A Closer Look at the Sac Bee’s Article on DA Jeff Reisig

Perhaps in another publication, the writer would have immediately realized the absurdity of it all, comparing Jeff Reisig to famed gangster-hunter Eliot Ness.

“Since his election in 2006, and even before, the brawny, spike-haired prosecutor has established himself as the Eliot Ness of Yolo County. Just as the fabled “Untouchable” of 1920s Chicago focused on the bootlegging gangsters of his era, Reisig has directed his piercing gaze at the estimated 1,600 street gang members who he says are terrorizing portions of his jurisdiction between the Sacramento River and the hills below Lake Berryessa.”

The comparison is ironic is more recent historical accounts have shown that Eliot Ness’s role in the downfall of famed gangster Al Capone has been the subject of historic revisionism.  Hollywood simply created a hero where there was none.  Ness was in reality a minor figure who played a small role at best in hunting Capone, in fact, by most accurate accounts, Capone had no idea who Ness even was.  Capone was undone not by a single hunter, but by the work of federal investigators who were able to get him on tax evasion. 

The second irony is that while Yolo County might have some gangs, by most accounts, the gangs in Yolo are nothing compared to the violent street gangs of the larger cities.  Al Capone was the most notorious gangster alive, but Yolo County most years has less than ten homicides.  In fact, Reisig might point to the shooting deaths of two law enforcement officers, but it is unclear how much gang violence had to do with either of them.  The comparison to an overblown historical figure actually makes a good deal of sense given perhaps the relaties that Yolo County is not exactly Chicago of the 1930s either.

We have spoken much on these pages about the shooting Luis Gutierrez.  Naturally Mr. Reisig does not see a conflict with his office “conducting what he described as a “parallel” review of the shooting, independently interviewing witnesses at the same time Woodland police detectives and sheriff’s internal affairs investigators conducted their own probes.” 

And neither do we.  We simply do not take his account, which appears flawed from our vantage as the final word on the matter.  Nor do we believe that the investigation conducted by the Attorney’s General office that merely examined the original review for abuse of discretion, a very high standard to overturn on.

Former Supreme Court Justice Cruz Reynoso has called the report “less than impressive.”

The Bee quotes him saying,

“I can’t help but conclude this is a killing that did not have to take place.  The question is, why did it? That’s basically what our commission will be investigating.”

(Full disclosure: my wife is one of the members on that commission).

Naturally, Reisig expressed skepticism about the commission.

“He said his report on the shooting has been reviewed by the state attorney general, and both the FBI and the U.S. Department of Justice civil rights division are investigating. He joked that the only entity not to weigh in on the shooting is NATO.”

His response is telling:

“The loss of life is tragic, and I’m sad for everybody involved.  But we had a job to do and we did it, as openly and transparently as possible. We invited everyone in the system to come look at it.

“But I never felt like there was a reason for there to be controversy regarding what we’re doing.  We had a mandated duty to review the shooting. We made some findings, and they were reviewed by the attorney general and upheld. I don’t see the controversy.

“What I see is politics.”

First, the call has been for an independent investigation and what the Attorney General did was not an independent investigation.  It was an abuse of discretion review.  I have explained this standard before, but I think it bears repeating.

Abuse of discretion is a legal term that means, “A failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom.”

This is generally used in appellant law. “Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal.”

But all that really occurs here is a review of the investigation itself to determine if the ruling is reasonable based on the facts presented.

Thus in reviewing for abuse of discretion, there would be a problem if “the rendering of a decision by a court… is so unreasonable in light of the facts of the case or is such an unreasonable deviation from legal precedent that it must be reversed.”

Anything that falls short of that, ends up where this one did.

So here is the AG report’s conclusion:

“We reviewed your decision under an abuse of discretion standard. After a complete review of all available information, we have concluded that your decision was not unreasonable and thus did not constitute an abuse of discretion.”

What they did not do that people have called upon an independent body to do is conduct their own investigation, interview the officers and witnesses themselves, review the evidence, and produce their own unique report.  That is what I am calling for and what the justice community is calling for.

Second, Mr. Reisig shows he simply does not get it when he says, he never felt there was a reason for controversy.  The reason for controversy is that he is simply not trusted in some quarters.  So until a truly independent investigation comes forward, there will be those who do not find validity in his findings.  I share that view in part because of my lack of trust of the District Attorney and in part because of what I have expressed in other writings as shortcomings in the report.

