Public Defender Files Motion Charging DA With Vindictive Prosecution



Deputy Public Defender Dan Hutchinson has filed a motion in Yolo County Court asking for a dismissal of additional charges against Jesus Arias on grounds that Deputy DA Ryan Couzens was engaged in malicious prosecution for attempting to leverage pruno (prison wine) possession charges into prison time.

Writes Deputy PD Hutchinson, “The overwhelming objective evidence proves that the Yolo County District Attorney’s prosecution of defendant in the above action is a vindictive prosecution motivated by a desire to punish defendant for exercising his constitutional right to a jury trial…”

He continues, “The most compelling evidence of the district attorney’s vindictive motive in prosecuting defendant is the fact that no other inmate in recent memory has been prosecuted for the possession of pruno in the Yolo County Jail.”

The motion attached declarations from 14 attorneys in the Public Defenders Office, each of them attesting to the fact that they had never had a client charged with possession of pruno.  Public Defender Tracie Olson, who was not among those filing affidavits, had previously told the Vanguard that she had never before heard of pruno prosecution in this county.  “I can’t recall a single case.”

No one, not anyone in the Yolo County Public Defender’s Office, or the five private attorneys who are members of the conflict panel, argued Mr. Hutchinson, “can recall a single case, other than that of defendant, in which a defendant was criminally prosecuted by the Yolo County District Attorney for possession of pruno in the Yolo County Jail.”

It is not that possesion of pruno is rare.

“Although it is not uncommon for jail staff to find inmates in possession of pruno or to have consumed pruno, these incidents are generally handled administratively,” Mr. Hutchinson argues.  “Indeed, other inmates who were found to be in the possession and/or under the influence of pruno during the same time period as defendant, and even on the very same day, were not prosecuted.”

He concludes, “There is simply no reasonable explanation, other than a desire to punish defendant for going to trial, as to why the Yolo County District Attorney, having not prosecuted any inmate for possession of pruno in  recent memory, would suddenly choose to prosecute defendant, and only defendant, for such a crime.”

The case was set for a prehearing conference on the new charge, however, they will delay that hearing until October 15 as Mr. Couzens will have until October 8 to respond to Mr. Hutchinson’s motion.

On August 17 the Vanguard reported that 18-year-old Jesus Arias had been found guilty of a violation of probation, possession of a stolen weapon and a gang enhancement stemming from an incident in which the gang task force visited his home the day after his 18th birthday and found a rifle in his mother’s closet.

It was following the guilty verdict that what seemed a small and routine case turned strange, due almost entirely to decisions made by the prosecutor on this case.

As we reported on September 13 , Mr. Arias was found in possession of pruno – which is a form of “prison wine” or a homemade alcohol.  Several individuals in the jail where Mr. Arias is being held waiting for sentencing were found in possession of pruno, yet only Mr. Arias has been charged with the crime.

At the September 10 sentencing hearing, DDA Couzens for the first time took the position that Mr. Arias should be sentenced to prison, despite the fact that the probation report recommended the court suspend imposition of sentence and place defendant on probation for three years.

DDA Ryan Couzens stood and stated that the defense motion’s claim that the two cases are connected is “just not true.” However, out of the other side of his mouth he acknowledged that the two cases were connected.

According to court transcripts quoted in the motion, Mr. Couzens stated, “Well, there’s, sort of, some griping about the new case, and then paragraph seven is, sort of, the basis for the motion to continue, which is ‘the new case could impact sentencing in the above action.’ That’s just not true …. We’re just awaiting sentencing on that case.”

“I can tell the court and counsel right now that, the new case, we’re willing to offer to just dismiss it with a Harvey waiver if he is willing to go to prison on the existing case, and it can be for, basically, the lowest calculable term, whatever the low-I’m not sure how, exactly, we would work out-working the time together with his custody credits or whatever. But that’s an offer we’re willing to make. But it’s just not legally correct that the new case affects the sentencing in the previous one.”

According to the motion, DDA Couzens had offered two separate probation offers to the defendant, the latest occurring just before the trial began.

Writes Mr. Hutchinson, “At the sentencing hearing, however, Mr. Couzens stated that the People were requesting that defendant be sentenced to prison, and would dismiss Case No. 10-4177 only if defendant were, in fact, sentenced to prison.”

