The Morning Report
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Criminal justice issues like police misconduct, body camera footage, gang prosecutions and statewide reforms, have (minus a stadium) been at the heart of some of San Diego’s biggest recent policy discussions.
Without much guidance from the mayor, District Attorney Bonnie Dumanis has had the first and final say over many big decisions.
Dumanis decided when and how to release footage of disputed instances in which police killed at least two unarmed men. Dumanis tried a first-of-its-kind gang prosecution, and Dumanis eventually backed down on the strategy.
Now Dumanis wants to have the final say once more by hand-picking her successor. She’s endorsed Chief Deputy DA Summer Stephan as her replacement, a decision the County Board of Supervisors will make this week.
Stephan is running for district attorney in 2018 whether she is appointed to fill the remainder of Dumanis’ term or not.
A 27-year veteran of the DA’s office, Stephan has had many highs – she’s been showered with awards for her work to combat human trafficking – and some lows, including the failed prosecution of the high-profile Stephanie Crowe murder case.
In an interview last week, Stephan crept closely to the line of saying she’d do things differently than Dumanis but never crossed it outright.
She seemed to side with the judge in the explosive guilt-by-association gang prosecution case over her own colleagues, and said she was open to revisiting policies guiding body camera footage and the state gang database.
And though law enforcement officers across the state have ripped Prop. 47, which converted some crimes from felonies to misdemeanors, Stephan said prosecutors should try harder before giving up on the law.
This interview has been edited for length and clarity.
Even as it gets more and more attention in San Diego, I think human trafficking is still a fuzzy concept to many people in San Diego and something that they think happens in a world that’s not at all part of their reality. What does trafficking really look like in San Diego?
Trafficking doesn’t look the way people think. That’s the biggest obstacle we have in human trafficking, is that the stereotypes that people have about it makes victims not recognize that they’re victims. …
In San Diego, the sex trafficking is mostly based in prostitution. The way it would look is on its face, it may look just like prostitution – a willing person wanting to sell their body for money. In reality, we’re learning that a lot more, there’s someone usually pulling the strings, and it’s based in exploitation of vulnerable people. That’s the bottom line – whether it’s sex- or labor-based. …
Labor trafficking, believe it or not, is even harder to detect because it’s like on a continuum: Do I have a really bad boss who’s not paying me, or am I a labor trafficking victim? So the confusion there in terms of the public detecting it, as well as the victims knowing that they’re victims is even more complex.
San Diego is not unique in terms of having a large backlog of untested rape kits. But one thing that has struck me as unique is that SDPD has actually said that’s by design, and that they intentionally don’t test certain kits. City Attorney Mara Elliott has said that all rape kits should be tested. Do you think all rape kits should be tested?
I think what San Diego’s doing is they’re really prioritizing.
One of the reasons that we have great crime-solving abilities is our DNA – that our lab with its capacity currently jumps on unsolved cases. We’ve seen, for example, whenever we’ve had a rapist in Balboa Park, everybody drops everything. Or the Chelsea King case, the lab mobilizes to get results overnight so that you can put the rapist, murderer away. That’s where their resources are devoted. So I think that their position is based on prioritizing based on the resources. Where they are going to be able to solve a crime or prevent a crime.
In an ideal world – and I’ve already tapped my folks to look for grants, or other resources or ways that we can test all rape kits – that would be the ideal situation. Now, there are certain rape kits that I can see a potential negative in testing them and putting them in the CODIS system. (Editor’s note: CODIS is a national DNA database operated by the FBI that allows labs to share information and compare DNA.) The whole point of testing rape kits is to put it in the system. … But there are certain cases where, if put in CODIS without thought, could create a suspect that shouldn’t be a suspect. For example, those rare cases where it is a known person, not an unknown perpetrator, and as the information develops it turns out that under the law, it doesn’t meet the definition of a sexual assault. We want to also be careful because you could be labeling somebody and putting them in a suspect databank if they’re not.
But in most cases, the ideal situation would be to test the rape kits. And here’s where my mind goes: The cases that I’ve been involved with where, sadly, especially in the non-stranger rape situation, where the person is using drugs or alcohol and it’s a rape of an unconscious or intoxicated, that first case may not meet the beyond-a-reasonable-doubt standard. But the person may turn out to be a repeat predator. So if you’re able to put it in the databank, it’s surely going to help the next victim.
One case that I’ve covered closely over the last couple years involves Aaron Harvey and the prosecution of gang members from southeastern San Diego. The DA’s office tried to blaze a new trail using a novel approach to Section 182.5 of the penal code. It caused a big uproar, ultimately the case got tossed out. Do you agree with the decision to use the law in that way and would you ever attempt to use it again to prosecute gang members?
