Larry Stirling tackles another hot issue today, one that is a perennial flash point among local govenment types. Right now Jan Goldsmith’s office prosecutes misdemeanor offenses committed within the San Diego city limits. Should that responsibility be shifted to the District Attorney? Here is retired Superior Court Judge Larry Stirling’s view. We are seeking input from the City Attorney’s office and will publish their comments when received.
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“Efficiency” means doing more for less. “Effectiveness” measures what percent of the overall job is being accomplished irrespective of efficiency. The two are not interdependent and both need to be considered when adopting operational policies.
As both former Sheriff Kolendar and District Attorney Bonnie Dumanis recommended, the State Penal Code prosecutorial function of the city attorney should be turned over to the District Attorney in the City of San Diego exactly as it is done throughout the rest of the county and, with only one or two exceptions, as is done throughout the rest of the state. Doing so would maximize prosecution resources and reduce burdens on the criminal justice system.
Here is why:
The only reason that the city prosecutes crimes instead of the DA is historic. City prosecution is a left-over artifact of days gone by. The city of San Diego existed before the County of San Diego.
When the County finally got established and took over county-wide prosecution, the city attorney was permitted to keep misdemeanor prosecution as a sop. That sop is an incredibly wasteful gesture and should have long ago been done away with.
As a local municipal and superior court judge for around 14 years, I had an opportunity to view (endure is more the word) firsthand the multiple ways that bifurcated prosecution wastes the time and energy of the city, the courts, the jailers, the sheriff, the probation office, and the public defenders.
Deciding who to prosecute and more importantly, who NOT to prosecute is a critically difficult job for the assigned deputies of any prosecutorial office. There is way more crime brought to the attention of the government than it can ever address.
Thus allocating available resources to reports of crime becomes a critical management decision directly impacting the public safety. In a typical case, a defendant will be charged with, or is subsequently arrested with, “pending” cases that are both felony and misdemeanors.
In the rest of the county, that defendant is appointed one public defender and all of his pending cases along with the new case are “pulled” and assigned to one prosecutor and one probation office, and one unified court system for action. That prosecutor makes a decision of what the “package” of crimes is worth in their office’s judgment, the job the DA is elected to do and the deputy prosecutor hired to carry out on her behalf.
The one defense lawyer reviews the one “offer” on the “package” and either agrees, haggles, or takes the pending case to trial.
Or the prosecutor and defender (and defendant of course) agree to the package, and one judge takes the plea agreement and “wraps” all pending cases, misdemeanor and felonies into that plea agreement.
Done. All entirely rational, reasonable, efficient and effective. But this is not true in the city of San Diego.
If a person is arrested on a crime and has other cases pending, in San Diego, he has to be appointed BOTH a prosecuting deputy district attorney and a prosecuting city attorney. He has to assigned both a misdemeanor defender and felony defender. Then the defendant is then placed on two separate due-process tracks, one in felony courts with appearance dates and another misdemeanor courts with other appearance dates.
Dumb.
The assigned DDA is not permitted to wrap the misdemeanor cases in her considerations of the felony plea bargain and the misdemeanor prosecutor is not allowed to bargain the felonies for increased
sentences on the misdemeanor track.
The felony proceedings take precedence over the misdemeanor proceedings. But for the defendant to receive misdemeanor due-
process rights, he still must appear timely in misdemeanor courts to be arraigned or summarily revoked on pending cases and given
a chance to demand a hearing.; He must “waive time” on his misdemeanor due-process rights so as to learn the outcome of the felony disposition. If the defendant does not waive time on his misdemeanor cases, then he has to be tried timely on those cases or the CA has to drop charges.
Those same constitutional requirements require time action on the pending felonies as well.
You can readily see that bifurcated prosecution creates a blizzard of contending obligations by two separate bureaucracies while putting the sheriff, public defenders and the probation departments each in a bind.
Typically the defendant is arraigned on his felonies and taken back to jail. Then he is re-transported (or with his permission appears via television) to be arraigned a second time but by a different judge, court, prosecutor, and defender to be arraigned again on the pending misdemeanors.
