I met recently with a prisoner in Santa Clara County Main Jail and I wanted to share a little of the background. There is no “to do” out of this, at least that I can see, but it does put things in perspective.

At a PSJC (Pub Sfty & Jst Cmte) meeting last year, Laurie Smith said they had two prisoners who had been in jail “for more than 10 years.” I sent her a note asking who these two were and she replied that she would not say. I filed a CPRA request for the information and that was refused. Apparently the Sheriff’s office does not believe that the names and booking dates of people in jail is public information. A friend of mine is a public defender. He found one of them, who I will call Trevor, in an unpublished opinion of the Appeals Court. He could not find the other. Did you know that there is a judicial “Dark Web” where unpublished opinions are searchable if you know the precise search terms to use but where documents are not fnndable on any outside search engine? I did not.

There have been a few Civil Grand Jury reports on why some people are in jail in Santa Clara County for extraordinarily long times. I will include a link to the report and the follow-up report below. The story given is mostly that the reasons for this are complicated. Getting scheduled for trials takes a long time. Getting coroner reports takes up to a year. Getting psychological evaluations takes a very long time. People change their lawyers, their lawyers retire or move on to other jobs, and these things add delays. And I am not the first one to realize that when everyone who comes into the gets asked “Will you give up your right to a speedy trial?”, which is one of the first things that gets asked, if everyone said no, it would be like dropping an atomic bomb onto the judicial system. The entire system would come to a grinding, crashing halt. It turns out that we are we are very willing to charge people but we are not willing to pay for the infrastructure then required to try them fairly. Who knew, right? I am shocked, shocked, I tell you. :–)

But all of these reasons do not apply in Trevor’s case. It turns out to be much simpler here, but no more solvable. Trevor got in a fight defending someone, but the fight involved several people on both sides. And someone was killed. The DA decided to prosecute Trevor for murder one with gang enhancements. It seems that our DA has, at some times, believed that if something happened that involved more than one person on one side and more than one person on the other, then it must have been a gang thing, right? And I bet you can guess the ethnicity of the people involved.

There was also expert testimony that spoke to intent, so Trevor was convicted for murder one. But then. It turns out that the expert witness, when he spoke about the thing that “proved” intent, was just completely making it up. Like the old joke among math people that when you read a statistic in the popular press, 63.5% of them are just made up off the top of someone’s head. Like that. So eventually the testimony was thrown out and the ADA was reprimanded for not making any effort at all to verify the validity of the testimony of the “expert” witness and the conviction was thrown out.

So, what is the problem? Well, Trevor has now been in jail, not convicted of a crime, since before 2010. That is 13 years. And it has not been because the evidence was complicated or that there were checks and verifications to be made. The problem was that the DA wanted to get murder one and their representative had someone lie to get it. And they do not want to admit that they were wrong.

Prosecutorial discretion is such a huge … thing in our system. It is almost completely unlimited. We talk about reforming the police and the courts and this is important. But. Imagine that our justice system is a 33-floor building. The police is the lobby and there is some public information about what happens there. It is not enough and it can arbitrarily hard to get to, but there is, at least theoretically, public information about what is happening. The top floor is the court. And there is of course, a lot of information about what happens, even though there are, again, many hoops to jump through. But all of the other floors of the building have covered windows and nothing can get out. 97% of people charged with a crime never go to trial. And the DA does not have to say very much about anything at all about what they do to get those plea deals. They are required to do some reports and they choose to tell us others things when it suits them, but their discretion is huge and they do not have to say anything at all about why they did or why they did not do something. It is an enormous black hole and, frankly, this is what I think stops a lot of justice reforms. There is almost no thing that can be done that a DA cannot work around and block the effect of in individual cases, about which they can say nothing at all. If you read any bills that seek to reform our courts or our procedures, you will almost always see little bits down at the bottom, after all of the lofty declarations of the intent of the Legislature, that preserve the right of the DAs to prosecutorial discretion.

What is the result of this discretion here? Well, gang enhancements are longer a thing in California. And the proof of intent in the case came from a Lie told in court. So, murder two would have been a reasonable charge. If Trevor was charged with murder two and convicted, so would have been out at least six years ago. But there he is, still waiting in jail. Apparently, the DA’s discretion and the under-funded court system can ensure that if the DA wants you to wait in jail for a long, long, long time, they can do it. And, as far as I can see, nobody can or will do anything about it.

https://www.scscourt.org/court_divisions/civil/cgj/2017/Why_Does_It_Take_So_Long.pdf

https://www.scscourt.org/court_divisions/civil/cgj/2018/Continuity%20Report%20FINAL.pdf