Third, Mr. Reisig says he sees politics.  I say, what politics?  He’s up for election and there is no one even challenging him.  In what way is this politics?  Can’t it be that people simply do not agree with your conclusions?

The article is supposed to be on gangs, but there is little critical analysis of Reisig’s gang policies.  There is no discussion about the civil liberty implications of the injunction.  There is no discussion about the profiling of individuals in Woodland or West Sacramento.

They quote Reisig defending his injunction, without talking to the lawyers on the other side of the case who might present a counterview.

Reisig defended the injunction, which is slated for a hearing in April to determine whether it should become permanent. He said it might give pause to some good boys before they join a club that could get them in trouble.

The prosecutor took issue with the suggestion that the court order penalizes somebody for who they are rather than what they do. Enforcement only comes into play, Reisig said, if a named target violates a judge’s order.

“If someone’s a gang member, it’s not like they’re going to be arrested for being in a gang,” he said. “Nobody’s being arrested for having a barbecue in their front yard or for hanging out with their next-door neighbor. The key is the judge’s order, and if somebody’s found to be in violation of the judge’s order, they still have the right to go to trial.”

The last section of the article reads like the testimonial portion of a campaign ad.  They quote Reisig’s friends Supervisor Matt Rexroad, Sheriff Ed Prieto, Rod Beede (a defense attorney who supported Reisig in 2006), and Superior Court Judge David Rosenberg.  Each of them offer praise of Reisig.

Perhaps the most surprising statements come from former Public Defender Barry Melton and Supervisor Jim Provenza.

Mr. Melton has often been accused, despite his job as public defender, of being accepting of the DA’s policies.  But in this article, he offers the most critical criticism.

Yolo County Supervisor Matt Rexroad said the gang problem “absolutely, positively shapes every aspect of law enforcement” in the jurisdiction. But former Public Defender Barry Melton believes that law enforcement, including his friend Reisig, has seriously overhyped it.

Melton said he thinks the estimate of Yolo’s 1,600 gang members is way overblown.

“I seriously doubt the number’s that big,” Melton said. “How do you make the determination? If I live on the block and my neighbor’s a gang member and I go have a beer with him, am I affiliated? The thought is that everything they do is in furtherance of what the gang is doing, and of course that is not true.”

The other surprise in the other direction is the praise of Supervisor Jim Provenza:

“I rank him very high,” said Davis-area Supervisor Jim Provenza, an attorney and registered Sacramento lobbyist who represents the Los Angeles County District Attorney’s Office. “One of the good things about him, he’s flexible. He’s willing to listen and grow with the job.”

That gets us back to the gang policies, and there simply is little discussion of the gang policies, whether they are necessary, whether they have worked, whether they have unduly violated the rights of minorities in this county, we can go down the line. 

Another statement that is buried at the end should be shocking and appalling. 

“The number of felony trials in Yolo County has risen from 30 or 40 a year to 120 a year since Reisig took over.”

Let us put this into terms.  The number of felony trials in Yolo County has risen from 30 or 40 a year to 120 a year since Reisig took over.  Reisig took over in 2006.  Is there a change in the number of felonies in Yolo County since that time?  Not really.  The crime rate has been relatively stable, certainly it did not increase 300 to 400 percent in the last three years.  So either Reisig is going to argue that his predecessor undertried cases, or he is overprosecuting cases.  Given our lack of space and resources, that seems surprising.  Yet, the author never questions Reisig about that statement or why it is the case.

Also Reisig downplays the lawsuits.

“Along the way, Reisig has angered some people inside his office, including one former investigator who accused him of trying to politicize the gang injunction. Another sued him on allegations that the district attorney disclosed confidential materials on a disciplinary matter to another agency.  Reisig responded that when he took office, he shook up “a good-old-boy network” that included “some people who resented the accountability I was demanding of people on the job.””

Which is why the county has had to complete a settlement with both of the former employees.

For six months, the Vanguard has been studying the gang problems of Yolo County and in the coming weeks, we will be releasing some investigative work that sheds some light on it.  And we will have a major announcement early in January about a new project that we are beginning.

—David M. Greenwald reporting