their own. Problems are dealt with on an ad hoc basis, and staff does not receive or seem to expect direction from the DA, even on policy decisions.

Lacking guidance from the DA, staff members must depend on themselves. There is no procedure and policy manual to which staff can refer for guidance. DAs’ offices in other counties in California have manuals that could serve as a model for such a document.

Poor Communication With Law Enforcement

One area of difficulty faced by the office is in trying to meet the needs and expectations of agencies and individuals who interact with the DA’s office. Our investigation shows that among law enforcement and victims of crimes, there is frequently frustration with delays caused by backlogs at the logging desk. The problem is especially severe at the misdemeanor desk; some cases sit for as long as six months before moving on to be charged. Sheer volume causes delays in charging as well, even though the Deputy DAs who handle charging put in many unpaid overtime hours. Their Memorandum of Understanding does provide token payment in the form of 80 hours a year of compensatory time off in lieu of overtime
pay. For people who routinely work ten hours or more of overtime in each week, 80 hours is scant compensation.

Although the causes of delays are often understandable, it is important that law enforcement receive prompt feedback on cases that have been rejected so further action may be taken. Each week representatives of law enforcement agencies meet with the Chief Investigator and Clerical Supervisor. At this meeting, the agencies that attend are informed about felony reports that have been rejected – and why. Some of the law enforcement agencies fail to send representatives to this meeting and thus miss the feedback because the DA does not send a report to those not present.

Computer printouts are sporadically sent out to law enforcement agencies by the DA’s office. These printouts contain information on charges filed and how cases were resolved. For rejected cases, a code indicates in very general terms the reasons for rejection. Law enforcement agencies complain that they need information that is more detailed and sent out on a frequent and regular schedule. Deputy DAs and clerical workers report they are making efforts to improve the quality of feedback to law enforcement agencies. No one interviewed was sure of the schedule for sending out these printouts. The DA appeared unaware that such printouts are sent out. Detailed and frequent reports would be a valuable tool for everyone involved, so the DA could see the flow of complaints and law enforcement agencies could evaluate whether they were providing adequate information needed by the prosecutors.

The Grand Jury received complaints about documents and paperwork being lost by the DA’s office. Staff members admit that this happens. Law enforcement agencies are sometimes told to re-submit reports because originals have been misplaced.

Later, if the original documents surface and are processed, they cause added confusion.

Poor Communication With the Public

Members of the public often need to communicate with the DA’s office to get or give information about a case. The Grand Jury has received numerous complaints from victims of crime. When they call the DA’s office, they have difficulty getting through and often receive no response when they do leave a message. Some complainants allege multiple unanswered inquiries, both calls and letters. Both visitors and callers complain that receptionists in the DA’s office are often unsure where to direct their inquiries.

In part, this is due to the inexperience of new, inadequately trained workers. Supervisory staff report that they have only recently begun to develop new procedures to deal with changed circumstances in the office. The loss of prosecutors - especially in child abuse cases - and the resultant reduction in vertical prosecution has made it more difficult to put a victim in touch with a prosecutor who is completely familiar with the circumstances of the case. Adding to the confusion, the Victim Witness Assistance Division, which is also administered by the DA, suffered a major cut in staffing last year and was forced to cut back services. Victims of some kinds of crimes can no longer be referred to that program. The people of the state of California are the DA’s true clients and most often victims of crimes are the persons most affected by the DA’s actions or inaction. To ignore and neglect their needs is to victimize them again.

The Grand Jury has first-hand experience with these frustrations in its contacts with the DA’s office. The DA’s office accepts messages only between 9:00 a.m. and noon and 1:00 and 4:00 p.m. on weekdays. Unless the caller knows the direct number of the employee, the caller cannot leave a message. The DA’s own voice mailbox is often full and even has a message warning the caller of that possibility. When it is possible to leave a phone message, it frequently takes multiple calls to get a response. This is true of several other key people in the office as well as the DA. The Grand Jury often has not received timely
replies to requests for information. Support staff tells the Grand Jury that handling correspondence, checking voice mail, and responding to messages often have a low priority for the DA. Even the Board of Supervisors has problems getting information from the DA’s office. During recent public input on an agenda item on May 17, 2005, the Board of Supervisors complained that the DA had not given timely notice of the impending need to cut three of the four Victim Witness specialists who work directly with victims of crime. These proposed cuts are a result of a grant denial that was received by the DA’s office on September 29, 2004. The DA also failed to provide the Board of Supervisors with additional requested information about the Victim Witness grant problem in a timely fashion.

Staffing Difficulties

Between 1993 and 2003, the DA’s Criminal Division functioned without an Assistant DA (ADA). At the request of the new DA, the Board of Supervisors gave permission to hire an ADA in January 2003, but did not provide additional money to fund the position. Funding was obtained from several positions that were currently vacant and were subsequently eliminated.

