As Brooke Jenkins settles into her new role atop the District Attorney’s office, observers within and without are analyzing every last move, big and small, to figure out what’s coming.
There was her belated e-greeting to staff, in which she told her colleagues that she hoped they would serve San Francisco’s “visitors and citizens” — in that order, and, apparently, disregarding the many non-citizens residing here.
There was her press conference in the parking lot of a Tenderloin hotel during which Jenkins announced her intent of “holding serious drug dealers accountable.” Media summoned to this event, notably, received a press release in which Jenkins’ name was misspelled.
There was her Friday hiring of several women of color as her senior staff, and a Friday culling of 15 staffers — many of them women and people of color — via phone calls made in 15-minute intervals, during which Jenkins purportedly read from a script. Among others, she jettisoned the office’s data maven focusing on transparency, and the two attorneys overseeing the case of Napoleon Brown, Mayor London Breed’s brother.
Yet another interesting move was Jenkins’ suggestion of potentially withdrawing outstanding pleas offered in drug cases; we are told that a willingness to prioritize drug cases was a litmus test for Breed. And it was perhaps most interesting of all that, at the meeting with senior staff during which Jenkins made this proposition, she was shadowed by the mayor’s deputy chief of staff.
Even old-school DA staffers with no love for the ousted Chesa Boudin weren’t thrilled about that. Many of them never cottoned to Boudin; they perceived him as ideological and agenda-driven. But, you know, it wasn’t like he had Hugo Chávez, or Chávez’s deputy chief of staff, tailing him into meetings, writing his position papers or telling him what to do.
Current and former DA staffers who fashion themselves independent prosecutors remain frustrated.
The DA’s office is surprisingly vast, and only perhaps one-third of its staffers are line prosecutors. There are plenty of operations that will be running on an autonomic basis. But, for other matters, veteran staffers say they’re worried they’re becoming a satellite office of the mayor.
They should be. Gleaning minutiae to figure out what’s coming would appear to be unnecessary; until proven otherwise, everyone should just operate under this assumption.
As for what’s coming, it’s not pretty. And that would be true regardless of who is DA.
For people whose knowledge of how district attorneys operate begins and ends with television, that understanding probably leans heavily on “I plead the Fifth Amendment.” The Fifth Amendment is to legal TV dramas what defibrillators are to medical TV dramas.
That amendment protects against self-incrimination — and, to boot, is the most amenable to comedy. The Sixth Amendment is less funny. Certainly, no one in San Francisco is laughing.
Among other things, the Sixth Amendment guarantees defendants the right to a “speedy public trial.” And, you may have noticed, there aren’t many of those happening in San Francisco right now. Unless you waive your right to a speedy trial, you’re supposed to find yourself sitting in a courtroom within 60 days. If that doesn’t happen, your case can be dismissed. But in San Francisco, Covid-19 protocols have rendered this Constitutional right temporarily null and void.
As of last week, the San Francisco Public Defender reports there are 451 defendants whose statutory trial deadlines have lapsed, and some 149 of them are in custody. That means that a full 20 percent of the city’s jail population are people who are past date on their Constitutionally mandated right to trial.
Mission Local is additionally informed that the DA’s office has more than 5,500 outstanding cases — the highest total since this data began being tracked more than a decade ago. We are told that those cases are, on average, nearly two years old.
San Francisco’s courts have been particularly leisurely in starting up trials again, even after “full reopening,” and the trial backlog has only grown in the past year. Bafflingly, felony trials have not been given priority. The Public Defender filed a lawsuit over this slowness, but, in May, a panel of the First District Court of Appeal ruled that San Francisco’s courts did not have to lift their covid protocols. But the ruling also made it clear that this was a temporary situation.
It found that San Francisco’s courts cannot turn to the pandemic and “perpetually cite ‘exceptional circumstances’ to avoid dismissal … At some future point, should respondent court’s backlog persist while courtrooms remain dark and unused for long stretches of time, a backlog that originated with the pandemic could transform into one that persists or grows due to court administration, or the nonuse of available judicial resources.”
And here’s why this is a nightmare scenario for the DA’s office: Sooner or later, the Court of Appeal is going to call time. And, when that happens, hundreds of cases could be dismissed, en masse.
Oliver Kroll, a deputy public defender who has been working on the speedy trial litigation, likens the situation to a swelling credit card bill. The DA may be paying the minimum due, but the balance keeps growing.
“The court and the DA’s office have stored up a massive problem,” he says. “We’ve got these 450 people who are past their deadline for a speedy trial and about 150 in jail. At some point the Court of Appeal is going to decide enough is enough, restore the right to a speedy trial in San Francisco and then all these people should get their cases dismissed.”
The dismissed misdemeanor cases are done with. The DA’s office will have a chance to refile charges in the felony cases. But then all of those will have to be tried within 60 days, in a municipality with only slightly more open courtrooms than you can count on both hands.
“It can’t be done,” sums up Kroll. “You couldn’t put on enough jury trials to clear this backlog even if you wanted to.”
Now this would be a problem if the DA was Brooke Jenkins or Chesa Boudin or Pee-wee Herman. This is not a problem of Jenkins’ making. But her professed wishes and strategies would do little to unmake it. In fact, it’s rather the opposite.
While serving as the spokeswoman for the recall effort, Jenkins criticized Boudin’s overreliance on diversion of criminals. She has called for “accountability” for street drug-sellers and quality-of-life criminals in a manner that is hard not to see as a call for increased punishment and incarceration.
As we wrote earlier, it is now harder to indefinitely stuff people into jail pre-trial due to a pair of recent state Supreme Court rulings. And virtually every new defendant is now refusing to waive his or her right to a speedy trial, a move known as “pulling time.” This, in fact, has been the case for some time.
“It’s the only protection they have against indefinite confinement,” explains Kroll. Every defendant who pulls time essentially adds to the bill that will, eventually, come due for the DA.
This, again, is not a problem of Jenkins’ making. But it is one her stated desires would exacerbate. Her early moves to potentially revoke plea deals and her talk of harsher treatment for accused criminals are not inducing anyone to play ball. The accused criminals are not stupid — and, more to the point, their lawyers are not stupid: If they’re facing undesirable options of prison time or harsh plea deals, there’s ever more of an incentive to dig in and go to trial — or hope the prosecutors can’t get their act together in time, resulting in a dismissal.
Pull that time.
There is, in fact, a precedent for this. When tough-on-crime prosecutor Rod Pacheco was elected District Attorney in Riverside in 2006, his abhorrence of plea deals and insistence on draconian terms led to a vast increase in the demand for jury trials, and a crushing backlog of cases requiring out-of-county judges to join a “backlog reduction task force.” Scads of cases were dismissed out of necessity. Pacheco lost his re-election bid.
Could Riverside’s past be San Francisco’s future? Possibly. The legal process is simply not equipped to take massive amounts of cases to trial; it relies upon diversions and plea deals. Remember that bit about 5,500-plus outstanding cases? That’s a lot of time to pull: When covid protocols blessedly recede, if the Public Defender’s office opts to continue systematically pulling time — let alone potentially doing so retroactively in older cases — it would quickly implode the system.
Sooner or later the balance always comes due. The question is: Who is going to pay?