When Dean Johansson ran for DA against three-term incumbent Jeff Reisig, one of his biggest complaints was one that we have reported on over the course of the last nine years – the district attorney’s office routinely overcharges criminal cases.
Some have defined overcharging as tacking on additional charges in order to induce a plea bargain. This form of overcharging, known by some as horizontal overcharging, is used strategically to induce the defendant to plead guilty on some charges in exchange for dismissal of the rest.
But this is not what is happening in Yolo County. What is happening in Yolo County is what Professor Albert Alschuler, in 1968, called “vertical” overcharging, where the prosecution charges a single offense “at a higher level than the circumstances of the case seem to warrant.”
One reason we know that what is occurring in Yolo County is the latter and not the former is we see a relatively low rate of plea bargains. Over time, the observation that I have heard from defense attorneys as to why a case (that seemed ridiculously charged on the surface and got an acquittal by the jury) went to trial is that they did not get a reasonable offer.
Data seem to back this observation up. Yolo County leads the state in per capita trial rate. Moreover, considering that Yolo County is a middle tier county in crime rate, we have a high incarceration rate but also a high acquittal rate. Forty-two percent of cases, according to Mr. Johansson, that go to trial get some form of acquittal compared to the statewide average of 16 percent.
While Mr. Johansson’s campaign, and indeed nine years of Court Watch material, have put the onus for this squarely on the back of the district attorney’s office and its charging policies, it is my contention that judges bear a good amount of responsibility here as well.
We have seen this year alone a number of trials with questionable verdicts and potentially innocent people convicted without a willingness of the judge to throw out the verdict. It is notable that, in both of our recently suspected wrongful convictions, we have seen the judges unwilling to order a new trial despite troubling findings post-conviction.
In sentencing Justin Gonzalez to 70 years to life, Judge Daniel P. Maguire acknowledged he was troubled that he was holding a CD with a recording that the defense did not have access to during the trial. However, he ended up ruling that, given the thoroughness on which the defense was able to discredit witness Ruby Aradoz even without this key evidence, even if the defense had had access to the recording, it would have made no difference in the outcome in the trial.
Left unanswered by the judge – how do you get to guilt without believing Ms. Aradoz’s testimony?
Meanwhile, Judge Rosenberg acknowledged, “The jury could have gone a different way, but it didn’t.” He said that 12 people found Mr. Cadenaz-Lopez guilty beyond a reasonable doubt and that he could not grant a motion for a new trial based on the insufficiency of the evidence in that case.
But one of the key jury instructions is if “you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.”
And we saw the judge seeming to acknowledge there were two reasonable conclusions about the evidence in this trial, and yet he accepts the sufficiency of that evidence for a guilty verdict.
The fact that these two judges are two of the more reasonable ones on the bench – and even they would not overturn these questionable verdicts – speaks volumes about the unwillingness of the Yolo County bench to act as a brake against prosecutorial power in this county.
In a strangely criticized ACLU article about the power of the prosecutor, a former defendant discusses a rare time when a judge – not in this county – overruled a prosecutor.
The woman recounts: “The agreement between my public defender and the prosecutor was to be a one- to three-year sentence. My time before the judge came, and the prosecutor informed him that we did not have an agreement: They were asking for a two- to six-year sentence. The emotions I felt in that chair, shackled by the waist and ankles, are difficult to put into words. I was at the complete mercy of that prosecutor. Luckily for me, the judge thought the plea agreement was unreasonable. My final plea: 14 months to four years.”
They had an agreement on a one- to three-year sentence for a first time offender. The prosecution apparently changes its mind, but gets overruled by the judge who then imposes a more reasonable 14-month sentence.
As I noted earlier this week, the woman was quite fortunate the judge was willing to do that. It is very rare that a judge is willing to overrule the DA on a plea agreement.
We had an opportunity to see Judge Rosenberg do something similar in a small case on Wednesday where there was a preliminary hearing. Justin Lopez has a good job, seemed to be a nice and personable guy, but apparently has a drinking problem that causes him to do stupid things. And one night after drinking, he vandalized two vehicles and took off running through someone’s yard in West Sacramento.
The defense did not contest that Mr. Lopez was there or did these things. They were willing to waive the preliminary hearing. But Deputy DA Rachel Raymond insisted on a live preliminary hearing. Judge Rosenberg, with a busy schedule, wanted the preliminary hearing to be quick and wanted it done in 30 minutes.
As it dragged on, he angrily called Ms. Raymond and Deputy Public Defender Lisa Lance to his bench side, was seen animated and then took the rest of the calendar before finishing the preliminary hearing.
My observation was that Ms. Raymond was trying to use the preliminary hearing as a way to dig for more substantial charges.
When the preliminary hearing was heard, the defense moved to reduce the charges to a misdemeanor.
Judge Rosenberg, in what he termed a close call, ruled for the defense. Weighing heavily in his favor were the character reference letters and the overall facts of the case. He did note that this was not a situation that could be chalked up as a one-time thing. Moreover, he saw the connection between the bar fight and the alcohol-related incident here.
He did this over the objections of the deputy district attorney who had argued this was not a first-time offense and as such she couldn’t support reducing the charge.
However, Judge Rosenberg, while concerned about the defendant’s priors, felt that the misdemeanor more closely fit the nature of the crime, but he wanted Mr. Lopez to stop drinking.
An observer who is not familiar with the court proceedings in Yolo County might be unimpressed by this. But it is a rare time when a judge overrules the prosecution on a matter even as small as this one. Even rarer is when the judge does this on a major case.
As we have pointed out before, the prosecution could not get away with overcharging if the judges did were more willing to do things like reduce charges to misdemeanors in the interest of justice.
—David M. Greenwald reporting