I wasn’t part of that case’s decision-making, and I wouldn’t want to – without knowing everything – second-guess. But what I will say is that I have a lot of respect for the judge who heard the cases. And certainly his analysis, which was drawn where he interpreted the law in a narrower fashion than our prosecutors did when they charged the case. I certainly think that I see the sense in his analysis, and the dangers that can fall from expanding liability theories, because you could be sweeping up in that net more people than you should. Obviously, gangs and gang violence, it terrorizes communities. …
But my experience over 27 years is that whenever you’re using those sorts of expanded theories, you really have to be very thoughtful and very, very careful. I like how the judge has defined it. The judge didn’t say 182.5 is no good, it wasn’t ruled unconstitutional. But he did narrow its focus so it’s a lot more similar to the normal conspiracy theories that we use and have used successfully, and with good, just results. So I wouldn’t be prepared at this point to say that if there’s a law on the books that I’ll never use it. But I am prepared to say that many lessons have been learned from the case that was charged, and that it would be more of a rare occasion. I would have to be convinced that existing theories that have been tested over a long time aren’t sufficient to meet the threat. I would also follow the judge’s narrower view of that law.
Last year, an audit of the CalGang system confirmed what many members of the community who I’ve talked to were concerned about all along – and that’s that the system is rife with errors and that there are several instances of people’s privacy rights being violated and abuse of the system. Do you support the effort to reform the system that Assemblywoman Shirley Weber is working on right now?
I’ve looked at the audit, and I think it’s a huge concern. I think when you label people and you put them in a databank, you better be very careful and follow the criteria and purge accurately and make sure your audits are really tight. … Assemblywoman Weber thought there was something wrong even before the audit came out. And her approach is right that we need to look at the CalGang system.
There are two bills going through right now and one of them more directly addresses the audit problems. Dr. Weber is working with us – she’s very open to making sure her bill actually matches what the problems are. Because she’s said, being a thoughtful legislator, that (the database) is a proper crime-fighting tool but it has to be done right. No tool works if the people using it don’t use it correctly. If you put garbage in, you’re going to get garbage out.
So you support the other reform bill?
The other reform bill looks like it makes the right changes. … What usually happens with bills is they end up conforming and getting it where there’s one bill in front of the governor that is the right bill.
I do have to say, though, that I was pleased to know that San Diego’s audit did not reveal a lot of problems. … So I am happy with how San Diego looks. But I think whenever something is flawed, it reflects poorly on everyone and it makes the community lose trust.
You mentioned the San Diego audit and the numbers that San Diego’s gang database have shown. It may not have shown errors such as a 2-year-old being included in the database, but it has shown that blacks and Latinos are wildly overrepresented in terms of their share of the population. And according to the numbers, there essentially aren’t any white gang members from San Diego. I would guess that there are white gang members who exist in San Diego. Does that strike you as a problem? Do you have any concerns about who’s represented in the database?
There are definitely white gang members. We just prosecuted a murder case with biker gangs. And in human trafficking, there are white gang members. This is why information is very important. … I think it’s very important that we are aware of statistics and make sure that statistics that show that they’re not matching the population – they should raise a lot of questions. And we should be doing some firm follow-up.
I haven’t experienced some of the things that black people have experienced, but I take responsibility to study the issues and who really talk to people who have experienced those things. While in law enforcement, we often say racism and prejudice is something of the past. The reality is our history of racism has continued. You just have to read (The Atlantic’s “The Case for Reparations”) to know that the racist laws have pushed black people into certain concentrated communities because they weren’t even – well past the anti-slavery laws they weren’t able to get a loan to buy a house. My father-in-law returned from the Army and got his G.I. bill and went to Berkeley, but his fellow black officers didn’t get anything.
How do you get out of poverty? You have education, and you buy property. If you’re not able to do either, then it pushes more and more people into a life of criminality, of gangs. It’s like a cycle.
I think when I see statistics like that, I would need more information, but it at least gives me pause to ask the hard questions about that data.
A lot of law enforcement officials, including people in the DA’s office, have been pretty vocal about some of the recent statewide reforms, particularly Prop. 47, and said that it’s responsible for increasing crime. Do you believe that’s true? What are your views on how Prop. 47 has been implemented and how it’s working?
It’s very important that we apply the will of the people. I always quote Martin Luther King, who said, ‘Laws can’t make another man love me but laws will protect me from the heartless.” So I’m a big believer in being a servant of the law and following the law. Prop. 47 was needed for many reasons. … But I do think that it also needs some fixes and some amendments.
