The Morning Report
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Part three of a five-part series.
Deputy District Attorney Richard Monroy told his boss, Bonnie Dumanis, that prosecuting San Diego Police Officer Frank White in an off-duty road-rage incident was a dead-on-arrival proposition since juries seldom convict cops.
Within months of those comments, which were made in front of colleagues, Monroy was transferred from his job as head of the prestigious Special Operations unit to a low-profile non-management position as liaison to the narcotics task force, doing mostly search warrants, according to several friends and colleagues of Monroy who are familiar with the situation. Since then he has been reassigned again, this time as ethics advisor of the office.
After Dumanis did decide to go ahead with the prosecution, White was acquitted after two days of deliberation.
Monroy declined to comment. But some colleagues saw his demotion as pure retribution.
“She sacked a supervisor because he disagreed with her on a major case,” said a senior deputy district attorney, who spoke on condition of anonymity for fear of retaliation by Dumanis. “People not supportive of her decisions keep their periscopes down.”
Another veteran said: “There’s becoming a feeling in our office that she is petty and that she will react in ways like that if she’s crossed. There’s definitely that perception that is sort of growing.”
Dumanis has stepped into the vacuum created by the retirement of her mentor and ally, Sheriff Bill Kolender, and become the county’s most powerful politician. And she has occasionally wielded that power in questionable ways by handing out political retribution and making charging decisions that later proved disastrous.
Many of her own deputies are disappointed that Dumanis has made bad decisions like the White case, and say she appears to be focused too much on the political aspects of those choices.
“I think she’s made a lot of mistakes by going forward with prosecutions that any experienced pros knew we could not win,” said a veteran deputy district attorney who supported Dumanis.
“You’ve got to see the nuances, and if you listen to the people you give those cases to, if they say I just don’t think we’re going to be able to prove this beyond a reasonable doubt, you say OK, we’re going to punt on this, move forward and dismiss the case,” the veteran said. “I think there’s a lack of experience in those types of cases, and a political blind spot in some cases.”
Some of the Blunders
Dumanis said she does not regret charging White, who shot and wounded an 8-year-old boy during a road rage incident with the child’s intoxicated mother. The mother was also shot during the March 2008 confrontation. White had been charged with a felony count of grossly negligent discharge of a firearm and a misdemeanor count of exhibiting a firearm.
“The jury is the conscience of the community. In my view they’re very thoughtful, and they kind of determine what level of behavior they’re willing to accept,” Dumanis said. “And he was off duty so it’s a little bit different than a police officer but generally speaking, people — and we knew this going in — usually support a police officer.
“But yet they did spend two [days] thinking about it, talking about it, which I think is really a good thing because it shows they really considered things. And they made a decision. We may not agree with it, but I respect the jury’s verdict.”
Another one of Dumanis’ biggest charging blunders: The prosecution of Chula Vista Councilman Steve Castaneda, who was acquitted of most perjury charges stemming from a corruption investigation that went nowhere. The jury deadlocked on a few other perjury counts.
The botched prosecution came after Dumanis had announced her new public corruption unit to much fanfare.
After that, the unit fizzled; its key prosecutor, Patrick O’Toole, was transferred. Dumanis said she needed his expertise elsewhere in the office — and there have been no high-profile corruption cases since.
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The District Attorney’s Office prosecuted Chula Vista City Councilman Steve Castaneda on perjury charges but none had the weight to secure a conviction. Photo: Sam Hodgson |
The original case against Castaneda had developed from rumors that he had used his position to get free or reduced rent on a condo from a Chula Vista developer. Officials found no evidence of wrongdoing.
But Castaneda was charged with perjury because during that investigation, he told a grand jury he never intended to buy one of the condos in question. O’Toole said that was a lie, because Castaneda had inquired about the sale price of the condos. That amounted to intent to buy, the prosecutor said.
Castaneda maintained that his charges were politically motivated; Dumanis said he was prosecuted because he lied to the grand jury.
Dumanis said her only regret in that case was not debunking conspiracy theories that she went after Castaneda at the bidding of her friend and his political enemy, Chula Vista Mayor Cheryl Cox. Cox is married to county Supervisor Greg Cox.