On May 10, 2005, this original ADA was replaced by the former Chief Charging Deputy. Prior to this change, the administrative and managerial duties of the ADA were unclear. No one interviewed was able to explain what he did other than work on two high-visibility civil cases (The People of the State of California vs. The Pacific Lumber Company DR 030070 and The People of the State of California vs. Deborah G. August CV 040307). The then-ADA very rarely covered trials or preliminary hearings. It was only since July, 2004, that he began regularly to cover one of the court departments for afternoon sessions. The Grand Jury was unable to discover what duties the then-ADA performed to merit the approximately $8500 extra annual pay he received by virtue of his former job title. The former ADA remains with the Division as a Deputy DA at the lower salary commensurate with the job description.

The DA has eliminated eight positions since he took office in January of 2003. Three of the previous 13 Deputy DA positions were eliminated. Pay levels for Deputy DAs range from I (new, inexperienced prosecutors) to IV (long-term, experienced prosecutors), and each level is divided into steps A through E for years of service. Two of the eliminated positions had been held by highly experienced Level IV felony prosecutors. The office also lost three Investigator positions and the DA’s Executive Secretary.

However, the loss of positions is only a small part of the problem.

The office has endured a much more devastating loss that goes far beyond a mere reduction in the size of the staff. The number of positions lost is not nearly as critical as the quality of the people who vacated those jobs. The office is suffering the results of a disastrously high rate of turnover among experienced Deputy DAs. The resignations of several of the most skilled and experienced prosecutors, and the outright dismissal of another, has robbed the department of resources that realistically cannot be replaced.

When a position is vacant, it is extremely difficult to recruit experienced replacements with the expertise needed to handle felony prosecutions successfully. Humboldt County cannot offer salaries competitive with more urban areas. Even attorneys just beginning their careers have turned down employment here because of the low salary. It has been many years since Humboldt County DA’s office has been able to hire a Deputy DA with significant prosecutorial experience. Consequently the highly skilled, experienced people who have left the office have had to be replaced by inexperienced entry-level prosecutors.
Whatever the talents and potential of these new Deputy DAs, it will be years before they will equal what has been lost over the last two and a half years. The county will have to make a huge investment of time and training in these new people, and realistically, once they are more experienced, there is a high likelihood they will choose to relocate. The limitations of our location and county finances make a certain level of turnover inevitable. It is essential that we protect what is left of our pool of experienced prosecutors and do whatever is possible to enhance the County’s chances of attracting and retaining
comparably skilled replacements for those who have been lost.

In January 2003, nine (69%) of the department’s 13 Deputy DAs were Level IV longtime step D or E employees. Today, only five (45%) of the 11 Deputy DAs are Level IV-E. This serious erosion of toplevel know-how and experience among Deputy DAs has not happened by accident but rather is part of a seemingly intentional effort by the DA to replace expensive upper-level prosecutors with lower-cost attorneys. The department was faced with a 20 percent budget cut for fiscal year 2004-2005. Staff developed a budget that funded all of the then-currently filled positions, either by reducing hours or postponing scheduled salary increases. The DA rejected this plan and substituted a proposal calling for the elimination of three Deputy DA Level IV-E positions and replacing them with Level I-A/B and Level II-A/B Deputy DA positions. In other words, replacing experienced people who had demonstrated their loyalty with new, unknown quantities. New attorneys require training. It is all very well to speak of training - as the DA often does - but training costs money and time Humboldt County’s citizens can ill afford.

Setting aside the problem of finding these new prosecutors, this proposed reorganization had other serious flaws that demonstrate a limited understanding of department operations. In the late spring of 2004, grants funded the salaries for three-and-three-quarters attorneys. These grants were Anti-Drug Abuse, Child Abuse, Domestic Violence, and Marijuana Suppression. The granting agencies require compliance with many rules, including assignment of senior level attorneys.

Failure to assign senior level attorneys to these grants jeopardizes the funding. The DA’s plan to eliminate so many Level IV prosecutors would make it impossible to remain in compliance with the grant requirements.

Cutting longtime employees would help balance the District Attorney’s budget, but payouts for the accumulated benefits for the eliminated positions would have a significant negative impact on the county’s budget. The approximately $100,000 that would be required for payouts would come out of the General Fund and not the DA’s budget. Therefore, it was not really saving as much of the taxpayers’ money as claimed, helping the county cut costs, or balancing its budget.