“After Judge Rosenberg advised Mr. Couzens that he was inclined to give defendant a chance on probation, Mr. Couzens requested and was granted leave to file an amended complaint,” Mr. Hutchinson continued.  “The amended complaint, which Mr. Couzens had signed the previous day, alleged a prior strike, based on the guilty verdict in Case No. 10-1587, which made defendant statutorily ineligible for probation.”

“There can be no dispute, however, that Yolo County Jail staff finds inmates in possession of pruno on a fairly regular basis,” Mr. Hutchinson continued in arguing that it was the sentencing hearing rather than the commission of the offense that led to the prosecution. “The only thing that distinguishes defendant from these other inmates is the fact that only the defendant had exercised his right to a jury trial and was pending sentence.”

Furthermore Mr. Hutchinson pointed out, “Although it is not uncommon, for a district attorney to make a pre-trial probation offer and then argue for the court to impose a prison sentence after a defendant is convicted at trial, that is not what happened in this case.”

Mr. Hutchinson in his motion continues, “Mr. Couzens did not simply argue for the court to impose a prison sentence based on the circumstances of the case. Rather, his office filed a crime that it had never prosecuted in recent memory, if ever, in order to prevent the court from granting defendant probation.”

He bolsters that argument by citing a discussion in which they approached the bench immediately after the jury had rendered its verdict and was discharged.  Mr. Hutchinson writes, “Judge Rosenberg asked both Mr. Couzens and I to approach the bench. Judge Rosenberg asked: “‘You both agree this is a probation case?'” I responded “‘Yes.'” Mr. Couzens stated: “‘Well, I think the court can consider his entire record.'”

At the September 10 hearing, Judge Rosenberg asked Mr. Couzens and Mr. Hutchinson to approach the bench.

According to Mr. Hutchinson, “During the conversation, Judge Rosenberg asked Mr. Couzens if not for the new case, would he still be opposed to the Probation Department’s recommendation. Mr. Couzens responded ”’yes”’-it was now his position that defendant be sentenced to prison. Upon further inquiry by Judge Rosenberg, Mr. Couzens made it clear that he would not accept any resolution that did not involve defendant being sentenced to prison.”

This is an interesting revelation by itself because 186.22(a) is the stand-alone gang charge.  You have a case involving a violation of probation and possession of a stolen weapon.  But what do they want to stick?  The gang charges.

This is very similar now to the Memorial Park incident, in which several of the co-defendants were offered “no prison time” in exchange for acknowledgments that they were gang members.  This is more evidence that a priority in the DA’s office is to get gang acknowledgments.  Are they doing this to help secure addition gang grant money?

A matter of concern is that during the trial, Mr. Couzens really made the case along with Detective Bautista from the gang task force, that Mr. Arias was a dangerous individual that they had to put away for the protection of the community.  And yet a few weeks earlier he was offering no state prison, in exchange for admission on the gang charge.

Detective Bautista said that the way he sees it, this person does not have this gun for the purpose of hunting. He keeps it ready and can use it to commit a crime, and then dispose of it without the worry of having it connected to him, since it was a stolen weapon.

He said that gang members prefer to use stolen weapons for this reason.  He said that for gang members, a gun is like a hammer for a carpenter.  He also admitted that at the arrest of Arias in this case,  though they found the gun, they found no gang clothing, no gang graffiti, no gang haircut, nothing to indicate that Arias was in a gang at that point – their reports also noted no gang-related objects of any kind.

The Colusa Sheriff Deputy, who encountered a drunk and boastful 16-year-old Jesus Arias,  saying he was a proud Sureno and he was looking forward to putting in work for his gang, and was intending to commit criminal violent acts to build his reputation and move up the ranks, was dealt with by the Deputy with a phone call to his mother to come and pick up the boy.

The jury heard the rhyme from the MySpace page at the beginning, middle and end of the trial. The rhyme was used to emphasize the importance of guns for gangs and stated “Click click, bang, bang… kill a Nor puto win a prize, Kill a Sureno and your whole family dies… ” Despite all that fear-mongering, Probation wants to let him out. Perhaps they were told about the erased “gang” tattoo, unlike the jury who was prevented from hearing such evidence.

The bottom line is that, as I always believed, this was a thin case, based on little evidence and a lot of speculation on the level of danger that Mr. Arias represented to the community.  The Probation Department agrees with that assessment and has recommended probation, despite the fact that Mr. Arias technically violated probation by knowingly being in the vicinity of the weapon.

