Injustices in San Diego: Let The Justice Department Take Over the County Jail (& More)
The Fox Guarding the Henhouse, Our 'Smart' County District Attorney, & A Win for Homeless Humans
What started as a comment on Twitter in response to yet another report about death rates at San Diego County jails has turned into what I hope is a serious topic of discussion.
Union-Tribune columnist Charles T. Clark heard about the idea from a reader; namely that it’s high time for the federal government to intervene in the administration of our local jails.
Report after report after report has documented the problem. Other than vapid complaints about methodology and outright denial accompanied by obviously unfulfilled promises that things would be better in the future, nothing has happened.
A change in leadership at the County Sheriff’s Office–even if it is interim– hasn’t stopped the problem. And the Country is paying increasing large damages from lawsuits filed by the families of those who perished, the vast majority of whom hadn’t even had their day in court.
From Clark’s column:
Federal intervention as it relates to jails can take various forms, ranging from providing oversight to mandating forceful change.
The Oklahoma County jail in Oklahoma City has been under federal supervision since 2009. That supervision seems to consist almost exclusively of occasionally inspecting the jail and never rose to the point of the Justice Department requesting a judge appoint an independent receiver to take over administration of the facility.
In Mississippi, Hinds County entered into a consent decree with the U.S. Department of Justice in 2017 over the region’s Raymond Detention Center and Hinds County’s jail. In that case the government is taking a more forceful approach after county leaders resisted changes and spent significant time in court fighting the Justice Department. That led to a federal judge holding the county in civil contempt on two occasions and issuing a series of injunctions.
The most recent injunction, rendered Wednesday, requires the county ensure the jail is overseen by a qualified jail administrator and a leadership team with substantial education, training and experience in managing a large jail. It also requires the county implement training related to excessive force, de-escalation, sexual misconduct and methods for dealing with prisoners with mental illness.
In the Bay Area, just two months ago, a federal judge approved an agreement that placed Alameda County’s Santa Rita Jail under court supervision, with a San Francisco law firm and team of experts tasked with monitoring a reform program to improve mental health care. That decision came as the result of a class-action lawsuit filed on behalf of inmates in 2018, drawing attention to the ways people with mental disabilities were mistreated at the jail.
Bringing in the feds is no sure thing; the Justice Department’s record with these sorts of interventions is a mixed bag. Their oversight of the San Diego Police Department after a series of sexual assault scandals was essentially limited to whatever the department voluntarily wanted to give hem
None-the-less, since it seems as though everybody else has punted on what should be a pressing need to get involved, getting another set of eyes on the problems can’t hurt.
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While we’re at it, though, let’s not forget about some of the rot permeating the rest of the local justice infrastructure.
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The foxes guarding the henhouse have agreed to investigate foxes at other henhouses who succumb to the urge to do bad things.
I don’t have a lot of confidence in the recent announcement that investigations of deadly use of force or shootings involving an officer will be handled by another county law enforcement agency.
To wit: The San Diego Sheriff’s Department will investigate incidents involving the San Diego Police Department, and the SDPD will handle incidents involving the sheriff's department and other local agencies.
Given that both agencies have a demonstrated problem with racial bias and most use of force incidents involve people of color, I don’t know how anybody outside the law enforcement community will ever be satisfied with such an arrangement.
And then there is the issue of interdependence with various agencies. Officers with one agency may be less willing to cooperate or extend courtesies toward another that just issued a report negatively impacting an officer.
It’s no secret that at the prosecution level, DAs are reluctant to charge cops who are less than truthful on the witness stand (if you or I did this we’d likely be charged with perjury) because they are dependent on police for investigative matters.
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Now let's go back to the Union-Tribune, where columnist Michael Smolens tips his analytical hat to County District Attorney Summer Stephan’s abilities in light of the fact that she’s running unopposed for reelection this year.
The headline is: DA’s ‘smart reforms’ have proven to be smart politics.
Stephan, we learn, has taken actions that have mollified “both sides,” like how she ended the local use of civil gang injunctions only to turn around to testify in Sacramento against a bill largely eliminating the ability of prosecutors to file gang-enhancement charges.
