When Dean Johansson ran for DA against three-term incumbent Jeff Reisig, one of his biggest complaints was one that we have reported on over the course of the last nine years – the district attorney’s office routinely overcharges criminal cases.
Some have defined overcharging as tacking on additional charges in order to induce a plea bargain. This form of overcharging, known by some as horizontal overcharging, is used strategically to induce the defendant to plead guilty on some charges in exchange for dismissal of the rest.
But this is not what is happening in Yolo County. What is happening in Yolo County is what Professor Albert Alschuler, in 1968, called “vertical” overcharging, where the prosecution charges a single offense “at a higher level than the circumstances of the case seem to warrant.”
One reason we know that what is occurring in Yolo County is the latter and not the former is we see a relatively low rate of plea bargains. Over time, the observation that I have heard from defense attorneys as to why a case (that seemed ridiculously charged on the surface and got an acquittal by the jury) went to trial is that they did not get a reasonable offer.
Data seem to back this observation up. Yolo County leads the state in per capita trial rate. Moreover, considering that Yolo County is a middle tier county in crime rate, we have a high incarceration rate but also a high acquittal rate. Forty-two percent of cases, according to Mr. Johansson, that go to trial get some form of acquittal compared to the statewide average of 16 percent.
While Mr. Johansson’s campaign, and indeed nine years of Court Watch material, have put the onus for this squarely on the back of the district attorney’s office and its charging policies, it is my contention that judges bear a good amount of responsibility here as well.
We have seen this year alone a number of trials with questionable verdicts and potentially innocent people convicted without a willingness of the judge to throw out the verdict. It is notable that, 
in both of our recently suspected wrongful convictions, we have seen the judges unwilling to order a new trial despite troubling findings post-conviction.
In sentencing Justin Gonzalez to 70 years to life, Judge Daniel P. Maguire acknowledged he was troubled that he was holding a CD with a recording that the defense did not have access to during the trial. However, he ended up ruling that, given the thoroughness on which the defense was able to discredit witness Ruby Aradoz even without this key evidence, even if the defense had had access to the recording, it would have made no difference in the outcome in the trial.
Left unanswered by the judge – how do you get to guilt without believing Ms. Aradoz’s testimony?
Meanwhile, Judge Rosenberg acknowledged, “The jury could have gone a different way, but it didn’t.” He said that 12 people found Mr. Cadenaz-Lopez guilty beyond a reasonable doubt and that he could not grant a motion for a new trial based on the insufficiency of the evidence in that case.
But one of the key jury instructions is if “you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.”
And we saw the judge seeming to acknowledge there were two reasonable conclusions about the evidence in this trial, and yet he accepts the sufficiency of that evidence for a guilty verdict.
The fact that these two judges are two of the more reasonable ones on the bench – and even they would not overturn these questionable verdicts – speaks volumes about the unwillingness of the Yolo County bench to act as a brake against prosecutorial power in this county.
In a strangely criticized ACLU article about the power of the prosecutor, a former defendant discusses a rare time when a judge – not in this county – overruled a prosecutor.
The woman recounts: “The agreement between my public defender and the prosecutor was to be a one- to three-year sentence. My time before the judge came, and the prosecutor informed him that we did not have an agreement: They were asking for a two- to six-year sentence. The emotions I felt in that chair, shackled by the waist and ankles, are difficult to put into words. I was at the complete mercy of that prosecutor. Luckily for me, the judge thought the plea agreement was unreasonable. My final plea: 14 months to four years.”
They had an agreement on a one- to three-year sentence for a first time offender. The prosecution apparently changes its mind, but gets overruled by the judge who then imposes a more reasonable 14-month sentence.
As I noted earlier this week, the woman was quite fortunate the judge was willing to do that. It is very rare that a judge is willing to overrule the DA on a plea agreement.
We had an opportunity to see Judge Rosenberg do something similar in a small case on Wednesday where there was a preliminary hearing. Justin Lopez has a good job, seemed to be a nice and personable guy, but apparently has a drinking problem that causes him to do stupid things. And one night after drinking, he vandalized two vehicles and took off running through someone’s yard in West Sacramento.
The defense did not contest that Mr. Lopez was there or did these things. They were willing to waive the preliminary hearing. But Deputy DA Rachel Raymond insisted on a live preliminary hearing. Judge Rosenberg, with a busy schedule, wanted the preliminary hearing to be quick and wanted it done in 30 minutes.
As it dragged on, he angrily called Ms. Raymond and Deputy Public Defender Lisa Lance to his bench side, was seen animated and then took the rest of the calendar before finishing the preliminary hearing.
My observation was that Ms. Raymond was trying to use the preliminary hearing as a way to dig for more substantial charges.
When the preliminary hearing was heard, the defense moved to reduce the charges to a misdemeanor.
Judge Rosenberg, in what he termed a close call, ruled for the defense. Weighing heavily in his favor were the character reference letters and the overall facts of the case. He did note that this was not a situation that could be chalked up as a one-time thing. Moreover, he saw the connection between the bar fight and the alcohol-related incident here.
He did this over the objections of the deputy district attorney who had argued this was not a first-time offense and as such she couldn’t support reducing the charge.
However, Judge Rosenberg, while concerned about the defendant’s priors, felt that the misdemeanor more closely fit the nature of the crime, but he wanted Mr. Lopez to stop drinking.