In order to coerce Mr. Arias into prison time, Mr. Couzens has vindictively trumped up charges of pruno possession that, according to the Public Defender, is never charged in this county.  The other individuals caught with the substance, all of whom are in the same position as Mr. Arias, awaiting sentencing, were not charged.

Mr. Arias should not go to prison based on possession of prison wine and Mr. Couzens needs to stop trying to waste court time and taxpayer money by pursuing this.

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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17 thoughts on “Public Defender Files Motion Charging DA With Vindictive Prosecution”

  1. hpierce

    I concede EVERY point you make in this installment. My question is, how in hell can inmates get the ingredients, equipment, and time to use them, unchecked, while the fermentation process plays out? I just don’t get, absent collaboration by the sheriff’s deputies, how “pruno” can exist at the YC jail… seems it would be more of an issue than just smuggling in alcohol products. I realize that this is not your primary point, but if ‘pruno’ was not available, there could be no charge that an inmate would be unfairly punished for imbibing it.

  2. jake wallace

    We have the Hon. Dave Rosenberg, the former county supe, who has used the court to conceal felony allegations on former county council, now another Yolo judge, Steve Basha.

    Again this year, the YOLO grand jury,will NOT investigate because it is under the control of the Yolo superior court, operates as a civil GJ even though none exists in California. The GJ has no independent council, is hand picked by the criminal Rosenberg & continues the obstruction of the court & other county agencies/officials. Judge Rosenberg’ criminal scheme through the grand jury has been taking place long before the wimpy judge was ever seated; Rosenberg’s judicial career now depends on it.

    Judge Basha, then council, knowingly appts chief Don L. Meyer out from under a fabricated felony investigation from Calaveras and then Basha lied under a mishandled GC 27641 complaint against county council never openly conducted by the BOS in 2005 & 2009.

    Judge Basha has assured that Judge Basha will never be held accountable like so many Yolo residents the fine judge hammers.

    Judge Rosenberg, identical to the Hon. Donna M. Petre, who jointly concealed a criminal scheme by now Sac probation chief, Don L. Meyer, to obstruct, conceal and later fabricate felony accusations filed under PC 832.5.

    Judge Rosenberg, under an oath and cannons has failed to report criminal acts of the Yolo superior court, grand jury & the court’s appointment of Chief Meyer, out from under a felony investigation, filed on behalf of state foster youth all laid out in qui tam suits CV06-581 & CV 32550.

    We have Judge Petre then the presiding judge, mishandling the qui tam suit as a defendant. We have the Hon. Timothy Fall, who removed the case from his docket and sent the case off to the retired annex court room where a very retired judge, Richard Haugner, killed the suit on behalf of Judge Petre & DA Dave Henderson, after the grand jury, BOS, probation & the DA concealed the facts and never investigated.

    The whole Yolo state superior court has been sucking PRUNO for way too long.

    Pruno is another example of inane matters when serious criminal issues are concealed by roid rage the little BIG man Reisig & the Yolo superior court.

    The Yolo superior court is riddled with judges that are unable to function as ethical judicial officers & that makes the DA’s office even more powerful

  3. jake wallace

    Yolo County Board of Supervisors
    625 Court Street
    Woodland, California 95695

    October 13, 2009

    Jacob Tyler Wallace
    1210 N. Cherokee Avenue Apt. 316
    Hollywood, California 90038

    Re: Government Code 27641: Accusation Against California attorney acting as Assistant County Council, Daniel Carl Cederborg State Bar # 124260 for the subversion of GC 27641 filed against Cederborg’s superior county council and acting CAO, Robyn Truitt Drivon & Judge Steve Basha; Drivon’s former boss. Brown Act violation; violated Article 1; Rules Governing Meetings; Sec.2-1.101; Sec 2-1.113; Sec 2-1.208.


