The office of District Attorney Brooke Jenkins is continuing a pattern of seeking felony charges in cases where there’s no chance of succeeding—and in the latest example, a Superior Court judge essentially ordered that a case be dismissed before it went to the jury. That’s very unusual.
The case involves a suspect who stole some coats—and, allegedly, a three-pack of men’s underwear—from Macy’s in December. The suspect, who was fighting a fentanyl addiction, went into the department store and tried to walk out with four jackets, collectively worth $899.
He was stopped right after he left the store and admitted to a security guard that he intended to sell the jackets to a “male on Leavenworth and McAllister streets” who would pay him $100 each, according to an affidavit Macy’s security submitted.
He was cooperative with security and with the cops, and was never involved in any violence. He was unarmed.
Under state law, nonviolent theft of property worth less than $950 is a misdemeanor. The suspect, who I am not naming because of his medical issues, would have pled guilty to misdemeanor theft, his public defender, Zach Waterman, told me. “There was no dispute about the facts,” Waterman said.
But there’s a twist: The DA’s Office said that the suspect had stolen a three-pack of Ralph Lauren men’s underwear—which sold for $54.50, making the total value $953.50. That’s a whopping three dollars and fifty sense over the limit. Jenkins charged it as a felony, meaning the suspect could have spent up the three years in state prison. For $3.50.
There’s more: When the cops searched him and did an inventory, they never found that three-pack. They did find one pair of underpants, which would not part of a pack. Macy’s security found no evidence that a pack had been broken and one pair removed, Waterman said. In fact, a photo of the evidence suggests only one, individually wrapped pair, was in the property Macy’s seized.
At worst, that pair of underpants might have been worth $18—leaving the total well below the threshold for a felony charge.
“The fact that he was overcharged was as clear at is possibly could be,” Waterman said.
And yet, Jenkins office insisted that the suspect go to trial on felony charges. He was locked up in county jail, where (of course) he didn’t get the treatment he needed; that’s not what the Sheriff’s Office does. And the county jail today, with all the people the mayor and the DA are locking up, is a total mess.
“It’s a scary place,” Waterman said. When he first saw his client in court, he said, “he looked like a zombie.”
Meanwhile, not only did his client add to jail overcrowding (instead of going into treatment); the case took up time and space in the overcrowded courts. More than 100 people were summoned as jurors; the prosecution and defense picked a panel. Judge Brian Farrell presided over a trial—during which there was no dispute over the facts of the case, just over the value of a pair of underpants.
After both sides rested, Waterman made a motion for a directed verdict—essentially asking the judge to say that no jury could ever find his client guilty of a felony. That’s standard practice at criminal trials, and it hardly ever works.
But in this case, it did: Farrell agreed that the felony charge was out of bounds, and ordered the prosecution and defense to find a solution. The 28-year-old defendant accepted what Waterman had offered long before trial: A plea to misdemeanor theft. The jurors went home. The suspect was sentenced to the 180 days he had already served in jail awaiting trial.
The whole thing was a colossal waste of the time and resources of the DA, the public defender, 100 jurors, and the court.
“You get cases like this that are simple and obvious,” Waterman said. And yet: Jenkins demands trials.
Nobody who works in the DA’s Office is willing to say so in public, but what’s going on here is pretty clear, longtime court observers have told me.
Jenkins doesn’t want to take the risk that she might cut a plea deal and release someone who goes on to commit another crime. That would be bad for her political future (and there’s no doubt she’s looking at higher office). She’d rather go to trial, and blame the jury if she loses the case.
The problem is that prosecutors have a legal and ethical responsibility not to take to trial a case where they don’t believe they can prove the charges beyond a reasonable doubt..
The conviction rate for the DA’s office is below most other offices; the latest numbers show convictions at about 40 percent. The statewide average is about 50 to 60 percent.
Many of those convictions are cases like this one—the defendant winds up guilty of a misdemeanor that their attorney was ready to offer as a plea before trial.
San Francisco has a pretty liberal jury pool. But insiders tell Jenkins is forcing to trial cases that should have been dismissed, diverted, or settled with a plea bargain. Like this one.
The impacts are both human and systemic. People with drug problems and mental health issues are stuck in a county jail that has no capacity to help them. Courts are clogged with cases, leading to backlogs—which means people who don’t get released pending trial are stuck in jail for much longer terms. The felony caseload has been so heavy that the public defender is having to refuse cases.
All of this is very, very expensive at a time when the city has a huge budget crisis.
It’s also entirely political: Jenkins wants to look tough on crime. But district attorneys are supposed to answer to a higher standard than just politics.
From the California Bar Association:
A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. Rule 5-110 is intended to achieve those results.
Rule 5-110 includes:
The prosecutor in a criminal case shall:
(A) Not institute or continue to prosecute a charge that the prosecutor knows is not supported by probable cause
When a judge who is not known for siding with the defense in criminal cases grants an unusual motion in a case like this, it’s a least a matter of concern.
