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It’s not even Labor Day yet — the traditional start of the fall campaign season — but Contra Costa County DA candidate Michael Menesini is on the offensive: His campaign workers have stats that he says prove the DA has a woeful conviction rate. In one of the county’s most conservative courthouses — where prosecutors should have an advantage — the DA has been losing a surprising number of routine cases such as DUIs and small-time drug offenses. According to numbers provided by Menesini, a San Francisco prosecutor who is running for DA in November, the conviction rate for misdemeanor trials at the Walnut Creek courthouse was 51 percent this year and 45 percent in 2001. Menesini’s accusations come as he and his rival, Chief Deputy DA Robert Kochly prepare for a historic, bare-knuckle fight for the district attorney seat — the first race there without an incumbent since the 1950s. And while Kochly says Menesini’s claims are election-year posturing, he acknowledges that the Walnut Creek courthouse’s misdemeanor conviction rate has dipped below 60 percent this year. ( The Recordermade a spot check of several trials that Menesini cited, and his reporting of those cases was accurate.) In addition, both candidates agree that there’s been a spike in the number of jury trials in which the judge has dismissed the case after all the testimony is complete, but before the jury can deliberate — known in the criminal justice bar as PC 1118.1′s. Judges generally grant few such defense motions — maybe one or two every few years. “That is horrific,” said Menesini, a former Contra Costa deputy DA and the current mayor of Martinez. “Clearly, for the last year and a half the wheels have been off the wagon.” According to Menesini, the central Contra Costa numbers show that the DA’s office is failing on “quality of life crimes.” And, he added, they raise questions about the DA office’s performance in the county’s higher crime areas, where, historically, conviction rates tend to be lower. “The question is,” said Menesini, “what is happening in Richmond?” As far as Menesini’s own conviction rate, the numbers are spare. Menesini, who now heads the S.F. DA’s community prosecution unit, said he has tried only 12 cases during the five years he has been a San Francisco prosecutor, and about 10 of those were felonies. Of the 12, one defendant was acquitted, one case settled, and the other defendants were convicted, according to Menesini. Kochly says that according to an analysis by his office, the conviction rate is 59 percent this year and was 77 percent in 2001. It has dipped this year because the DA is aggressively going after hard-to-prosecute domestic violence cases, Kochly asserted. Between 1999 and 2001, low-level domestic violence cases the office tried jumped from five to 25, he said. “I am not going to apologize for not backing down from that,” said Kochly, who is endorsed by retiring DA Gary Yancey. And, he added, with so few misdemeanor cases going to trial just a handful of losses can dramatically impact the conviction rate. The 1118. 1 Factor Kochly and many court watchers were stunned to learn that in the first six months of this year there had been five 1118.1 rulings — when the judge, after hearing the evidence presented to the jury, decides that it is too sparse as a matter of law to support a conviction on appeal. Essentially an acquittal, the DA cannot appeal those rulings. At first, Brian Baker, supervising prosecutor at the Walnut Creek courthouse, said that Contra Costa Superior Court Judge Bruce Van Voorhis — who is under state scrutiny for a controversial ruling and outbursts in court — handled most of those cases. Baker is a Kochly supporter. But after Baker researched the cases, he realized that two of the rulings had come from Van Voorhis and three had come from Merle Eaton, the Walnut Creek courthouse’s supervising judge. Kochly views the cases as aberrations that were bad judicial decisions, and notes that during the same period there was only one 1118.1 dismissal in the east Contra Costa branch court. Baker said that while each of the five cases were tough calls, the DA’s office vehemently disagrees with the court’s rulings. In one case, People v. Cross, 194062-6, a 35-year-old man was arrested after he bought red phosphorous from a chemical supply company that police were monitoring because they suspected the company sold ingredients used in the making of methamphetamine. According to Baker, Eaton granted the defense’s 1118.1 motion because the DA couldn’t produce a witness, the office failed to have the substance chemically analyzed, and because the judge and prosecutor disagreed about how to interpret a statute. “I totally disagree with that” ruling, Baker said. However, according to Stephanie Regular, the deputy public defender who tried the case, the DA mischarged one count of the case. The DA needed a sales receipt to prove another count, which was failure to report the purchase. The judge didn’t admit it into evidence because it could not be authenticated, and that’s why the motion was ultimately granted. The other four cases thrown out were a DUI case, a vandalism case, a petty theft, and a prescription drug case that, Baker says, might have been erroneously charged. “We don’t get very many 1118.1′s,” said Chief Assistant Public Defender Suzanne Chapot. “Anecdotally, we have heard that we have had more success there, but it is a relatively new phenomenon.” The Walnut Creek bench is decidedly conservative, Chapot and other defense attorneys said, so if the cases were dismissed on 1118.1 motions, the evidence for those cases must have been weak. In general, said San Francisco DUI attorney Timothy Gomes, “I have