It came about because when you have a felony record, it’s a very hard thing. It prevents you from getting a job and from eventually becoming a productive members of society. … So making more categories of crimes misdemeanors is a good idea – nonviolent, non-serious crimes.
Where I think it has flaws is that it has no limit. So for some people who want to take advantage of Prop. 47, they can really prey on our community. We have one person who has committed 24 thefts – car burglaries – in a short period of time. He knows that there are no escalated consequences. You’re forever a misdemeanant, whether you’re victimizing these moms who are trying to get to work, their car is burglarized, their stuff is taken, that’s a high cost. I would have liked to see some things that allowed the carrot and the stick, that allowed the benefits – which are to let more people have misdemeanors instead of putting a felony jacket on them – but also for those people who want didn’t just make one mistake or two or three, but who really want to take advantage of the system and don’t want to take advantage of drug treatment of programs of rehabilitation, I think it allows those people to really take advantage of our community.
My view, though, is that we in law enforcement are really not doing everything to address those concerns. I would like to see us do more before we judge the proposition.
For example, I’ve asked for our office to have a data analyst so that we can flag in that Prop. 47 population, those people who are taking advantage of the system. The court can then do something by stacking some of the sentences, even though they’re misdemeanor sentences. But right now we’re treating all Prop. 47 populations almost the same. They’re just revolving through. I think we need a more thoughtful analysis so that the ones that we can help, we help, and the ones who just want to take advantage, we also hold them accountable.
Do you think that ICE officers should remain in San Diego County jails?
Right now, my understanding is that they’re doing their job and the sheriff is doing (his) job, so that the sheriff is not expending efforts on things that are outside the scope of their assignment – which is to protect victims and to serve the community. Just like my job would be, if there’s a victim – documented, undocumented, it matters nothing to me – if they’re a victim on our soil, they’re a victim. The same with a perpetrator, documented, undocumented, doesn’t affect me as a state prosecutor, I’m going to address the harm they did. In the jails, I understand that they’re not taking time away from the sheriff, that they’re doing their job and allowing the sheriffs to do their job, there’s a separation of their duties.
We have some bills going through, if they change that to where that’s not allowed, then of course the sheriff will have to follow that law. I think it’s really a sheriff’s question. I understand from the sheriff that it’s working well and that it just allows him to do his function, and they do their function. I’m not prepared to say it’s a good idea or a bad idea.
Under what circumstances do you think police body camera footage or other video footage of disputed instances should be released to the public?
Whenever possible, following due process. I’m all for transparency, and I don’t mean that in the cheesy transparency way, I just mean more evidence and more information is better, so long as we don’t trample on due process.
If the camera footage is related to a criminal case, then it’s important that the criminal case be reviewed for charges. I think the current policy seems to balance those interests.
My understanding is that the policy said footage wouldn’t be released until after an investigation took place, but when we saw that tested for the first time with the El Cajon shooting, that got to some extent thrown out the window.
The general policy is to attempt in due process to do the investigation first but an expeditious, not one that goes on years and years, where officer-involved shootings are prioritized and they’re investigated thoroughly but promptly. … But the policy also says that where it may affect community safety or other issues that they can make a thoughtful exception. So I think that’s probably why an exception was made in the El Cajon case. I can see other instances where, policy needs to be followed but there needs to be common sense also.
I really like the fact that more and more of our law enforcement are going to have body-worn cameras. It’s not going to ever tell the whole story, we know that from years of bank robberies and it doesn’t show you everything. …
I do think that we need to really be responsible in law enforcement, but also the media really needs to be responsible. Because accurate information is really important, and that the public get as complete a picture as we can give them. And that takes time – a little time.
The safety standard is one that has always confused me because it seems as if we’re setting a standard in which we’re almost encouraging people to riot or act unsafely if their goal is to see the footage. It seems like there have been a few instances in which footage could have been released publicly and wasn’t, and only when people got violent did they say, “OK, nevermind, we’ll release it.”
You know, you bring up a good point. I hadn’t thought of that. So, it’s something to consider whether the policy is actually encouraging that kind of rioting. It’s something to think about. I think it’s a work in progress.
I’ve just been an independent thinker all my life, and one of the things that I’ve really enjoyed is somehow the ability to take criticism well. So, I think it’s a work in progress. This whole area of body-worn cameras, we’re all learning together. I think we should have periodic reviews to make sure: Is this policy working? Is it accomplishing the purpose of having better investigations, also having the community be better informed? Of making sure we weed out whatever bad apples we have, as early as possible, so that we can have the most effective and honest law enforcement we can have?
So I’d be willing to keep reviewing it. But for now, it seems to strike a good balance between disclosure and due process.