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Twenty-four years ago, on the eve of an election, the outgoing Santa Clara County district attorney called a press conference to make a shocking announcement: One of the candidates to succeed him, Julius Finkelstein, was being suspended for leaking a confidential personnel memo to the press. Finkelstein lost the election but eventually persuaded a jury that the accusation was a bogus political ploy designed to turn voters against him. Now, three weeks before the June 6 election, the DA’s probe of a 9-year-old drug case has cast a cloud of suspicion over Chief Assistant Karyn Sinunu, one of four candidates for district attorney. The normally loquacious Sinunu has refused to talk about the investigation, other than to deny that her role is at the heart of it. And DA George Kennedy, who until recently had been a strong supporter of Sinunu, won’t go to the trouble of saying that his chief assistant isn’t implicated. The Recorder editorial board had planned to endorse Sinunu, but the investigation has made an already difficult decision even tougher. Because all the facts aren’t in on the investigation, and because the timing of it smells, we are lending our endorsement � and we use the phrase advisedly � to Sinunu. All four of the candidates � Deputy DA James Shore, Assistant DA Marc Buller, Superior Court Judge Dolores Carr and Sinunu � say the DA’s office needs change, though they disagree on how much and what kind. Carr and Shore say the office has lost its ethical compass and needs to address a win-at-all-costs mentality. Their position is buttressed by a series of articles published earlier this year by the San Jose Mercury News describing numerous cases in which prosecutors had committed misconduct while pursuing convictions. So does the Santa Clara DA’s office need substantial change? Our position is that Kennedy has done a mostly fine job running the office over a 16-year period of vast economic and cultural growth in Santa Clara County. Kennedy has, in our opinion, deftly balanced traditional prosecution priorities with newer initiatives such as a high-tech crime fighting, community prosecutions and treatment for drug offenders. While the Mercury News series raised genuine concerns, we’re not convinced that the problem of overzealous prosecution is more serious in Santa Clara County than in most other DA offices. Kennedy does occasionally seem vindictive and stubborn. But while perhaps more aggressive than some DAs, Kennedy does not strike us as a zealot. His office has staked out a middle ground on Three Strikes prosecutions, and has brought only two death penalty cases to trial in the last five years. It’s worth remembering that in 1998 one of his own deputies challenged Kennedy for reelection on the grounds he was too soft on crime. So while the office no doubt will benefit from some fresh ideas, we don’t believe a massive overhaul is in order. Deputy DA Shore has seized on the win-at-all-costs criticism. He told The Recorder’s editorial board that the DA’s mission should not be about winning, it should be about doing the right thing. But we don’t hear any concrete, specific proposals from Shore for changing the adversarial mindset, which tends to be deeply ingrained in all trial lawyers. Rather, Shore promises an independent ethics audit � which is a diagnostic tool, not a solution � and then speaks broadly about setting and reinforcing a different tone. We do think that, of the four candidates, Shore offers the most creative ideas for improving the office’s diversity, and we like his call for annual performance reviews for all the office’s attorneys. But Shore has the least management experience among the candidates. He argues that his experience as president of the county’s Government Attorneys Association has prepared him to lead, but we’re not as sanguine about union leadership translating to management savvy. As an assistant DA for the last 11 years, Marc Buller offers more management experience than Shore. He presents himself as the most accomplished trial attorney in the group, and one who is ready and willing to reach out to the community � something all four candidates seem to agree was not Kennedy’s strong suit. We found Buller vague about specific plans and goals, though. While we agree that a DA’s office can benefit from having an accomplished trial lawyer at the top, we believe that’s only one of many qualifications � and the other three candidates are hardly lacking for trial experience. On balance, we feel Buller offers neither a compelling vision for change nor the most specific plans for maintaining the office’s successes. We were impressed by Carr in many ways. We like the fact that she brings both prosecutorial and judicial experience to the table. She comes across as an effective communicator with an even temperament. She argues persuasively that supervising Santa Clara County’s family court has imbued her with the managerial and political skills necessary to run the DA’s office. She emphasizes that she is endorsed both by prosecutors such as ex-DA Leo Himmelsbach and defense attorneys like Kenneth Robinson and former Chief Assistant Public Defender David Mann. And, as the only candidate with recent work experience outside the DA’s office, she seems well-positioned to bring about positive change. We have one major sticking point with Carr. Like Shore, she is campaigning on the notion that the office