An observer who is not familiar with the court proceedings in Yolo County might be unimpressed by this. But it is a rare time when a judge overrules the prosecution on a matter even as small as this one. Even rarer is when the judge does this on a major case.
As we have pointed out before, the prosecution could not get away with overcharging if the judges did were more willing to do things like reduce charges to misdemeanors in the interest of justice.
—David M. Greenwald reporting
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So this article is advocating for charging people based on your assessment of their personality or how many friends they have?
“Justin Lopez has a good job, seemed to be a nice and personable guy”
Nope the article is doing no such thing.
Perhaps I am the only one confused about that.
Not sure what’s confusing. The point of the article was the judge using his discretion and the general unwillingness on the part of judges to do that even when they have cause to do so. The article notes: “However, Judge Rosenberg, while concerned about the defendant’s priors, felt that the misdemeanor more closely fit the nature of the crime, but he wanted Mr. Lopez to stop drinking.” But that’s not an advocacy for any particular reason other than the fact that judges do not use their discretion enough.
Isn’t “discretion” a two-way street? For example, do you support future SCOTUS judge Brett Kavanaugh’s discretion on the next case to test Roe v Wade?
What if a tough-on-crime judge uses discretion to throw the book at the criminals you believe deserve leniency?
Discretion is a two-way street, but when you observe cases over time and the judge rules for the prosecution 90 or 95 percent of the time (estimate), you start questioning their use of discretion.
That is because of the liberal legislation that prevents many crooks and drug users from being prosecuted. It has been helpful in that the courts are filled with more real thugs that judges have and easier time siding with the prosecution on.
Your comment is just a blind stab in the dark.
“blind stab in the dark.” As opposed to a “another pointless stab at Reisig”?
This is a column about judges.
To illustrate the problem with Jeff’s comment – first, we were in the courts before pre and post Prop 47 which is what he’s referring to, and the trend held prior to Prop 47. Second, none of the illustrating cases are drug cases. Judges have limited discretion given mandatory sentencing schemes, but when they have it, they nearly always favor the prosecution even when they themselves admit to it being a close call.
And btw Jim, you still haven’t come clean on the issue of shackling from earlier this week, where you were sure that a story was false based on her description of being shackled, the same thing which occurs in Yolo County – everyone in custody in Yolo is shackled in the way that you thought was false. Pointed this out to you three times in comments, you have not acknowledged your error.
David, I’ve been traveling but happy to respond.
So in this case an exceptionally violent inmate was shackled in court. It was so noteworthy that mention of it was made in the newspaper.
“Fell spent years during his first trial appearing in court without visible restraints.”
https://www.burlingtonfreepress.com/story/news/local/vermont/2015/05/15/fell-court-shackles/27333591/
The way it works in general, is that in custody defendants are shackled. However, when the case gets to trial, they are general not shackled because of the view that it would prejudice the jury. There are exceptions made for extremely dangerous defendants, I’ve seen a few in Yolo. But pre-trial, in custody defendants are all shackled. Also they are trying him in federal court which has different rules from state court. But my point was what you described as unbelievable is how it actually operates in Yolo.
Defendants in LA preliminary hearings are rarely shackled and I;ve seen plenty of those. I am willing to bet that defendants for non-violent crimes in Vermont are not shackled hands and feet to the chair as described in the article. Even money?
“The way it works in general, is that in custody defendants are shackled”
You’re welcome to come with me on Wednesday morning and see what it’s like in Yolo County. Point being: if it’s provably happening in some locations, the notion is not so ridiculous that an entire story should be dismissed out of hand.
I am too busy this week. I would love to see how them manage in-custody inmates who are ” shackled by the waist and ankles” as that slows process.
Another week then.
You know they used to transport them and march them through the old court house chained together. With the new courthouse, they have interior holding cells and so they’ve stopped that practice.
Ashley Sawyer was convicted of retail theft, a misdemeanor, in Chittenden County, Vermont in 2015. She was also charged with escaping custody, hence the shackles.
I spoke to the Vermont Judiciary in Addison County who were kind enough to look it up. Without the escaping custody charge she would not have been shackled.
So that leaves us with two interesting points…
Point 1 – you disbelieved her entire account based on that description
Point 2 – Yolo County is more backwards that Vermont when it comes to custodial arrangements
“Point 1 – you disbelieved her entire account based on that description”
And I still do. It smelled wrong and now I know it is wrong. Even LA does not shackle inmates though for production reasons more than anything else.
BTW Addison county could not find a felony conviction for her though without a birth date that is not definitive.
You just confirmed that they indeed shackled her, did you not?
They did not shackle her for any of the charges she listed. And what happened to her PD?
She didn’t claim to be shackled for any specific purpose: “The emotions I felt in that chair, shackled by the waist and ankles, are difficult to put into words. ”
now you are getting ridiculous. The story was obviously BS and who knows how how many other “details” she has forgotten to mention. I don’t have time or interest to further fact check her.
I’m not following you at all at this point.
“I’m not following you at all at this point.”
Then you are the target audience for these advocacy pieces
I am am wary of articles that contain the word seems, seem and seemed.
Note that there is no interview of the people whose cars were vandalized about their views of “the interest of justice”. Of course it’s possible that the car owners were neither “nice” nor “personable” so who cares about them.
They didn’t testify at the preliminary hearing. However, they did write letters to the judge. None of them wanted to pursue felonies against the guy. All they wanted was restitution.