City Attorney Mara Elliott speaks at a rally on Election Day. / Photo by Brittany Cruz-Fejeran

In late 2017, the San Diego city attorney’s office began reaching out to various law enforcement agencies about a policy change. To free up time and resources to investigate more serious matters, local prosecutors would no longer help with the exchange of evidence in low-level criminal matters, except for those on appeal.

That meant anyone interested in challenging an infraction would need to ask police for the information being used against them — everything from the notes of officers at the scene to body-camera footage.

In misdemeanor and felony cases, that exchange is one of the cornerstones of criminal justice. Prosecutors are required to review evidence and turn it over.

The decision to remove deputy city attorneys from this process, known as “discovery,” in less serious cases stems at least in part from an internal cost-benefit analysis. The city attorney’s office has also argued that defendants who believe they aren’t getting the evidence they need are free to petition a judge to order police to release it or dismiss the case. It’s the responsibility of the court, in other words, to protect a defendant’s rights.

But defense attorneys and advocates have been arguing for years that the city attorney’s office under Mara Elliott has made infractions more difficult to contest by removing a key layer of oversight and outsourcing the job of prosecutor to cops, who are supposed to be witnesses. In effect, it’s much harder to access evidence that could clear one’s name.

“They’ve given the police a playground without any supervision,” said Coleen Cusack, an attorney who works pro bono for homeless people.

The change in the discovery process has coincided with a change in the types of tickets issued.

In fiscal year 2014-15, the central division of the San Diego Superior Court, which includes most of the city, police filed 162,000 tickets: approximately 136,000 were traffic-related and approximately 25,600 were connected to minor criminal offenses. In fiscal year 2019-20, the same division saw 118,000 tickets: approximately 66,500 were traffic-related and approximately 51,658 were connected to minor criminal offenses.

In other words, traffic tickets dropped by half while non-traffic tickets doubled. A similar pattern appeared in much, though not all, of San Diego County.

According to the Judicial Council of California, both types of infractions accounted for 81 percent of all criminal filings across the state in 2020.

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Cusack laid out her case last week that the San Diego city attorney’s office is legally and ethically obligated to oversee discovery for her client — Doug Buckley, a man accused of driving 97 miles per hour on I-805 — and found a sympathetic ear. At the end of a hearing that lasted more than three hours, Commissioner John Blair ordered the city attorney’s office to serve the California Highway Patrol and put the agency on notice that it needs to produce evidence, including exculpatory evidence, for Cusack’s client.

So far, Cusack said she’s been unable to get basic stuff like body-camera footage and the names of the officers who were present at the time of ticketing.

At its core, Cusack’s argument is that prosecutor-less prosecutions erode one of the major safeguards that protects people — often but not exclusively homeless people — against frivolous criminal cases.

In 2017, a homeless man was convicted of sleeping in the back of his truck in a public parking lot based on the testimony of a police officer. The city attorney’s office got involved during the appeal process and found body-camera footage showing that the officer had lied about how the encounter went down. That footage was never made available to Cusack before her client was convicted on an infraction.

In a separate case last year, Cusack tried to get body-camera footage for another client, but by then a private security contractor for the Metropolitan Transit System had deleted it. After Voice of San Diego inquired, MTS announced it would seek an independent review of its body camera policies.

Voice of San Diego also reported in 2020 that San Diego police officers had written dozens of tickets under an obscure municipal code banning seditious language in public. Many of the people who received such a ticket said their only crime had been talking back. One man claimed that he’d been reciting rap lyrics out loud.

In response, a spokeswoman for Elliott said her office hadn’t been aware of the tickets but would not have followed through with prosecuting seditious language cases.

As Cusack pointed out at last week’s hearing, San Diego’s website notes that the city attorney “prosecutes misdemeanors and infractions within the San Diego city limits.” The fiscal year 2022 budget relies on similar language, meaning that some of the funding it receives is at least theoretically for infraction cases.

Deputy city attorney Steven Hansen provided clarification last week.

He told the Superior Court that, while the city attorney has the authority to prosecute infractions, it doesn’t have a duty to prosecute infractions, as both a legal and practical matter dictated by previous court cases. He argued that the rules of discovery in misdemeanor and felony cases don’t apply to infractions, which are filed in the Superior Court’s traffic and minor offense division, where the punishments are less severe.

Those hearings typically involve a commissioner, the defendant and the police officer who presents the evidence. It’s common for people not to seek their own legal counsel in that setting. Involving the city attorney’s office would only complicate things, Hansen said.

