10.28.2010

TS - A case of judgment; district attorneys wield tremendous discretion 10/26/10

A case of judgment; district attorneys wield tremendous discretion PART TWO OF THREE articles in the final week of the almost year long campaign.

The subject of plea agreements has come up in just about every debate, every forum and every interview either of the candidates has given in the race to become Humboldt County's next district attorney.

Challenger Allison Jackson has been consistent and vehement on the campaign trail in her criticism that two-term incumbent District Attorney Paul Gallegos has overseen a “revolving door” of plea bargains, repeatedly letting criminals off easy and making Humboldt County less safe. In countering, Gallegos has repeatedly said plea agreements hold offenders accountable, save taxpayers money and are fairly and equitably applied in Humboldt County.

David Levine, a professor at University of California Hastings School of Law, said the first attribute he looks for in a district attorney candidate is good judgment because a county's top prosecutor wields a huge amount of discretion. That discretion, according to Levine, can be seen in a many decisions, including whether to seek the death penalty in a case, whether to try a juvenile as an adult, how cases are charged and how they are ultimately resolved, including through plea agreements and dismissals.

Because statistics tracking plea agreements are not kept, specifics in the debate are hard to come by. However, most experts estimate that 90 to 95 percent of California criminal cases end with a guilty plea or some type of negotiated disposition, numbers that Gallegos said he believes apply to Humboldt County as well. Experts contacted by the Times-Standard said plea agreements are not just common but absolutely pervasive in the state of California and absolutely necessary in a state with lots of criminals and very limited resources to prosecute and imprison them.

”You can't run the criminal justice system without plea bargaining,” said Levine. “We just don't have the resources for every case to go to trial.”

Those wondering whether plea agreements are necessary need only talk to California's judges, prosecutors and defense attorneys, said UC Berkeley's Boalt School of Law professor Malcolm Feeley.

”They'll tell you that plea bargaining is the grease that oils the wheels of justice because it's the way cases can be handled rapidly,” Feeley said in a previous interview with the Times-Standard.

For her part, Jackson doesn't dispute any of that. However, she said Gallegos has routinely entered into “mind-boggling” plea bargains that simply didn't accomplish justice and has repeatedly dismissed cases that should have proceeded. Though she has repeatedly said her criticism isn't about a single case but about a pattern of behavior, she has repeatedly pointed to specific cases on the campaign trail to underscore her point.

Most recently, in an interview with the Times-Standard, Jackson blasted Gallegos for his office's handling of a case involving the alleged rape of a Humboldt State University student at an off-campus party. Charges were filed in the case, and the defendant was extradited from Kentucky to Humboldt County, where he was eventually held to stand trial.

However, the District Attorney's Office dismissed the charges in the case July 22. Responding to a critical letter to the editor published in the Lumberjack, Deputy District Attorney Kelly Neel defended her office's handling of the case in a rebuttal letter.

In the letter, Neel said she worked hard on the case but “in the end, the young woman, on no uncertain terms, made it clear that she would not cooperate or participate in the prosecution. This was after the case was charged; the suspect in question was extradited and housed in the jail for several weeks. Without her testimony, the People could not proceed and therefore the charges were dismissed.”

In an e-mail to the Times-Standard, Jackson said the letter equated to blaming the victim, who wrote the California and U.S attorney generals on July 28 seeking a review of the case. Whether the victim had a change of heart or was always prepared to move forward with the case is not made clear by anything in the public case file.

California Attorney General Press Secretary Christine Gasparac said the matter is currently under an “abuse of discretion” review with her office. Gasparac described the review as a “fresh set of eyes” on a case and said it is done with no assumption of wrongdoing. At the culmination of the review, Gasparac said, attorneys from her office will have three options: find the dismissal was justified given the facts of the case, return the case to Gallegos for reconsideration with some suggestions or take over the case to prosecute it themselves.

Gasparac said her office expects to make a determination on the case this week.

Throughout the campaign, Jackson and others have pointed to other cases that culminated in dismissals or plea agreements. In a letter submitted to a number of local newspapers recently, Jackson decried the handling of Michael Coen, who found himself as a defendant in a number of criminal cases in recent years, some for violent crimes, before being arrested for attempted murder several months ago. Jackson charges that Gallegos' office treated many of Coen's run-ins with the law as parole violations rather than filing new charges and simply did not file charges on another of Coen's arrests. If it had done otherwise, Coen may not have been on the streets to allegedly have committed the attempted murder, Jackson said.

