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Sunday, April 26, 2009 | On Sept. 2, 2007, police pulled over B.D. Howard after, they say, he turned off before a checkpoint and failed field sobriety tests. A police officer wrote a report recommending that DUI charges be filed against Howard.
But sometime between the time when the case was logged in on the Police Department’s computers and the time when it should have been logged into the computer system at the City Attorney’s Office, his case disappeared.
It was never reviewed by prosecutors to see whether charges should have been filed. It never will be because the one-year statute of limitations has since expired.
Less than three months after that arrest, Howard was again arrested for DUI. The City Attorney’s Office filed charges against Howard, who once worked for Council President Ben Hueso, but later dropped the charges.
The fact that Howard was arrested twice in such a short time but never convicted, along with his political connections, prompted an internal investigation into the handling of those cases.
In a recent interview, City Attorney Jan Goldsmith said the investigation turned up no evidence of outside influence, politics or favoritism in the cases. He said the second case was dropped after prosecutors determined they couldn’t prove charges beyond a reasonable doubt.
But the disappearance of the first DUI file raises concerns about a case-handling process that is vulnerable to human error and in which staffers missed the chance to correct their mistakes before it was too late. The investigation shows how Howard’s DUI case, and at least one other, fell through the cracks, with people arrested never being charged — or at least never having their cases reviewed by prosecutors — because of what’s been described as pure mishap.
An assistant city attorney said the fact that it happened to someone with political connections is a bizarre coincidence.
Howard worked as a council representative in Hueso’s office from January 2006 to August 2007, but was no longer working for Hueso at the time of his arrest. He has said he plans to run for Hueso’s seat next year, when Hueso will run for state Assembly.
Goldsmith said the investigation doesn’t guarantee there was no outside influence, noting that it’s difficult to prove a negative.
However, he said the inquiry — conducted by an investigator outside the criminal division — turned up no evidence. He said the investigation was “sufficiently thorough” that the investigator would have found evidence if there was any.
“There was no incentive on our investigator’s or on my part to avoid finding it because we were not involved,” said Goldsmith, who took over the office in December from Mike Aguirre.
But Goldsmith added that “we have evidence of some other things,” including “inattention” to the clues that could have revealed the missing case and “processes that can be tightened up a lot.”
David Greenberg, the new head of the criminal division, said he’s planning to implement changes such as improving the training prosecutors receive. But there won’t be a comprehensive review of how many other cases went missing. And the proposed changes may not affect some parts of the process implicated in the disappearance of Howard’s file.
A Process That Went Awry
Here’s how the process typically works when police believe prosecutors should bring charges for a crime: A police detective types a report up and puts together a package or case for prosecutors. The case must be approved by a police supervisor.
For traffic cases, the police detective then makes three copies of each report. Those go to the front counter of a division at the Police Department. One copy goes to the Department of Motor Vehicles. One remains with the Police Department. The third copy goes either to the City Attorney’s Office, which handles misdemeanor cases, or the District Attorney’s Office, which handles felonies.
The police officer at the front counter logs every case into the Police Department’s computer system. Files going to the City Attorney’s Office are put in sealed envelopes and a bin where, every weekday morning, members of the Retired Senior Volunteer Patrol pick up the envelopes and take them to the City Attorney’s Office. (In rare cases, the detective brings over the cases personally.)
At the City Attorney’s Office, the cases are left on a desk where members of the case issuance unit grab the files and log them into the city attorney’s system.
Police records show Howard’s case was logged into the Police Department’s system two days after his arrest. That log indicated Howard’s case was destined for the City Attorney’s Office.
But Howard’s case never made it into the city attorney’s system. Goldsmith said the investigator checked the computer backup to see if Howard’s file had been entered and erased. It hadn’t.
The investigator also checked into the batch of other DUI cases that, according to the police log, came over with Howard’s. One of them didn’t make it into the system, said Goldsmith, who declined to name the person.
“There is no evidence that the lack of review of that arrest report was deliberate or that anyone interfered with the process,” Goldsmith said.
Missed Clues
The City Attorney’s Office did have other chances to catch the error. For instance, the office received Howard’s blood alcohol results from his arrest.
But that apparently didn’t raise a red flag about his missing file because the office receives all lab results from San Diego police cases, including many that never go to the City Attorney’s Office for valid reasons. Some of those cases are handled by the district attorney. Other times a police supervisor doesn’t sign off on an arrest report, so the case is never sent over.
