We will have a full report on this case when the jury comes back from deliberations, but we are pretty comfortable, given the facts of this case, in suggesting the individual will be facing a good amount of time in prison and faces an exposure of life.
His response was something to the effect of, do you think I’m crazy, I never got an offer, if I had I would have taken it.
About a month ago, the Yolo County Board of Supervisors was going over the budget and wondering why the number of trials had gone up while the crime rate remained steady.
Tracie Olson, the Yolo County Public Defender, basically indicated that there needed to be a way for both sides, the DA and the defense, to come to an agreement and avoid trial.
She told the Board of Supervisors, “It is my opinion that the number of jury trials has nothing to do with the crime rate.”
“There are some cases that you just have to try because we think the facts are one way and the District Attorney thinks its the other, both are legitimate, and a jury has to figure out for themselves which ones they believe and which witnesses are credible,” Ms. Olson said.
But this was a case where the DA never even offered any kind of settlement that would free up court time.
Tracie Olson was very diplomatic to the Board of Supervisors, because she put blame on both sides. She said that there were a lot of jury trials where the two sides should be meeting in the middle.
“We just couldn’t meet on the minutiae,” she said referring to some recent acquittals, “so we ended up having a jury trial, we did a great job, and our clients were acquitted.”
“I think my office would say the DA’s have changed. I think the DA’s office would say my office has changed,” she said. “I think they’re both right.”
She also suggested that the courts do not get involved as much as they used to. By this she meant that judges need to pre-conference cases “in a meaningful way.” The sides in chamber would lay out their cards and the judges would say, “given this, this is what I would do.”
“Sometimes we don’t have to fight anymore if we know [what a judge is inclined to do given the facts presented to him],” she said. “So the judges need to do more work and the judges acknowledge that.”
While Ms. Olson was very diplomatic and shared blame, the fact is that the public defender’s office’s first duty is to represent the needs of their clients. Moreover, the prosecutors really call most of the shots in terms of which charges to file and what deal to make.
One big problem that Ms. Olson did not bring up to the County Board of Supervisors is what appears to be an increasingly top-down operation in the DA’s office. One defense attorney told me that under the previous DA David Henderson, the deputy DA’s had a lot of discretion in terms of making deals and reaching plea agreements, with the exception of murder trials (which obviously makes a good deal of sense).
However, we have been told, particularly on gang cases, that the deputy district attornies have no discretion. All of the calls on the gang injunction trial apparently came from Jeff Reisig himself and his supervising DA, Garrett Hamilton.
But it is not just on the gang case, as we have frequently seen cases where the deputy DA and the defense attorney have reached some sort of tentative agreement, but the deputy DA had to clear the agreement with his or her supervisor.
We have never seen the public defender’s office operate in the same way. Part of that is the client is the ultimate decider as to whether or not to take any plea agreement.
But it is more than that. There are cases that the top brass have told the deputy DA’s that they simply cannot drop. At times we have heard through the grapevine that deputy DA’s do not want to try a particular case, their body language definitely shows it, but they have no other choice.
One such case may be the re-trial of Jose Valenzuela, who was acquitted of stabbing one individual and had the jury hand an 11-1 decision in his favor on the second individual. The DA’s office has elected to retry that case, despite the low probability of conviction, and that order has come from the top.
People have often asked, when someone gets some seemingly absurdly long prison sentence in a case that went to trial, what the offer was. More and more we are discovering that there either is no offer or the offer is just as bad as the ultimate sentence.
Most of the time, the public defender’s office, even when their client is convicted, gets a better deal by going to trial than any deal they are offered.
That is a problem in two ways. First, because it means that the DA’s office is misreading their evidence and pushing for too harsh a punishment. Second, it means that valuable and scarce resources are wasted.
We have seen layoffs to Sheriff’s Deputies, the threatened closure of a County Jail, the possibility of some crimes not getting prosecuted and other problems, and yet, we have seen little evidence that the DA’s office has changed their way of thinking. If anything, it is becoming more and not less rigid.
In the end, I agree with Tracie Olson. There are cases where the facts and the dispute of facts dictate that there must be a trial. But there are a lot of cases that should not go to trial, and it would save the county money if the DA changed the way they handled these matters.
It is ironic that this week we saw yet another delay in the Topete case, that is rapidly approaching a three-year duration. People around the court are now wondering out loud why Judge Richardson allowed the very capable but nevertheless 83-year-old Thomas Purtell to serve as co-counsel for the defense of a death penalty case.
With his stroke, the trial is at least delayed another two weeks, and far more likely a few months.
One of the defense attorneys around the court suggested to me early this week that if the DA would simply drop the death penalty as a consideration, the trial could be done in two weeks. I told him they could probably get a LWOP (life without parole) plea and end it tomorrow if they offered it. How much money would the state and the county save if that were to occur?
Everyone else is having to cut spending in the wake of the worst economic downturn since the depression. And yet, for the DA’s office it is largely business as usual, and this is money that could be saved with a minimal impact on the public or law enforcement.
—David M. Greenwald