    1)ACC Cederborg advised the supervisor’s to meet and address GC 27861 filed September 11, 2009, which was an undisclosed meeting held by local elected officials to avoid public scrutiny by holding secret “workshops” and “study sessions.” That resulted in the county council flipping the GC 27641 into a ‘claim’ against the county now being handled by Yolo Human Resources.
    2)ACC Cederborg told Wallace by phone on October 12, 2009 (530-666-8277) that Yolo had already investigated now Sacramento Probation Chief, Don Meyer, for the subversion, concealment and the production of a falsified law enforcement investigation by a subordinate Teri Hall, days before Yolo county appointed CPO Don Meyer. The facts refute that.
    3)ACC Cederborg told Wallace that Yolo had no liability as Yolo did not know of CPO Don Meyer’ alleged criminal acts before the appointment and that the acts took place in another county anyway. The facts refute that.
    4)ACC Cederborg told Wallace that the allegations against CPO Don Meyer had been lawfully investigated outside of Yolo. The facts refute that.
    5)ACC Cederborg told Wallace that the Yolo board chair, McGowan and CAO, Robyn Truitt Drivon can privately decide on what matters appear on the BOS agenda as received correspondence. The complaint was filed against Robyn Truitt Drivon and the GC 27641 never appeared as official received correspondence as of Oct 13, 2009. The facts refute that. But the GC 27641 was in fact acted upon anyway.
    6)ACC Cederborg told Wallace the GC 27641 included several supervisor’s and was fatal as the board had no quorum to act but ACC Cederborg then stated the GC 27641 had been acted upon. How would the ACC know that before a public hearing? Cited supervisor’s never had the chance to publicly oppose that allegation or disqualify themselves. ACC Cederborg’s acts continue to conceal the allegations against Truitt and Judge Steve Basha.

    Page 2 GC 27641 Filed Against Assistant County Council, Daniel Carl Cederborg
    October 13, 2009

    7)Wallace received a phone call from Yolo Risk Assessment Manager, Hugo Martinez, on Friday, October 2, 2009 (530-666-8425). Mr. Martinez stated that he had no authority to make the call nor the authority to address the GC complaint and was doing so due to the mistake of another county employee. Mr. Martinez participated in an in depth conversation and stated the county had 90-days to respond. Mr. Martinez was a tool used by ACC Cederborg to subvert the public disclosure and public handling of the GC 27641 complaint; where ever that may have led.
    8)Daniel Carl Cederborg, Yolo County Council subordinate addressed allegations against the county council. Cederborg should have recused himself for a conflict of interest and should have allowed the accusations to be cited as official board correspondence, publicly discussed and acted upon per Yolo county’s Article 1; Rules Governing Meetings and the Brown Act. No written response has been received to date though ACC Cederborg stated Human Resources had responded in writing.
    9)ACC Cederborg’s attempt to have the GC 27641 flipped into a claim against the county; counters a civil & penal code false claims act suit(s) CV06-581 filed in the Yolo superior court in 2006, where Yolo and Calaveras official’s (CV 32550) jointly hired the law firm of Angelo, Kilday & Kilduff with public funds to dismantle the suit(s) after the grand jury and an earlier GC 27641 complaint was subverted.

    Jake Wallace

  4. Alphonso

    Pruno = “The end result has been colorfully described as a “vomit-flavored wine-cooler” – obviously something to avoid!

    I wonder what is behind what appears to be strong motivation to jail this person? Is it a factor in the DDA job evaluation process? or does it impact grant money in some way? They got the conviction so why are they going for more?

  5. Roger Rabbit

    This is SOP (standard operating procedure) for Mr. Reisig and his office. He is a bully plain and simple and he uses his public office or trust to bully, threaten, intimidate and manipulates the system for his own goals.

    How many times has Jeff Reisig been exposed for unethical practices and still people want to look the other way. He is a crooked little man who is a Tyrant in his little world.

    [quote]A tyrant will always find a pretext for his ternary[/quote]

    Mr. Reisig is great at lying in his press releases and using the pretext of public safety, gang members, drugs and crime to promote is crooked agenda.

    He is not better than any gang member he chases, Mr. Reisig just wears a suit for his colors and his common sign is his Bar card.

  6. JustSaying

    Agree that the judge should take care of this promptly if:
    *It’s true that no one has been charged before and that others in the same situation were caught the same day doing the identical thing, and
    *Mr. Couzens said the new charges weren’t brought in order to provide negotiating power in the earlier case, yet said “…we’re willing to offer to just dismiss it with a Harvey waiver if he is willing to go to prison on the existing case…”

    The is quite a different thing than negotiating everything before charging and going to trial. Charging a prisoner with a violation that’s been handled administratively for years might not be “vindictive,” but it’s certainly frivolous. What you’ve reported makes it seem fairly clear that Mr. Couzen’ claim that there’s no relationship between the two charges isn’t correct.