The budget proposal that the DA finally took to the Board of Supervisors called for cutting two Deputy DA Level IV positions, leaving only 12 attorneys in the office. In his budget presentation before the Board of Supervisors, the DA warned, “The minimum short-term impact of such reductions will likely be a reduction in the filing [of] over 1000 criminal cases. The long-term impact cannot be calculated.” The Board of Supervisors responded by adjusting the DA’s budget upwards to save at least one of these positions. However, during this same time period in which the DA was warning that the county could not
afford to lose any prosecutors, on June 9, 2004, he fired a senior-level, highly competent, long-term prosecutor. Soon after, another senior-level long-term prosecutor who was known to have been seeking employment elsewhere resigned. Thus the goal of removing “expensive” prosecutors was achieved.

Moreover, the loss of the fired Deputy DA not only weakened the prosecutorial strength of the office as a whole, but dealt a crippling blow to the Child Abuse Services Team (CAST). Although the position had been paid for with special CAST funds, the Deputy DA had been available to cover a courtroom for calendars and to help out when trial schedule problems required it. As of May 24, 2005, this position has not been refilled despite special funding for the position being available.
Difficulties in Hiring Deputy DAs

Deputy DAs in Humboldt County hold their jobs “at will,” meaning the DA can fire them at any time for any reason or no reason. The DA has demonstrated his willingness to exercise this arbitrary power.

Although this arrangement may be workable and even advantageous in other parts of the state, it has serious drawbacks in a county such as Humboldt. When an experienced prosecutor is fired or leaves for any reason, it is very difficult to attract a quality replacement. Our limited financial resources make it impossible to compete with salaries offered by more urban counties.

It is true that Humboldt County offers prospective employees a quality of life not available in other parts of the state. However, our lovely rural and isolated location presents a great disadvantage to prosecutors who are fired, because they must relocate to continue their profession. The lack of job security makes applicants hesitate to consider employment here. A prosecutor who takes a job here must do so knowing he or she has no protection against arbitrary and unpredictable dismissal, and if fired has no other employment options in prosecution here. Low pay and no job security make Humboldt County an unattractive career choice for prosecutors. Wasting a valuable resource like trained, long-term employees is foolish. Humboldt County cannot afford the luxury of squandering prosecutorial experience and expertise with arbitrary firings, especially with no comparable replacements available to fill the void.

Many counties in California do not give their DAs this power. A survey of seven counties identified by the DA as being comparable to Humboldt showed that three provide all Deputy DAs with some kind of civil service job security and two provide job security to all but the top one or two Deputy DAs. In these five counties, prosecutors can be fired only for cause, not at the discretion of the top official.

Performance Evaluations

Performance evaluations are useful management tools. They inform employees of expectations and where they may be falling short. It is especially important for “at will” employees to have this kind of information in order to adjust to the philosophy and attitudes of the person who has control of their continued employment. No formal performance evaluations are given to senior level Deputy DAs.

As with the clerical support staff, the DA’s interaction with Deputy DAs is basically casual – stopping by individual offices to discuss particular cases or just to ask how things are going. There are no regularly attended meetings between the DA and his Deputies where the DA might make clear his policies and philosophy or perhaps allow for an exchange of views about proposed new plans before putting them into action.

Concerns About Plea Bargains

In the course of learning about the process of prosecuting criminal cases, the Grand Jury researched the plea bargaining process in order to understand how this tool fits in to the prosecutorial picture. Plea bargains are a necessary and important part of the judicial process, to move cases along and prevent system logjams.

The law gives the DA wide prosecutorial discretion, and how he uses that discretion to negotiate plea bargains is beyond the scope of the Grand Jury’s authority to investigate. However, it is clear that the public is intensely interested in this subject and has widespread misunderstanding of how and why plea bargains are negotiated. The public needs to be able to be assured that a plea bargain is not the result of the prosecutor being “soft on crime,” inexperienced, or too rushed to become thoroughly familiar with the case. Citizens want to be certain that violent felons who abuse or sexually molest children; batter their spouses; or use firearms to injure, kill, or terrorize other people are being prosecuted to the limit of the
law.

Section 1192.7 of the California Penal Code strictly limits plea bargains in serious, violent felony cases.

In subsection 1192.7 (a), the only permissible reasons for reducing charges against such defendants are “insufficient evidence to prove the People’s case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.”

Penal Code Section 1192.6 (a) states “In each felony case in which the charges contained in the original accusatory pleading
are amended or dismissed, the record shall contain a statement explaining the reason for the amendment or dismissal.” When the Grand Jury researched several cases known to have been plea-bargained, it was unable to find the reasons in the court minutes of the cases. Although the explanation of a plea bargain must be contained in the court record, and is not required to be in the court minutes, the Grand Jury finds that the public would benefit by having the reasons stated in the court minutes as they would be more accessible to the public. This information needs to be accessible to the public and the media to avoid cynicism about the criminal justice system.

Findings and Recommendations

Finding 1: The Grand Jury finds that the DA’s office is seriously understaffed.