That’s all fine and dandy–and I’ll admit she’s made some positive changes– until you look at the larger picture. She’s done the prosecutorial equivalent of rearranging the deckchairs on the Titanic along with dusting the mantel; as long as she knows her place, she’s in.
(It’s the totality of the criminal justice system that requires change. A little tinkering here and there isn’t going to make that much of a difference.)
Something like 70% of DA’s run unopposed in elections. It’s common for incumbent DA’s who decide to retire to resign and have an outsized hand in picking their successor who then runs as an incumbent. That’s exactly what happened in San Diego four years ago when Bonnie Dumanis hung up her spurs.
Largely because Summer Stephan was new to the office four years ago, former Public Defender Geneviéve Jones-Wright ran against her on a platform advocating progressive changes.
She didn’t stand a chance, as various law enforcement related unions and other entities went all-in to defeat her. An independent expenditure committee bombarded local media with ads claiming Jones-Wright was an anti law enforcement infiltrator for George Soros, complete with not so subtle references to an international Jewish conspiracy.
Even politicians who, based on their known ideological stances, should have backed Jones-Wright stayed away. Why? Because no politician wants to face the wrath of our so-called public servants come election time.
None-the-less, columnist Smolens gives a nod to speculation that Jones-Wright or another criminal justice advocate might have wanted to run against Stephan.
Taking a look at what’s happened with change-oriented prosecutors in San Francisco and Los Angeles, why the hell would any sane person take that chance?
Internal sabotage by career prosecutors and often ill-informed charges of being “soft on crime” have led to recall movements against Chesa Boudin in San Francisco and George Gascón in Los Angeles.
While there have been efforts to paint these recalls as grass roots movements, the fact is that big ticket donors (SF) (LA) are underwriting the expenses of PACs at the forefront of these efforts. These recall supporters don’t necessarily break down along ideological lines, it’s more like a class warfare issue.
Defending class interests doesn’t always mean rich people are doing the dirty work, plus the truism that politics makes strange bedfellows.
Via Smolens:
…Stephan’s current association with political strategist Dan Rottenstreich likely sent a signal, intentional or not. Rottenstreich is the go-to consultant among Democrats and has long worked with organized labor. His wife, Bridgette Browning, last year became the leader of the San Diego & Imperial Counties Labor Council.
That’s not to say the council would have backed Stephan. But since her first run — when she hired a go-to Republican consultant — Stephan had backing from some high-profile Democrats and unions, and not just those representing police and sheriff’s deputies.
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Finally, I would be remiss not to mention the San Diego City Attorney’s recent loss at the appellate court level in a case involving the rights of homeless humans.
Talk about being rotten to the core… you have to wonder how some of these people can look at themselves in the mirror in the morning.
The bottom line here is that the City Attorney couldn’t be bothered to get involved with hearings for “infractions,” the primary method used by the SDPD for keeping the unhoused from living on the streets. It was an inconvenience.
Attorney Colleen Cusack is the attorney who did the right thing.
Transcript of her Twitter thread below, cut and pasted for ease of reading. My commentary is in italics:
1.Short background: My client, a person experiencing homelessness, admitted to covering himself with cardboard in the rain in Balboa Park. For that he was charged with overnight camping, which carries a $280 fine. I agreed to defend him Pro Bono to challenge the law.
2.In 2019, I sent an informal discovery request (IDR) to the prosecutor - the San Diego City Attorney pursuant to Penal Code 1054.1. They replied telling me since they don't appear at the trial, they had nothing for me and I should ask the accusing witness / officer…
So the SDPD was being made to be responsible for prosecution. I thought that only happened in countries where defendants were presumed guilty. The people getting infractions are also denied access to representation via a public defender.
3.…This represented an aberration. I've been representing people in infraction court since 1992 and even though prosecutors have rarely appeared in those matters over the years, they still facilitated my discovery request.
4. Under Mara Elliott's leadership they simply just decided to stop doing their job as they were obligated to do under the charter and Constitution. Instead, they sought to delegate their duty to the police instead.
