#1: SJPD arrests 176 during Floyd protests; Santa Clara DA prosecutes just 6
In his exclusive investigative reporting, Mark Lisheron unearthed a story local media wouldn't touch: how county and city DA's refused to charge almost everybody arrested or cited with lawbreaking during the Floyd and associated protests throughout the year. Lisheron shows how these "jailbreak" local DA's are acting in a way that is consistent with the social justice goals of other progressive DAs, including those in Portland and Seattle.
By Mark Lisheron
In late May and early June, at the height of protesting, San Jose police arrested 176 people on a variety of felony and misdemeanor charges. As of the third week in October, the Santa Clara County District Attorney had agreed to prosecute six of those cases.
More than 100 of those arrested were referred to the district attorney’s office to consider filing formal charges for district court. How many more cases were considered by the San Jose City Attorney’s office cannot be determined because they have so far not complied with a request for that information filed on Sept. 8.
Why so many of the charges filed against those arrested were dismissed varies, from an inability to accurately identify suspects or find witnesses to corroborate law enforcement accounts of the crimes, according to officials with the district attorney’s office.
The overarching reason for so many dismissals, however, was a policy decision made by the DA’s hierarchy to err on the side of the objectives of the protests and protesters. Decisions of just this kind have been made by self-described progressive district attorneys in other protest-wracked cities around the country.
“The protests have been borne out of outrage against overt, systemic and implicit racial bias in our criminal justice system,” Assistant District Attorney Terry Harmon wrote in a June memo to District Attorney Jeff Rosen. “Criminalizing the actions of peaceful protesters demanding change in the criminal justice system simply does not further the interests of justice.”
Santa Clara’s stance on prosecution is a microcosm of what’s going on in Portland, the nation’s protest capital. As of Monday, 1,011 cases have been brought to the Multnomah County District Attorney’s Office, according to its online protest tracker. Almost 700 of those cases including felony inciting riot, burglary and unlawful use of a weapon weren’t considered. Another 138 resulted in formal charges, with another 179 cases still pending.
Police officials in San Jose and other cities bristled at what they see as an undermining of the work of their officers on the front lines of the protests and a blurring of the line between peaceful and violent protest. Not only does a wholesale dismissal of cases impact the morale of law enforcement, but it sends a message to the public that lawbreaking has no consequences, Lowell Smith, head of the Department of Criminal Justice at La Sierra University in Riverside.
“The district attorney is a very political position, but you shouldn’t be using an issue to push an agenda,” Smith said. “A DA’s job is to enforce the law, not to dictate social policy.”
The Santa Clara District Attorney’s office has been transparent about their charging data and their rationale, making the Harman memo public days after the worst of the protesting and rioting began in the aftermath of George Floyd’s death at the hands of police May 25 in Minneapolis.
While a breakdown of arrests has not been covered by the local print media in San Jose, the police department promptly provided it when asked by Opportunity Now.
How many of those cases ended up in the San Jose City Attorney’s office is unknown. Opportunity Now received confirmation that its request for that information had been received on Sept. 8. The office did not respond to a followup email Oct. 3 why it had not provided the information as required by California state law.
The Santa Clara District Attorney’s office determined that it would prosecute cases involving violent acts. In a Zoom interview Oct. 19, Dan Okonkwo, a supervising deputy district attorney, and DA’s spokesman Sean Webby, said most of these cases involved felony assault and battery to police officers, one with a deadly weapon and felony possession of a destructive device.
While there was a single case of vandalism over $400, a misdemeanor, there is no record of any arrests or prosecution relating to the wholesale looting and arson of businesses at the height of the clashes, between May 29 and June 5.
The DA decided against prosecuting another half a dozen cases, all of them misdemeanors, including disturbing the peace and failure to disperse.
Those numbers align roughly with the police department records for arrests. More than 150 of the 176 charges brought by officers during the protests were for misdemeanors, a third of those for disturbing the peace and resisting arrest.
“What we said was, if you were not peacefully protesting, we’re going to prosecute you,” Okonkwo told Opportunity Now.
