Sunday Commentary: Direct Filing System Leads to Overcharging


A new poll released on Friday finds that Prop. 57 has the overwhelming support of the voters.  The USC Dornsife/Los Angeles Times survey found that a whopping 57 percent of the voters back the initiative, while only 31 percent oppose it.

“Proposition 57 should pass comfortably,” said Ben Winston of Greenberg Quinlan Rosner Research, the Democratic pollster who makes up the bipartisan team that conducts the survey.

The strong support persists despite strong opposition from law enforcement.  On Wednesday, Supervisor Matt Rexroad, a Republican, wrote an op-ed in the Vanguard opposing the measure.

While it is not much of a surprise that Matt Rexroad or Yolo County DA Jeff Reisig would oppose Prop. 57, it is more surprising that liberal Supervisors like Jim Provenza and Don Saylor would.

On Friday, Supervisor Provenza joined with Matt Rexroad and DA Jeff Reisig in arguing against Prop 57.  In both Supervisor Rexroad’s piece which focused on Brock Turner, and the piece by Jeff Reisig, Jim Provenza and Matt Rexroad – it is scare tactics before facts.

The co-authored piece focuses on the tragic shooting of Steven Owen, an LA County Sheriff who, as they describe, “responded to a burglary call at an apartment building. It had been placed by a woman who heard a loud noise downstairs and saw a broken glass door. She ran upstairs to her bedroom where she waited with her 7-month-old baby for officers to arrive. Shortly thereafter, she heard gunshots, looked out her bedroom window and saw Sgt. Owen lying face down, motionless.”

They write, “Lovell is just 27, but he already has a lengthy rap sheet that includes 12 arrests and two state prison sentences. They include armed robbery of a USC community safety officer for which Lovell was on parole when he killed Sgt. Owen.”

They argue, “Unfortunately, Prop. 57 likely will make tragedies like these more common in California. The key to reducing violence is to make sure criminals pay for their crimes while providing rehabilitation for those who want it. Gov. Jerry Brown said Prop. 57 will do just that: ‘Prop. 57 focuses law enforcement on serious violent crime, stops wasting costly prison space on nonviolent people who can be rehabilitated, and directs savings to programs with a proven track record of stopping the cycle of crime.’

“But don’t believe it,” they said. “Prop. 57 doesn’t specify what constitutes ‘serious violent crime.’”

The problem with both pieces is that they focus on problems that exist under the current system.  While Prop. 57 does make people eligible for early release, a parole board has to agree to it and, as we pointed out in our piece on Thursday, that happens only about 17 percent of the time.

A lot of focus on Prop. 57 has been on early release, but there has not been enough focus on the impact of direct filing.

On Friday, we covered the four-defendant juvenile case out of West Sacramento – and we clearly have questions about the conduct of Mr. Reisig’s office in this respect.

The four-defendant case has a lot of interesting problems, including eyewitness identification issues that are almost farcical.  But the core issue is direct filing.

The DA was able to direct file the case as an adult matter, alleging “that the defendants were over the age of 14 and committed the crimes for the benefit of a criminal street gang.”  The problem is that Judge Rosenberg, who held the defendants to answer on the main charges (which are thin in several cases), dismissed the gang charges and enhancements against all of the co-defendants.

As a result of losing the gang charges, the district attorney’s office lost the ability to direct file the case in adult court, and it would have reverted to a juvenile matter.  On January 5, 2016, the prosecution moved to dismiss the case and the defendants, again, juveniles, were allowed to go home.

But on April 2, 2016, the prosecution refiled the criminal complaint with the original allegations for gang charges except, instead of moving forward with the preliminary hearing, the prosecution sought a grand jury indictment.  By going the grand jury route, the DA was able to get the gang charges through, which the Yolo County judge had originally dismissed.

It is not against the law to do this, but it certainly skirts the intention of the law.  The purpose of the preliminary hearing is that, in order to hold people to answer for charges, the government needs to show there is enough evidence (probable cause) that they committed the crime.  Judge Rosenberg found that there was not enough evidence to hold them on the gang charges.

So what the does the DA’s office do?  They go around the judge.  They take advantage of their ability to dismiss the charges and then refile.  This time, they take no chance, and they go to the grand jury.

Writes one of the defense attorneys, Robert Spangler, “With no defense attorneys present they presented the case exactly as they wanted with no interference and obtained an Indictment on each of the defendants for all of the charges, all of the enhancements, including those involving gang charges and enhancements.”

That’s the problem with the system.  Instead of having a hearing to determine whether the juveniles could be charged as adults, the DA’s office circumvented the system.  This is all the result of the direct file system.

All Prop. 57 would do is allow a judge, rather than the prosecutor, to determine whether or not to charge the defendants as adults.  That’s what the DA is fighting against – he’d rather have a group of citizens make the determination rather than an experienced and very fair judge.

Jeff Reisig wants to talk about an extreme example where the parole system under the current law failed, rather than about the policies of his own office in circumventing the judgment of an elected judge with years of experience – in order to keep gang and adult charges on a bunch of juveniles.

Rod Beede, another defense attorney in this case, writes in a letter to the Enterprise, “Nothing in this measure prevents prosecutors from filing these cases in juvenile court and then petitioning to certify the minor defendant to adult court based on several factors, most importantly the nature and severity of the crime and the minor’s amenability to rehabilitation.

“What it does prevent is a single decision by the district attorney’s office to make this critical call without any input from the court, let alone defense attorneys or the community.”

That’s what happened here – the case went to preliminary hearing, and the judge threw out the gang charges due to lack of evidence.  The DA dismissed and refiled the case where the judge and defense attorneys had no input, and got the charges re-imposed.

If the polls are correct, the DA won’t be able to do this anymore and that is, in my view, a good thing.  If the charges warrant adult charges, let a more independent entity – like a judge – make that call.

—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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1 Comment

  1. Davis Progressive

    it is interesting how far the pendulum has swung.  it wasn’t long ago, this kind of measure would never have been proposed and a tough on crime measure, such as the one that allowed direct file in the first place was a slam dunk – now i’ts the reverse.

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