5. Jonathan Lapin, Assistant City Attorney in charge of the Appellate division testified in this matter that in November, 2017, 11 months after Mara Elliott began, he and his office informed the police that the City Attorney would no longer provide discovery in infractions.
This change in policy followed the dismissal of Assistant City Attorney Marlea Dell’Anno, who was in the news recently:
A jury on Wednesday awarded former San Diego Assistant City Attorney Marlea Dell’Anno $3.9 million in her wrongful-termination lawsuit against the city and former City Attorney Jan Goldsmith.
The individual who replaced Ms. Dell’Anno as Assistant City Attorney was John Hemmerling, who just happens to be running for County Sheriff this year. Maybe somebody should ask him if this policy was his idea, or if he objected.
6. The police were given zero training in how to provide discovery and zero supervision by the City Attorney's office. There was zero publication of this radical departure to the court and defense bar. They just stopped doing their job and told the police to do it instead.
7. The City Attorney claimed that infractions were too minor and too voluminous for them to have to facilitate discovery. The Appellate Division soundly rejected this argument:
8. After City Attorney refused to facilitate discovery in this instance I sought to discovery direct from the police. I issued Subpoena Duces Tecums for the documents, which proved inadequate for this purpose. I then got a court order compelling SDPD to produce 7 items.
9. SDPD through their Sgt. who serves as Court Liaison partially complied with two of the items ordered produced and as to the remainder directed me to ask the City Attorney for the documents instead. Full circle. Fun fact: this Sgts desk is inside City Attorneys office.
10. So I went back to court and sought further order compelling the requested documents. The court ruled further order was futile given the non-compliance with prior orders and instead dismissed the case. The city appealed.
11. Sit on that for a minute. The City appealed a $290 ticket dismissed against a homeless man with no money after they failed to provide discovery. The city was trying to force me forward to trial without the discovery to which I was entitled. We call that "Trial by Ambush.”
12. The prosecutor's duty as a Minister of Justice is not to "win at all costs," but to assure that justice is obtained. There can be no justice in a "Trial by Ambush." The city should have zero interest in obtaining a conviction by suppressing relevant evidence. But I digress.
13. On Appeal, the court had to find there was a constitutional violation justifying the trial court's dismissal. Enter Brady v. Maryland (1963) 373 U.S. 83. This case by US Supreme Court obligates the prosecutor to provide in discovery all evidence favorable to the defendant.
14. The court held that the City Attorney failed in its affirmative obligation under Brady v. Maryland and thus, dismissal of the case was warranted. Court stated the duty under Brady could not be delegated to the police. Here are the particulars:
15. The prosecutors Brady obligations are affirmative ones. That means these obligations exist regardless of whether the defendant in an infraction makes a request. This means in all pending infractions right now, the City is also in violation of Brady for failure to disclose.
16. Going forward, the City is EITHER obligated to review all body worn camera evidence to determine it does not contain Brady evidence or, if it doesn't have the time for that, it can simply provide that body worn camera evidence to every litigant to comply with its obligations.
17. This may not be the end of the road for my client as the City may delay its constitutional obligations under Brady by appealing the matter up to the Fourth Dist. Court of Appeal. But the prosecutor is on notice that EVERY INFRACTION now pending can be dismissed due to Brady.
18. Because the District Attorney is doing and getting away with the same non-compliance in infractions it prosecutes in North, East & South county, this ruling also puts them on notice that they are violating the Constitution by failing to provide litigants with Brady evidence.
Note to readers: Remember, DA Summer Stephan has no opponent in this year’s election.
19. If you are a defendant or representing a defendant in an infraction in San Diego County, it would behoove you to make a request for this discovery and if it is denied bring a motion to dismiss. Feel free to contact me by DM, share your email and I'll provide you boilerplates. 2
Note: The Twitter DM handle is: @objkshn
20. Happy, happy, happy day. Getting to this opinion consumed over 100 hours of my uncompensated time, but in that it will end the 4+ years of trial by ambush and herald in a new era of procedural fairness makes all of that time well spent. I'm going to go celebrate now.
Part One
Email me at WritetoDougPorter@Gmail.com