    One thing that bothers me about the DA’s office doing stupid stuff like this is that it generates claims of connections, bottom lines and bigger issues that aren’t supported by facts. The new outrage doesn’t mean that the earlier case was “thin” or that it fairly can be called “very similar” to a different case. Every mistake doesn’t contribute to proving that Mr. Reisig is a unjust, vindictive, lying crook.

    And, I’m with Howard on pruno production. Why can’t a jail the size of Yolo’s keep alcohol from being made by inmates? Even if it’s not a difficult process, it does take materials and time. Wouldn’t routine jail supervision turn up most fermenting spots? Do we need an fementation-sniffing dog to help?

  7. cleyva

    roger rabbit i agree with you – my son was threaten with a 20 year prison term- then they put a half of million dollar bail on him – then the DA said if he tells on his friends he could come home and he did not so then they told us he had to plea or go to prison who wants there child to go to prison? so now he has a strike to a “gang enhancement” this is crazy to me but they seem to do it over and over again, so how is it that if he told on other kids he could come home? and so he did not and gets a “strike” to a “gang enhancement” i dont get it

  8. valerie

    Wow! The DA’s are at it again. Question, has anybody reported these people to the FBI yet? Issue after issue with Reisig and his “gang”.
    When will the actions of these people be stopped? Better yet, what are the chances of an ombudsman getting involved? Looking into Reisig’s record since he took over for DDA is not good at all. I am sorry, this man is prejudice and overzealous. The community needs to rally to get this man out of office, and he can take all the evil with him.

  9. cleyva

    Well valerie that is sooooooooooooooooo ture but its like fighting a fire and we as a community dont seem to have enough water to put the fire out more of us need to step up and fight back

  10. David M. Greenwald

    [quote]Why can’t a jail the size of Yolo’s keep alcohol from being made by inmates? Even if it’s not a difficult process, it does take materials and time. Wouldn’t routine jail supervision turn up most fermenting spots? Do we need an fementation-sniffing dog to help? [/quote]

    The same reason maximum security prisons can’t. Inmates have all day to figure out ways to conceal things, and prison officials lack the staff. And really is pruno a bigger concern than overall security and safety?

    I didn’t report on this, but I talked to a lot of prosecutors both former in this county and in other counties and no one has heard of pruno possession being charged and prosecuted.

  11. E Roberts Musser

    cleyva: “roger rabbit i agree with you – my son was threaten with a 20 year prison term- then they put a half of million dollar bail on him – then the DA said if he tells on his friends he could come home and he did not so then they told us he had to plea or go to prison who wants there child to go to prison? so now he has a strike to a “gang enhancement” this is crazy to me but they seem to do it over and over again, so how is it that if he told on other kids he could come home? and so he did not and gets a “strike” to a “gang enhancement” i dont get it”

    Plea bargaining in this country is permitted. If the defendant agrees to “cop a plea” and admit guilt to a lesser crime, the prosecutor will agree to hand out a light sentence (just as happened in your son’s case). The idea is to hash out an agreement between defendant and prosecutor, to avoid the cost of trial.

    Unfortunately, it becomes a bargaining session and not about finding the truth. The prosecution “throws the book” at a defendant, to get them to give in and admit to committing a crime that they may not have committeed, and in turn gives the defendant a lighter sentence than they would if found guilty after being tried in court.

    If the defendant fails to cooperate, then the prosecution brings to bear the full extent of the law, charges every conceivable crime, and prosecutes with vigor in the hopes of a finding of guilt. If the verdict goes against a defendant, it will deter future defendants from refusing to enter into plea bargains.

    Your son had the choice to fight the charges, but then ran the risk of a trial in which the prosecution has more resources at hand than you probably did. Plea bargaining seems to be a necessary evil to cut down on the number of cases that go to trial, but certainly has inherent unfairness built into it. But let me ask you this – would you have preferred your son were offered no plea deal, and had been forced to go through a full blown trial?

  12. Iyah

    Elaine, you bring to light many of the inherent problems with plea bargains. However, I think one question everyone should ask is if the DA is abusing his power and using the “weight” of the legal system to intimidate innocent people? There needs to be independent reviewing agency of the DA’s office to decided if there have been abuses as described by cleyva and other abuses as reported by David earlier this week.

  13. E Roberts Musser

    lyah: “Elaine, you bring to light many of the inherent problems with plea bargains. However, I think one question everyone should ask is if the DA is abusing his power and using the “weight” of the legal system to intimidate innocent people? There needs to be independent reviewing agency of the DA’s office to decided if there have been abuses as described by cleyva and other abuses as reported by David earlier this week.”