noticed that the cases that [the DAs] bring there aren’t very good.” Gomes, who has testified in defense of Van Voorhis, said the embattled judge has been accused of misconduct and had to face the Commission on Judicial Performance because he stands up to prosecutors. Gomes said that he often decides to go to trial in Walnut Creek because of the DA’s hard-line stance. As an example, he said, he defended “a young black kid” who was sitting in a car when his companion allegedly stole a toothbrush from a store. The DA charged Gomes’ client with burglary, and a $100,000 bail was set. Eaton later reduced the case to trespassing, Gomes said. Heavy Workload Baker said that in past years the DA’s conviction rate for central and east Contra Costa has hovered around 70 percent. The misdemeanor conviction rate was 65 percent in 1998, 75 percent in 1999 and 79 percent in 2000, he said. He said the DA handles about 12,000 misdemeanor cases in central and east Contra Costa court a year. One percent of those — roughly 120 cases — go to trial. Most misdemeanor cases are tried by the greenest attorneys of the Contra Costa district attorney’s office. In the Walnut Creek courthouse, where central Contra Costa misdemeanor trials are heard, it’s routine for judges to preside over cases where the prosecutor is stumbling through his or her first trial. “At this level, we deal with the brand new attorneys who are probably temporary hires with the DA,” said Eaton, the Walnut Creek supervising judge. “They don’t know how to handle evidence; they don’t know where to stand.” The judge also noted that the courthouse and its prosecutors try a heavy volume of cases. Eaton recalled one recent day in court when an inexperienced deputy had three misdemeanor cases set for trial — and all of them had been “worked up” by other prosecutors. The prosecutor asked the judge to dismiss one case, and she argued motions for the second. In the final case she and the defense attorney completed a trial, Eaton said. Nonetheless, the DA traditionally has a high conviction rate in that courthouse. The cases there come from suburban communities such as Walnut Creek, Orinda, Moraga, Lafayette, Danville, Alamo and San Ramon — areas known for producing law-and-order juries that give prosecutors convictions. A few tangible factors have brought down the DA’s win-loss record in low-level cases. Over the past few years, the Walnut Creek courthouse has taken on cases from Concord, Pacheco, Pleasant Hill and Martinez, areas that produce cases — such as brawls — that are harder to prove in trial. Also, the county recently took a “zero tolerance” approach to domestic violence cases, which means that the DA will take more of those cases to trial. Domestic violence cases result in fewer convictions because victims often recant, Baker and Kochly said. Chapot, the chief assistant public defender, said she had not seen any statistics, but “would be surprised if those [acquittals] were domestic violence cases.” Baker said that four of the office’s 2001 acquittals in the Walnut Creek courthouse were domestic violence cases. There were three such acquittals for the first six months of 2002. None of the cases dismissed by 1118.1 motions this year were domestic violence cases. Meanwhile, Baker predicts this year’s conviction numbers will rise. Usually, as rookie prosecutors gain more experience toward the end of the year, they win more cases, he said. Dueling Statistics Both Menesini and Kochly have attacked the method that the other used to compute figures. Baker said the DA’s computers — which track all criminal cases — give more accurate numbers than a cursory check by Menesini’s helpers. Plus, Baker said, many of the 2001 cases Menesini listed as “not guilty” verdicts were really “guilty” verdicts. “Either someone is trying to mislead you or the [Menesini] people who were looking didn’t know what they were looking at,” Kochly said. Menesini supporters manually checked the files in the clerk’s office for many cases, said Ray Sloan, a Menesini campaign worker who helped compile the statistics. Sloan said he discovered that the DA’s computer sometimes logged “guilty” when a jury had acquitted a defendant. The truth probably lies somewhere in the middle. The Recorderwent to the clerk’s office in Martinez and Walnut Creek and spot-checked roughly a dozen cases files from a list provided by Menesini’s campaign. All those case outcomes were correct. The Recorderalso learned that the DA’s computer mislabeled at least one case that had two defendants. In that case, one defendant pleaded guilty and another defendant was acquitted, but the computer listed the case as a conviction. Menesini isn’t the first DA candidate to raise questions about the office’s success in court. During the five-way primary race, civil attorney Matthew Guichard said that the DA’s office was losing misdemeanor cases in Walnut Creek. Back then, Guichard also said that prosecutors had lost many cases because of defense 1118.1 motions. Menesini, however, is the first to compile figures. To complicate matters further, the conflicting statistics have surfaced at a time when everything at the Walnut Creek courthouse seems to be steeped in politics. Of the three judges and one commissioner who preside in Walnut Creek, one judge, Van Voorhis, is under CJP scrutiny. Another jurist, Bruce Mills, is married to civil attorney Cheryl Mills, who is running for a spot on the Contra Costa bench in November. Walnut Creek’s sole commissioner, Joel Golub, is running for the same judicial post. On top of all of that, most court players have chosen sides in the DA’s race. Related chart: Contra Costa District Attorney’s Misdemeanor Scorecard

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