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When misdemeanor trials overload courtrooms in the Hall of Justice — and the problem spills into the civil courthouse — it’s just another day in San Francisco. The number of misdemeanor jury trials this year is estimated to have already equaled or outnumbered the total number of misdemeanor trials from all of last year, according to figures from both the district attorney and public defender’s offices. But that’s about all the two offices agree on (and they still dispute the exact figures). The DA’s head of misdemeanors, Adrian Ivancevich, blames the public defenders for creating the facilities crunch by asserting the speedy trial right in virtually all of its cases. And the public defender’s head of misdemeanors, Nicole “Niki” Solis, shoots back at the prosecutors for giving unreasonable plea offers. She also cites newly restricted eligibility criteria for pretrial diversion as a source of the problem. That leaves the judge newly in charge of the criminal division to sort out the mess. “They can point fingers at each other, which is fine because they’re both at fault,” said Supervising Judge Ksenia “Kay” Tsenin, who took over the criminal division in Department 22 last month from Assistant Presiding Judge James McBride. A report issued by the Administrative Office of the Courts in March found that non-traffic misdemeanors went to trial in San Francisco at 8.7 times the statewide rate from 2004 to 2005, the most recent period cited in the report. When the four misdemeanor courtrooms at the Hall of Justice aren’t enough, the trials flood into the felony and civil courtrooms. Presiding Judge David Ballati says that makes it particularly difficult for the court to assign trial courtrooms for those matters with statutory preferences, such as cases involving an elderly party or someone diagnosed with an illness. In a typical week, criminal trials take over three civil courtrooms, according to Ballati. For some parties in felony and civil cases, that can mean sitting around waiting for an open courtroom. Just this week, an expert witness took the day off to testify, Tsenin said, but the case didn’t go to trial. HE DID IT! NO, SHE DID IT! Ivancevich thinks the problem stems from what he perceives as the PD’s policy of asserting the right to a speedy trial in most cases — even when the defendants aren’t locked up. That jams up the court calendars, Ivancevich said, and puts pressure on the judges to push the prosecutors into reducing pretrial offers. “We resist the pressure as best we can,” Ivancevich said. Fights like this have not erupted in other Bay Area counties like Alameda and Santa Clara, according to deputy public defenders there. They say they assert speedy trial rights primarily for in-custody defendants. From the perspective of the San Francisco public defender’s office, though, clients’ rights are the top priority. “The full weight of the government is bearing down on our indigent clients — why would we engage in waiving any right?” says an unapologetic Solis. “It’s not gamesmanship.” And public defenders do waive time in some cases, she added. “If civil cases are getting pushed back as a result of misdemeanors, that’s not our issue,” Solis said. According to Solis, the increased number of misdemeanor trials is partly a result of unreasonable offers from the DA’s office that began popping up about a year and a half ago. More often, for example, prosecutors are asking defendants to agree to the condition that they can be searched at any time while on probation. But Ivancevich — who acknowledges tightening offers in pretrial negotiations “just a tad” when he took over in March 2006 — considers the offers lenient compared with other California jurisdictions. He said prosecutors propose the search condition in less than half of the misdemeanor cases. In February, District Attorney Kamala Harris implemented stricter rules of eligibility for the pretrial diversion program. Solis, of the public defender’s office, said she has identified 11 cases that have gone to trial where the defendants would have previously been able to avoid trial by taking the pretrial diversion option. While both offices agree there has been an increase in trials over the last year or so, they tally the information differently and report different figures and outcomes. The DA’s office counts 144 total misdemeanor trials (including those with private defense attorneys) from January through September, up from about 126 trials in 2006. Meanwhile, the PD’s office counts 130 misdemeanor trials in 2006. And it claims 130 trials from January through September of this year (not including those handled by private attorneys). The court, meanwhile, only reports the number of trials from January through August, and puts the number at 145. The court’s statistician — hired in January — has not and does not plan to compile the number of trials from 2006, according to Superior Court CEO Gordon Park-Li. UNTANGLING THE KNOT Tsenin presided in Department 22 four years ago and said that back then, there were enough misdemeanor courtrooms to handle trials because more cases settled. The misdemeanor supervisors from each office would meet once a week and reduce the caseload that way, according to Tsenin. In her view, the supervisors from the two offices had a better working relationship. She says she’s also noticed that defendants don’t show up to their pretrial conferences and trials as often as they did four years ago — it’s more common nowadays for defense attorneys to waive their clients’ court appearances. The judge thinks pretrial conferences were more effective when the defendants showed up. For now, Tsenin and the two offices agree on one way to bring down the misdemeanor trials: meaningful pretrial conferences with judges. They’re critical because they give everyone perspective on the value of the case — even in instances where the case ends up going to trial, Solis said. Until recently, the judges had the discretion to decide whether they would conduct pretrial conferences. These days, Tsenin said, all the misdemeanor judges are holding them. In July, Ballati took the AOC’s recommendation and brought in an experienced judge, Susan Breall, to misdemeanors to assess the situation. Ballati awaits Breall’s recommendations at the end of the year, and Tsenin said there are some options she and the other judges are considering, but she declined to disclose them. Ultimately, Ballati believes the court’s lack of resources is the root of the problem. Over the years, the mayor has added more police officers, prosecutors and public defenders, but the number of judges hasn’t kept up, he said. According to the AOC, there were 40 judicial positions in San Francisco in 1994, and now there are 50 judges. But without extra courtrooms, Tsenin said, the court wouldn’t know where to put additional judges. “We want to resolve this problem because it is painful to us,” she said. But it can’t happen until the court and the two offices sit down and discuss the situation, she said. Tsenin added, “It takes two to tango, so to speak — or three in this case.”

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