Because the City Attorney’s Office regularly receives lab results for which it doesn’t have a corresponding file, Greenberg said staffers only check the incoming results to match them up with a file that’s already been created. They don’t check the results that don’t match with files to see if they went to the district attorney, were never submitted by police, or are missing.
Another missed opportunity occurred after Howard’s second DUI arrest in November 2007. Howard was charged with driving without a valid license because his license had been suspended from his arrest less than three months earlier. As part of the file on the second arrest, prosecutors received Howard’s DMV history, which included his first arrest by the San Diego police.
But the DMV records didn’t prompt a search for an arrest file. Goldsmith said several people in the office assumed the DMV’s records were mistaken because the case didn’t show up in the city attorney’s computers.
Goldsmith said the decision to dismiss the second DUI was made in “good faith.” He would not elaborate on the reasons, but said they were well-documented and the decision was reviewed by a supervisor. Goldsmith said Aguirre and Chris Morris, then head of the criminal division, weren’t involved.
Howard later sued the city and state over the arrest, saying law enforcement conspired to manipulate witness statements in a way leading to his arrest.
Interviewed in March, Howard said he never contacted Hueso or anyone in the office about his arrests. He said he didn’t know why the City Attorney’s Office never charged him for the first arrest and never saw a need to contact the office.
‘Things Will Never Be Perfect’
Greenberg said changes in the office should address some of the issues brought up by Howard’s case. He said training for attorneys will stress the importance of things like checking to see why a driver’s license was suspended.
The office is also replacing its case management computer system with one used by the District Attorney’s Office. Goldsmith said he expects cases to be entered more quickly with the new system. It will also allow prosecutors in the City Attorney’s Office to check if a file is with the District Attorney’s Office if a case raises red flags, like if it can’t be found on the city attorney’s computers, Goldsmith said.
He said cases with a perceived conflict of interest, like this one, are being vetted by the state attorney general or the district attorney.
Other parts of the process won’t be altered. The office won’t change how it handles lab results by checking on all lab tests that don’t match with a case in the City Attorney’s Office to see if they went to the district attorney, were never sent over by police or got lost.
Greenberg said the costs of such a move would outweigh the benefits since the division receives about 7,000 lab results a year and would have to hire an extra staffer to check on all of them. He said that doesn’t make sense given the rarity of situations like Howard’s.
“The case with B.D. Howard, it’s really an aberration,” Greenberg said. “When you’re dealing with high volume, things will never be perfect. It’s not very often that things just fall through the cracks.”
Of course, there’s no data on how common missing cases are. This mistake only came to light because Howard is running for public office. Still, Greenberg said he’s confident that there will be few such errors going forward because of improved training. And he seriously doubts such mistakes were common before, saying law enforcement or victims would have noticed.
“If it was a problem, you’d be hearing about this a lot more,” he said.
Goldsmith said he doesn’t know if such mishaps were rare, noting that it was outside the scope of the investigation. Yet he’s not planning to look into how many other cases have been lost along the way.
Goldsmith said that’s impractical given that the office handles about 40,000 criminal cases a year, all misdemeanors. He said even looking at a sample of cases over a week or two would sap resources from the important mission of prosecuting the cases it has now.
“We are also handling a volume of cases coming in now, and that is a full-time job,” he said.
The police chief’s special counsel, Paul Cooper, said he’d like to put in place a checklist in which the city attorney’s staff would verify that the cases were delivered and provide a written confirmation to the police volunteers who shuttle over the cases.
“That’s the link in the process I would like to see tightened,” Cooper said.
Cooper said he had no plans for other changes but hasn’t seen the investigation, which Goldsmith refused to release to voiceofsandiego.org, saying it was a personnel investigation.
Cases may be sent electronically in the future, said Greenberg, who noted that the sheriff’s office is experimenting with such records. But they’re not in place in the city and won’t be for years, he said.
Greenberg said it’s impossible to eliminate error, but he doesn’t think mistakes like these happen very often.
“I’ve been doing this for 23 years and I’ve worked everywhere in the county,” Greenberg said. “Things like this do not happen very often. Do they happen? Yes. Very often? No. Most people do not get that lucky.”
Please contact Rani Gupta directly at rani.gupta@voiceofsandiego.org with your thoughts, ideas, personal stories or tips. Or set the tone of the debate with a letter to the editor.