needs to address the win-at-all-costs mentality � though she too is thin on specifics. (A much-ballyhooed position paper on the subject offers only platitudes such as, “Office policy and goals will be simple, understandable, and enforced evenhandedly.”) More troubling is Carr’s response to an April Mercury News article that turned up ethically questionable lawyering of her own from 15 years ago. Carr prosecuted Dr. Daniel Lucas on charges of rape, sexual assault and prowling. The charges involved three different women, all of whom had been followed out of a Palo Alto bar. One was raped, another was assaulted and a third was followed to her apartment. Lucas was charged with all three crimes, but DNA evidence eventually cleared him of the rape charge. Carr forged ahead with prosecution on the other two charges, though, because the victims � who were white � had identified Lucas � who was black � in a photo lineup. After Carr was reassigned and Sinunu took over the sexual assault unit, the case was dropped. As defense attorneys argued at the time, for the case against Lucas to have merit one would have to accept that two different African-American men were following women home from the same bar and sexually assaulting them. Lucas’ clothing and vehicle didn’t match the perpetrator’s, either. We don’t suggest that Carr should be disqualified over her handling of a single, ancient case � over the course of 15 years any prosecutor is bound to make a mistake. What’s troubling is Carr’s absolute refusal to acknowledge or take any responsibility for the error. Carr was quoted in the Mercury News article as saying, “The victims identified him. That stands for itself.” At her interview with The Recorder, Carr said she regretted how she came across in the Mercury News � but continued to insist that she had handled the case appropriately. “The system worked,” she said, even though the system jailed an innocent man for two months and continued to prosecute him for another year after the evidence pointed to his innocence. If Carr is going to lead the office to higher integrity, she should begin by acknowledging her own mistakes. Carr’s statement at our interview, that “we still had a public safety issue where we needed to see whether or not there was sufficient evidence to proceed,” is further instructive. Every decision to dismiss charges presents a public safety issue. The approach of covering one’s rear by prosecuting anybody who might have committed a high-profile crime � but probably didn’t � is likely to lead to far more wrongful convictions than some general burning desire to win at trial. This brings us to Sinunu. She is not the perfect candidate, even notwithstanding the mysterious pending investigation. While the other three candidates project self-confidence, Sinunu seems brittle and the one whose dark side you’d least want to see. This perception seems reinforced by Sinunu’s apparent falling out with her erstwhile champion, Kennedy. If you can’t manage your relationship with your mentor, it doesn’t bode well for managing the many stakeholders in the criminal justice system and their competing demands. That said, as Kennedy’s point person with the media and as chief assistant DA, Sinunu has the most experience in that crucible. She came across in our interview as fully engaged in the issues facing the office, and we were impressed with her forthrightness and candor, which stood in marked contrast to the often slippery answers of her opponents. In the role of upper management, Sinunu has already demonstrated the ability to be a change agent, particularly in the area of innocence. She has promoted reforms in police lineup procedures, and she ordered the re-investigation into the Rick Walker case � even though she acknowledges that at first, “I didn’t believe we could have an innocent man behind bars.” Eventually, she was willing to change her mind. What sets apart Sinunu most from the other candidates is her independence from law enforcement. The other three candidates criticize the DA’s recent move to open grand jury proceedings in officer-involved shootings, saying police shouldn’t be treated any differently than any other citizen accused of a crime. But they support using grand juries � albeit closed ones � for officer-involved shootings, which is tacit acknowledgement that those cases do need to be handled differently. Their position strikes us as designed more to curry favor with police than sensible public policy, and while we think it’s important for the DA to enjoy good relations with law enforcement, we think it’s more important for the DA to represents all citizens’ interests, not just those wearing a uniform. Sinunu’s opponents dismiss her position as a political calculation designed to play well with Palo Alto voters, but we’re skeptical that any DA would expect personal political gain from picking a fight with police. Rather, we see Sinunu as trying to balance the interests of law enforcement with those of all citizens. For all those reasons we endorse Sinunu for DA. As stated above, we’re concerned about the DA’s investigation into a 1997 cocaine case, which some Sinunu opponents are suggesting she may have dismissed for inappropriate reasons. At the moment, though, we don’t even have allegations of misconduct, let alone proof. We will reserve the right to reconsider our endorsement once more facts come to light.

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