Recommendation 1a: The Grand Jury recommends the DA recruit and hire additional experienced felony prosecutors.

Recommendation 1b: The Grand Jury recommends the Board of Supervisors authorize and fund additional experienced felony prosecutor positions.

Recommendation 1c: The Grand Jury recommends the DA request additional clerical support staff positions from the Board of Supervisors.

Recommendation 1d: The Grand Jury recommends the Board of Supervisors authorize the DA to hire additional clerical support staff.

Finding 2: The Grand Jury finds that the DA’s office does not provide timely or adequate feedback to law enforcement agencies on the status of their crime reports.

Recommendation 2a: The Grand Jury recommends the DA continue and expand regularly-scheduled meetings with law enforcement to inform them of cases rejected for lack of information and/or evidence.

Recommendation 2b: The Grand Jury recommends the DA’s office produce regularly-scheduled reports for law enforcement showing the disposition of each case. These reports must contain all relevant information regarding each case from inception to final resolution.

Recommendation 2c: The Grand Jury recommends that the DA’s office confer with law enforcement agencies to ensure the reports contain the information they need.

Finding 3: The Grand Jury finds that the DA’s office fails to respond to inquiries in a timely fashion, whether these are from victims, witnesses, defendants, or the Grand Jury.

Recommendation 3a: The Grand Jury recommends the DA’s office, in cooperation with the Victim Witness Office, develop a written policy stating who shall promptly respond to inquiries. Prompt response is especially important to victims of crime.

Recommendation 3b: The Grand Jury recommends the DA’s office immediately develop a small, quickreference office manual which includes how to handle correspondence and telephone calls so they will be dealt with in a timely manner. This would be especially useful for new hires.

Recommendation 3c: The Grand Jury recommends the DA personally provide a good example by responding to inquiries quickly.

Finding 4: The Grand Jury finds that the DA does not hold regular meetings with his supervisory staff.

Recommendation 4: The Grand Jury recommends the DA hold and attend regular meetings with his supervisory staff.

Finding 5: The Grand Jury finds that there is no procedure and policy manual for the office.

Recommendation 5: The Grand Jury recommends the DA develop a procedure and policy manual, to be completed by January 1, 2006.

Finding 6: The Grand Jury finds that the DA’s office accepts telephone messages only from 9:00 a.m. to noon and from 1:00 to 4:00 p.m. on weekdays. Unless a caller knows someone’s direct number, the caller cannot leave a message.

Recommendation 6: The Grand Jury recommends the DA install a voice mail system that allows callers to access the main office number and leave messages for anyone at anytime.

Finding 7: The Grand Jury finds that the DA does not provide performance evaluations for all “at will” employees.

Recommendation 7: The Grand Jury recommends the DA provide regular, written performance evaluations for all “at will” employees.

Finding 8: The Grand Jury finds that the DA has fired at least one experienced, highly-competent Deputy DA without having comparable replacements available.

Recommendation 8: The Grand Jury recommends the DA refrain from firing Deputy DAs – except for cause - unless comparable replacement prosecutors are identified and are willing to work in Humboldt County.

Finding 9: The Grand Jury finds that the “at will” employment status of Deputy DAs hinders the county in attracting quality, experienced prosecutors to work - or even to apply - in Humboldt County.

Recommendation 9a: The Grand Jury recommends that the DA develop and implement a system to provide job security for Deputy DAs protecting them from arbitrary firing. This should be done by January 1, 2006.

Recommendation 9b: The Grand Jury recommends that the Board of Supervisors be directly involved in working with the DA to develop and implement a system which provides job security for Deputy DAs.

Finding 10: The Grand Jury finds that the reasons for plea bargains in serious felonies as required by Penal Code Sections 1192.6 and 1192.7 are not documented in the court minutes.

Recommendation 10: The Grand Jury recommends that the DA require that when a serious felony case is plea-bargained, the Prosecutor shall request the Court to order that the reasons for the plea bargain be reflected in the court minutes of the case. This will make the information readily available to the public and the media.

Related:
Related:
TS - Grand Jury Findings and Recommendations
ER - 2004-05 Humboldt County Grand Jury Report 6/29/2005
TS - Grand jury issues scathing DA critique June 29, 2005
"However, the informed, well-organized, diligent leadership essential during difficult times is missing," the grand jury report said. "Operations are neither as efficient nor as effective as they must be."

McK Press - Grand Jury Report: D.A. guilty of 'weak leadership'
ER - 2004-05 Humboldt County grand jury releases its final report
NCJ - GRAND JURY REPORT IN


The Grand Jury Report on the DA's office
The Grand Jury Report on CAST
TS - Gallegos responds to grand jury findings
CAST Response/Grand Jury Report

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