Assistant district attorney teams determined that in the more than 100 cases “the vast majority involved no violence whatsoever,” Webby said. Several cases were rejected because in the chaos and sometimes combat between officers and protesters it was difficult in the followup to find witnesses on either side to confirm alleged criminal acts, he said.
“What the public sometimes doesn’t understand is the difference between probable cause to make an arrest and proof beyond a reasonable doubt to get a conviction,” Webby said.
With the overwhelming number of cases being dismissed, was it possible, Opportunity Now asked, that San Jose police officers were too aggressive in arresting and charging protesters? Webby said he thought that overall the Police Department had done a good job.
Whether department leadership was upset by all of the dismissals has been difficult to determine. Opportunity Now has been trying for weeks to interview Police Chief Eddie Garcia, who has been on paid leave recovering from a minor surgery. Garcia has announced he is stepping down as police chief at the end of the year.
Garcia said he was blindsided by a decision in early September by Acting City Attorney Nora Frimann not to charge anyone ticketed by police for violating the curfew imposed on several of the nights of protesting.
In a confidential memo that went public, Frimann cited the dismissal of curfew cases during the Rodney King riots in 1993 in Los Angeles as the precedent for her decision, according to a story by the San Jose Mercury News.
“Shouldn’t we have heard about it as we were writing the ordinance or having conversations about it with the council?” Garcia said in the story. “To have an ordinance that at the end of it doesn’t have any teeth to it serves little purpose.”
Frimann’s decision, Paul Kelly, president of the San Jose Police Officers’ Association, said, was a “monumental failure in leadership” that put the city’s police officers “in harm’s way.”
“City leaders need to figure out that not all protesters are peaceful and that some seek to cause harm and destruction,” Kelly said in a statement to the Mercury News. “Those that do must be held accountable instead of being appeased.”
Several requests by Opportunity Now through Tom Saggau, spokesman for the Officers’ Association, to interview Kelly about the DA’s decisions about prosecutions went unanswered.
Smith said he understands the pique of the chief and the rank-and-file. He has been following closely the decision-making of district attorneys in the cities across the country most under siege by protesters.
“When a DA rejects these cases what their saying to the officers is ‘We don’t respect your doing your job,’” Smith said.
Rosen’s stance on prosecuting protesters should come as no surprise to the police department or the public. Although criticized by some hard-left progressives, Rosen, who is in his third four year term, has backed such pro-offender legislation as Senate Bill 10, which ended cash bail in California; Proposition 47, which reduced to misdemeanors several categories of theft and drug possession; and Proposition 36, which excluded non-violent offenses from the state’s Three Strikes Law.
In Portland, District Attorney Mike Schmidt took office shortly before the George Floyd killing, and has made a show of dismissing most of the charges against protesters. And dismissing the condemnation of Portland Police Chief Chuck Lovell and Portland Police Association President Daryl Turner who demanded that Schmidt “step up and do your job.”
“These are just our neighbors, who are concerned about what they see as wrong with the criminal justice system,”Schmidt told the left-leaning online publication, The Intercept. “There’s no public safety value to their prosecution.”
After the Los Angeles Police Department faced withering criticism from the left for its handling of protests and rioting in late May and early June, county and city prosecutors announced they would be dismissing the majority of the cases brought to them by the department.
The shift from law enforcement to judicial and cultural reform among a growing number of progressive urban district attorneys is accelerating, according to Andrew McCarthy, a senior fellow at the conservative National Review Institute.
In a piece published months before the protests, McCarthy pinpoints the millions of dollars donated by George Soros and the networking of his Open Society Foundations to help get progessive district attorneys elected in the cities of Chicago, Denver, Houston, Orlando, St. Louis and elsewhere.
The premise of this Progessive Prosecutors Project, as McCarthy calls it, is to undermine the authority of law enforcement and to use the prosecutorial discretion of the district attorney to correct a variety of social ills created, the DAs say, by racism.
Such an abuse of executive authority, McCarthy argues, erodes the core ideal in our judicial system of equal protection under the law.
“It undermines the rule of law itself,” he said.
Mark Lisheron is the managing editor of Diggings, the magazine published by the Badger Institute, a think tank based in Milwaukee, WI.
Follow Opportunity Now on Twitter @svopportunity.