“We went through the grand jury, went to trial and the jury spoke,” Dumanis said. “It hung on part of it and we decided not to retry. I should have probably answered all of those strange allegations. I never endorsed Cheryl Cox, I was not in any conspiracy with her. In fact I don’t think I ever even talked to her about it.”
Former Deputy District Attorney Dave Stutz, once a friend and supporter of Dumanis, said he quit because she blocked his efforts to investigate and prosecute corruption.
“Her political unit was a joke,” he said. “The Castaneda case probably cost a million dollars and never got off the ground. She has done nothing in seven years in office in that area.”
Stutz said he became disillusioned soon after Dumanis took office in 2003 and appointed him to do corruption prosecutions. He cited as the last straw a case he tried to build against a county supervisor whom he suspected had illegally received campaign contributions from an Indian tribe.
In a Feb. 3, 2004 grand jury proposal obtained by voiceofsandiego.org, Stutz outlines a case of potential campaign finance violations by the supervisor and asks permission to proceed.
“She stopped that investigation,” Stutz said. “Before I called or interviewed anybody I had to let her know ahead of time. I’ve been doing this for half a century, and I’m not going to do that.” Stutz resigned after that, about 14 months after Dumanis took office.
Dumanis denied Stutz’s claims, saying this of her old friend: “Dave Stutz is a big critic, but he’s been a critic of everyone. He was a big supporter … I don’t know” what happened to sour him, she said.
Dumanis said her public integrity unit is still doing meaningful work.
“We handle a lot of cases nobody even knows about. We’ve prosecuted a lot of schools, police officers. We’ve filed about 17 cases since 2007. Not just public officials. Some schools are under investigation right now. Lots of cases the press doesn’t seem to get real excited about.”
Dumanis said the unit hasn’t snagged any prominent politicians because her public stand against corruption has been a deterrent.
“I hoped that I don’t get big names. The idea is not to drum up business for public corruption,” she said. “The idea is to send a message we won’t tolerate public corruption and I think the fact that we haven’t had big names speaks volumes.”
A Freed Widow and a Shunned Judge
There was the ill-fated case against Cynthia Sommer, the woman who was convicted in January 2007 of fatally poisoning her Marine husband with arsenic. During the trial prosecutors pointed out that Sommer used her husband’s life insurance money to pay for breast augmentation surgery.
Sommer was freed after more than two years in prison when evidence of botched crime lab results came to light. An examination of tissue samples that had not been tested showed there was no arsenic in Todd Sommer’s body. Charges were dropped.
“We didn’t do anything wrong,” Dumanis said at the time, noting that as soon as the mistake came to light, she moved quickly to dismiss the charges. She said the case is still under investigation.
Dumanis’ lawyers generally agree that the office did nothing wrong in the Sommer case and the mistake was made by the lab — and the jury. “We still don’t know if she was innocent or not,” one prosecutor said.
More recently, in a rare move seen as a political power play, Dumanis, has ordered her office to boycott the judge who presided over the Sommer case.
Since September, prosecutors have blocked cases from going to prominent Superior Court Judge John Einhorn by using a peremptory challenge.
In doing so they do not have to prove a judge’s bias, or even say why they believe a judge is biased, but they have to allege bias under oath.
Dumanis declined to say why she took that step.
She issued this statement: “This decision was made after careful consideration and thoughtful review over an extended period of time. It is a judgment call made in the best interests of our clients, the People of the State of California, and the cases we are prosecuting.”
The rare move is designed to neuter the bench, some respected defense lawyers — including Sommer’s — said.
“I think it’s a dangerous attempt to intimidate the court and to manipulate the court,” said attorney Allen Bloom. “That’s hubris and chest beating. The point is, I’m the DA and I can shut down a court if I need to.”
Michael Crowley, immediate past president of the San Diego Criminal Defense Bar, agreed. “It is an intimidation tactic to the other judges. Don’t screw up or otherwise we’re going to pull this card on you and you get sent over to civil.” An assignment to civil cases is considered less glamorous and less desirable by some judges.