”That man is responsible for a lot of numbers,” Jackson said.

For his part, Gallegos disputes that his office has mishandled the cases, saying that officers arrest suspects based on probable cause but that he must prove cases in court beyond a reasonable doubt. He also said he doesn't get to make decisions based on what might happen in the future.

”We don't get to punish people for something they may do in the future,” he said. “We don't even get to punish people for all the things they did in the past. We can only punish people for what we can prove they did in the past.”

That same quote could be used to rebut some of Gallegos' supporters, who have raised the case of Yohan Lopez as a criticism of Jackson.

According to court documents, Lopez was arrested by the Eureka Police Department in September 1997 and charged with felony battery of a police officer, resisting an officer and marijuana possession. Jackson, who served as a deputy district attorney from 1994 to 2004, prosecuted the case and entered into a plea agreement under which the charge of battery on a police officer was dismissed and Lopez -- who had a prior firearms conviction -- pleaded guilty to misdemeanor obstruction of an officer and marijuana possession. Lopez was ordered to pay a fine, serve eight days in jail and write a letter of apology to the officers involved.

Within months of the disposition, Lopez and two accomplices murdered an 18-year-old in Eureka, a crime for which Lopez is now serving a life sentence without the possibility of parole.

What the public court documents don't say is that the officer Lopez was alleged to have battered, EPD Detective Ron Harpham, is adamant that no such battery occurred. While Harpham recalled some of the officers in the incident sustained minor injuries, like a pulled muscle and a scuffed knee, he said Lopez only resisted by trying to flee and never battered any of the officers involved. He said he had no problem with felony battery count being dismissed and said he didn't know why it was charged in the first place.

Though Gallegos has faced criticism for plea agreements in a number of cases, he was adamant that his office has handled each case fairly, weighing legal issues, factual issues and equitable issues.

”My job is to make unpopular decisions,” he said. “It's mob mentality versus the rule of law.”
Gallegos also said that he simply cannot offer the public an unbridled view of his reasoning in every case. In some cases, Gallegos said, there are issues with the credibility or willingness of a witness, the conduct or participation of a victim, flaws with the law enforcement's investigation or other things that he simply won't talk about publicly.

Not knowing anything about the specifics in Humboldt County, Levine said that's the best approach for a district attorney to take, even if it opens them up to public scrutiny.

”That's a district attorney doing the ethical thing,” Levine said. “You just can't reveal that kind of detailed information about a case.”

When a case goes through a trial, all the case evidence is aired in public. However, when a case ends with a negotiated disposition, most of the case details never make it into the public's view, Levine said.

”It's tough, there's so many nuances that go into a plea bargain, and the only thing the public is going to see is what a person was arrested for, what was charged and, ultimately, what they pled to,” he said. “It's very difficult (for the public) to assess good plea bargains.”

One thing that should assuage general concerns, Levine said, is that prosecutors and defense attorneys don't make plea agreements in a vacuum.

”They cannot make a deal themselves,” Levine said. “The most they can do is make a recommendation to a trial judge. The trial judge has to be convinced this is a reasonable plea agreement. There are examples where judges refuse to accept plea agreements because they think prosecutors have been too lenient. ... When someone challenges a district attorney's deal, you have to remember a judge found that it was a fair deal.”

One doesn't need to look too far from Humboldt County to find an example of a judge interceding in a plea deal.

In Trinity County in March 2008, Cody Angus Baker entered into a plea agreement that would have seen him sentenced to a 10-year, eight-month prison term for the 2007 DUI crash that killed four of his passengers. However, a Trinity County judge threw out the deal, saying it was too lenient. Baker ended up being acquitted of the most serious charges he faced and being sentenced to serve nine years, eight months in prison -- three years of which were later shaved off the sentence after a successful appeal.

Gallegos said the Baker case also underscores the point that there are simply no guarantees at trial.

Levine said whether it's a plea agreement, a dismissal or a charging decision, there is no one-size-fits-all approach to prosecutions.

”There's all sorts of different variables,” Levine said. “You just can't do this like it's coming off a factory assembly line. There's tremendous judgment that goes into these things.”
Editor's note: This is the second of three stories taking a closer look at the race to become Humboldt County's top law enforcement official. Part three, which will run Thursday, will focus on the subjects of honesty and support.

Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com.