    The DA is well within his rights to charge a defendant with every conceivable crime possible so long as there is probable cause for each crime charged. And it is well withing the rights for the DA to ask for the harshest sentence possible for each of those crimes. It is up to the Judge and Jury to actually decide innocent/guilt and the ultimate sentence.

    What you are talking about, I think, is “prosecutorial discretion”. A DA has quite a bit of discretion at his/her disposal on whether to charge a defendant, what type of plea bargain to offer, what sentence to ask for, etc. This is a much harder concept to nail down as to whether there has been an abuse. Discretion by its definition is according to Webster’s Dictionary: “power of free decision or latitude of choice within certain legal bounds”.

    So the standard a DA is held to insofaras prosecutorial discretion is very subjective rather than objective – and very political. Many in this state are strong law and order advocates, and want defendants prosecuted to the fullest extent of the law. That may be what gets a DA elected, a super tough stance on crime.

    Is the DA “abusing his power” when prosecuting crimes to the fullest extent of the law? Here is a definition of prosecutorial misconduct from “Prosecutorial misconduct is conduct which violates court rules or ethical standards of law practice. Examples, among others, may include:

    ■Courtroom misconduct (making improper remarks or improperly introducing evidence designed to prejudice the jury: violating rules regarding selection of the jury; or making improper closing arguments);
    ■Hiding, destroying or tampering with evidence, case files or court records;
    ■Failing to disclose evidence that might tend to exonerate the defendant
    ■Threatening, badgering or tampering with witnesses;
    ■Presenting false or misleading evidence;
    ■Selective or vindictive prosecution
    ■Denial of a speedy trial rights
    ■Use of unreliable and untruthful witnesses and snitches

    And “innuendo” or “suspicion” is just not enough to prove prosecutorial misconduct. You have to have hard evidence. The problem is that plea bargaining is permitted by law, takes place behind closed doors, and the defendant who takes the plea bargain has agreed to plead guilty in exchange for a lighter sentence than what he might get in court. So how do you prove “prosecutorial conduct” in such a situation AFTER THE FACT? It is extremely difficult. You would have to be able to PROVE some sort of COERCION, such as holding a defendant for more than the legal number of hours for an interrogation, that sort of thing.

  14. Iyah

    Elaine, thank you for your answer. I understand discretion and also understand why it is there in the law. What this points out to me are also some of the problems. How to determine abuse of discretion? Many people who have suffered one of the ethics violations you have pointed out will be afraid to jeopardize their situation and so will take the lesser of two evils. However, this does not make it right. I think I’m trying to provoke thought and although we don’t have the ability to correct the legal system on this forum, it’s good to generate the discussion about possible solutions to shortcomings. We know that there are abuses on all sides, so how do we address it? As far as I can see presently there are two or three methods. Ethics complaint to the bar, a motion filed by an attorney like the attorney in this article filing a vindictive prosecution and a lawsuit against the county. I was thinking if there could be an agency or auditor where people can file complaints that can be reviewed and weighed almost like an ombudsman – something outside the bar.

  15. PatLenzi

    I must admit I was shocked to hear that anyone was being charged with a “pruno” related offense. As a 14 year prosecutor who has worked in 4 different counties, I have NEVER heard of this being charged. At most, I have seen it used to deny some “good behavior” time credits at the time of sentencing or thereafter. It is always, to my knowledge, used as an internal disciplinary measure within the detention facility.

    I would agree that on its face, this smacks of selective or vindictive prosecution in this case if the affidavits of the public defenders are accurate. I have little doubt, if any, that they are inaccurate.

    Mr. Musser: Although the DA can legally file charges based upon probable cause, it is the practice of other DA’s offices to file based upon the ethical standard required to pursue prosecution to trial – “reasonable likelihood of conviction.” That latter standard will include evaluating issues prior to filing such as evidence that may be suppressed due to a bad search, the likelihood that a particular witness will be credible – or will even show up when subpoenaed – or can even be located, etc. It may include evaluating whether it is appropriate to file as a felony or misdemeanor.

    Yes, prosecutors have discretion and as such, in my opinion, it is important to exercise that discretion and not simply file every case that comes their way just to show a high filing rate or make the local police happy or to try to get one offender who a jury has made a decision about – which seems to disrespect the jury verdict. Prosecutors should seek justice. Filing a “pruno” charge in this case is inappropriate.

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