“It’s in the government’s best interest, the defendant [and] the law enforcement agencies to make infraction cases simple … and one way for the city attorney to do that is to have less involvement in these cases,” he argued.

He also pointed to a 2020 Fourth Appellate District ruling in which judges concluded that “prosecutorial flexibility” in infraction cases is a good thing. They wrote: “Those charged with infractions are not entitled to appointed counsel or a jury trial … and the penalty in even an aggravated case would rarely justify the cost of retaining counsel. ‘If a prosecutor were required to participate in infraction hearings, the unrepresented defendant would find himself in opposition to a professional adversary, hardly to a defendant’s advantage.’”

Although deputy city attorneys haven’t participated in a traffic infraction case in decades, they will process witness subpoenas as a courtesy to the court, Hansen noted. He added, however, that they shouldn’t be forced to oversee discovery generally in infraction cases. In Buckley’s case, he acknowledged, “that’s turning out perhaps to be a messy procedure, but I think that’s the way it should go.”

Although Blair concluded that the city attorney’s office is indeed the prosecutor on Buckley’s case and needs to help Cusack gather evidence from California Highway Patrol, he shot down another of her requests — that the speeding ticket be tossed out because of the non-involvement of deputy city attorneys. The case is set for trial in September.

This isn’t the first time Cusack has presented these arguments to a judge and probably won’t be the last. Another hearing is scheduled for this week, when she intends yet again to force the city attorney’s office to intervene in the discovery process for a different infraction case.

Last year, the Union-Tribune reported that Cusack had filed similar motions in at least four other cases, including one involving Matthew Houser, a homeless man accused of violating the city’s overnight camping ban after he was found sleeping behind a Balboa Park museum.

Then and now, Cusack has complained that the city attorney’s non-involvement in discovery costs her unnecessary money and time, dragging out the process for clients, and that even when a law enforcement agency does produce evidence, it’s not always complete.

She complained to the Superior Court in February 2020 that she was having trouble actually serving SDPD with an informal discovery request. Commissioner Nadia Keilani ultimately signed an order compelling SDPD — not the city attorney — to turn over the evidence Cusack believed she was owed, but not before expressing frustration over the energy being expended by the court.

Keilani asked a deputy city attorney, Jonathan Lapin, who was present, how this process served the public interest.

Lapin said he disagreed with Cusack’s version of events, but were it true, “then that would be problematic.” He also noted that the refusal to oversee discovery was not a San Diego-specific policy — it was countywide and the city was following the district attorney’s lead.

“All the police agencies outside the city are handled in the same way,” he said. “The defense counsel has to go to the police agencies — the Sheriff’s, El Cajon Police Department, La Mesa Police Department. This is how it is done.”

In more recent court papers for the Houser case, Cusack argued that SDPD still hasn’t produced all the relevant evidence. She’s planning to ask Keilani on July 20 to force the city attorney to compel discovery. Again, the city attorney takes issue with the request.

Hansen wrote that if SDPD has in fact failed to produce the evidence Cusack wants, then the Superior Court should put its focus on police — “defense counsel should seek sanctions against SDPD, not the city attorney.”

Cusack, however, has argued that because police are not prosecutors, they’re not bound by the same rules to turn over evidence. It’s like giving your automobile to another person, she offered as an analogy — the owner is still liable for what the other person does with it. “The car belongs to the prosecutor even if they let police drive it and close their eyes while they do,” she said.

Cusack has been practicing law for almost 30 years and said she hasn’t had issues getting the city attorney to honor her discovery requests under previous administrations. She’s convinced that the rollout of body cameras over the last decade has something to do with it, because the footage is consistently difficult to get, and that by allowing police agencies to pick and choose which footage to release to defense attorneys, her clients are being deprived of their civil liberties.

In the meantime, former city attorney Mike Aguirre offered a suggestion. If Elliott’s office is worried about costs, it could employ interns from local law schools, he said. He also pushed back against the argument that non-traffic infractions, in particular, don’t matter all that much — the fact that police are filing more of them in recent years suggests otherwise.

“The idea of saying, ‘Well, it’s really not that important,’ then why are you prosecuting?” he said. “If it’s important enough to prosecute, it’s important enough for you to take the responsibility for making sure evidence that would suggest innocence would be turned over.”

Lisa Halverstadt contributed to this report.

Jesse Marx is Voice of San Diego's associate editor.

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