Thanks to the wisdom and cooperation of our veteran criminal class, most the time the defendants “waive time” on the pending misdemeanors and leave the municipal system until the felonies are “resolved.”
Then the defendant is returned to the misdemeanor system to “dispose” of his misdemeanor cases. This is all a waste of everyone’s time as ALWAYS the punishment for the pending misdemeanors runs concurrent with the felonies and are satisfied by “credit for time served” on the felonies. Endless forests of trees have been felled to record this eyewash.
It is true that not all cases involve defendants with cases pending in both the misdemeanor and the felony courts. In those cases, the city attorney argues that the city has special needs and having a specialized corps of prosecutors that can be wielded to meet the city needs is a good thing.
The argument sounds good but is not accurate. In reality, the DA is having trim her sails on prosecution while the CA lavishes resources on cases that in any other jurisdiction would be deemed minor and disposed of short of trial. Worse, having the CA determine the value of misdemeanor cases in the city and the DA do so in the rest of the county can and does result in vast differences in standards of prosecution.
What would result in a reasonable plea bargain in the rest of the county would result in a trial in San Diego City. For example, when Casey Gwinn was prosecutor, he was notorious for taking even the weakest domestic violence cases to trial, as many suspected to boost his reputation and burnish his record to run for District Attorney. This policy resulted in a major distortion of resources and injustice to thousands of people who fell within his clutches whose minor confrontations would have been dealt with otherwise by a more rational approach.
The juries agree. Mr. Gwinn’s conviction rate for these cases were record lows but he got to burnish his credentials at the unjust expense of thousands of others.
Under Mr. Goldsmith, that is not happening. However, the very presence of a bureaucracy dedicated to just misdemeanors distorts the allocation of available social resources to fight crime.
Money spent on deputy city attorneys would be better used in the world of felony prosecution.
Every nickel wasted on the “double appearance” process in San Diego is an absolutely unconscionable waste of court, sheriff, probation, city attorney and public defender time and money.
This could all be resolved by the city council agreeing with the District Attorney to have her do all state law criminal prosecution in the city of San Diego.
The county could recover their costs in that regard by the city and county agreeing to reallocate fines collected in the city of San Diego for such prosecution to the county in exchange for taking over those duties.
All it takes to right this historic wrong is five votes of the city council and a mayoral signature.
Comments 1
Merger of the criminal functions is not practicable. The DA’s office doesn’t have the ability to handle the 40,000 criminal cases that we now handle annually.
The inefficiency arose out of two offices working separately without coordination. With better coordination, it would be fine. Even the DA’s office has misdemeanor and felony divisions in matters outside of the City of San Diego, but the DA’s office misdemeanor and felony divisions coordinate case management.
Bonnie Dumanis and I discussed this issue before I took office. In fact, during the 2008 election campaign we announced publicly a plan to better coordinate the offices.
Guess what? We did what we said we would do. Here’s what we did:
1. One of Bonnies’ top deputies, David Greenberg, joined our office in December, 2008, on loan for one year to lead our Criminal Division and conform it’s policies and practices with the DA’s office.
He returned to the DA’s office in December, 2009, having done an extraordinary job.
2. Under David’s leadership, issuing guidelines and training were conformed with the DA’s office (that is a big deal). A strong working relationship was established. The relationship is ingrained in the office culture in a number of ways:
A. We now share the identical computer case management system. Our Criminal Division is hooked by computer to the DA’s office;
B. We have cross-deputized deputies;
C. DA’s are authorized to wrap misdemeanors in felony pleas;
D. We make court appearances for each other;
E. Our deputies handle some felony probation revocations;
F. We participate in each other’s training programs;
G. Our attorneys communicate on a regular basis, something that was not done before.
You might want to read a short article I wrote about this a year ago for our newsletter:
http://www.sandiego.gov/cityattorney/pdf/09fallbrief.pdf
Accordingly, much of what Larry Stirling writes is obsolete. He should have written it before December 2008 during Mr. Aguirre’s term when the offices did not coordinate.