The Accused Teacher, Big-Time Political Flap and Medical Pot
A prosecution in 2004 against Thad Jesperson, a popular and respected teacher accused of molesting eight second and third grade girls, conjured memories of the Dale Akiki debacle. Like Akiki, the case against Jefferson was built solely on accusations by children, made after they’d been questioned at length by investigators. There was no other corroborating evidence.
Under then-District Attorney Ed Miller, Akiki was charged in 1991 with 35 felony counts of sexual and physical abuse of children at Faith Chapel in Spring Valley, where he volunteered with his wife in the preschool. A jury took just seven hours to acquit him after a seven-month trial in 1993. He later won a $2 million lawsuit against his accusers.
Also like Akiki, Jesperson spent time behind bars. After three separate trials, Jesperson was finally convicted and sentenced to 15 years to life. He spent four years in prison before being released in January 2008 when an appeals court threw out the convictions and granted a new trial on grounds of juror misconduct and mistakes by his attorney and the trial judge.
Dumanis decided not to take the matter further.
Defense attorneys have said the prosecution is an example of poor judgment by Dumanis , who continued to pursue multiple trials in a case like the bogus one against Akiki which relied on the testimony of children alone. Jesperson’s defense was primarily that the students’ inconsistent stories were the result of suggestibility, in which interviewers’ questions are leading and influence responses.
And even some supporters say Dumanis took the easy way out of a case in which the 60-year-old host of a Rancho Santa Fe fundraiser for congressional candidate Francine Busby got into a melee with a sheriff’s deputy investigating a noise complaint. When the party host, Shari Barman, refused to give her date of birth she was doused with pepper spray during a physical confrontation with the deputy. Barman and another woman were arrested. Barman alleged police brutality.
Ever the diplomat, Dumanis took the middle road in announcing her intent to close the case without filing charges: “It is hard to imagine respected, responsible adults, or a decorated Marine with five years of service and an unblemished record of service in the Sheriff’s Department, ending up in such a situation. Cooler heads could have intervened to defuse, not escalate the situation.”
In her report, Dumanis threw a bone to law enforcement by declaring that both women were guilty of interfering with an officer. But she added that she would not be able to prove the case to a jury because of all the conflicting witness accounts.
In a recent interview, Dumanis said she personally reviewed all reports, interviews and audiotapes, and ultimately made her decision based on the quality of evidence. She is comfortable with her stance, she said.
The boss tends to play it safe, said some deputies. That’s not necessarily a criticism.
“She’s very politically astute and she takes the easy way out on many issues like the Busby fiasco,” a deputy said. “Her mode seems to be what would be politically the best. She takes political considerations in her decisions.”
Since Dumanis took office, she has been very visible in what she calls a battle not against medical marijuana patients, but against those who profit from the illegal sale and distribution of marijuana.
Dumanis, flanked by other law enforcement chiefs, announced raids of medical marijuana dispensaries in July, the culmination of an 18-month investigation in which undercover detectives posed as patients and patronized the dispensaries. Fifteen people were arrested.
One of those prosecutions imploded Dec. 1 when a jury acquitted Jovan Jackson of five charges of possessing and selling marijuana illegally. The San Diego Union-Tribune reported that jurors acquitted Jackson in large part because of confusion over the state’s medical marijuana law.
The Demoted Deputy
Dumanis said she is aware of the perception that Monroy, the former head of the prestigious Special Operations unit, is being punished, but that’s not the case. She declined to say whether Monroy disagreed with her on the White case, though the sources said he did, and the result was a transfer.
“We transfer people regularly in this office,” Dumanis said. “The transfers are for the needs of the office. I’m aware that some people have thought it was a punishment, but it wasn’t a punishment in any way. I brought Richard in and asked where he would like to go.”
Dumanis she does not quash dissenting views.
“I encourage people to speak up and to have rowdy discussions just like any family does,” Dumanis said. “That’s the only way I know how to do this job is to have people be able to speak the truth, to be able to argue amongst each other about what they see in a case, what issues they see, and I value that, and that’s something I would always want to see happen because that’s the only way that I can avoid pitfalls.”
Coming Wednesday | The Savvy Incumbent with Victories to Show for It: State and county leaders have lauded Dumanis as an innovator with the statewide political clout to turn her ideas into reality.
Please contact Kelly Thornton directly at kellythornton7407@yahoo.com.