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A San Diego Superior Court commissioner last week dismissed a criminal case against a homeless man accused of camping overnight in Balboa Park after determining that the San Diego Police Department had been ordered to turn over all the potential evidence in its possession but failed to do so.
The decision to dismiss the case is a victory for the defendant, Matthew Houser, who stated in court papers that he has no income and that buying a bus ticket to attend his own hearing in Kearny Mesa constituted an economic hardship. He was facing a fine of around $500.
But the decision is also a setback for Coleen Cusack, an attorney who works pro-bono for homeless defendants, because it punted the larger question of who’s the prosecutor and who’s responsible for producing evidence in infraction cases.
One former commissioner who’s sympathetic to Cusack’s cause said courts are unlikely to rewrite the rules on their own — that responsibility should fall on the California Legislature.
Infractions are low-level offenses, and the punishments are less severe. Yet Cusack and others have been arguing for years that infractions are becoming more difficult to contest in San Diego and they point to a policy change initiated by City Attorney Mara Elliott. In late 2017, Elliott’s office began informing local law enforcement agencies that its prosecutors would no longer oversee the exchange of evidence in infraction cases — except those on appeal — to free up time and resources to investigate more serious matters.
By removing deputy city attorneys from what’s known as the discovery process, criminal justice advocates contend that San Diego has turned cops into prosecutors, even though the two are bound by different legal and ethical standards. That’s made it harder for defendants in infraction cases to get evidence, including body-worn camera footage, that might clear their name.
With mixed results, Cusack has been pleading with commissioners in the San Diego Superior Court traffic and minor offense division to force the city attorney to intervene or face sanctions.
Citing a Fourth Appellate District ruling last year, the city attorney’s office has argued that not involving prosecutors in low-level criminal cases is good for regular people because they typically represent themselves and going up against a professional attorney would be unfair. And while the city attorney’s office has the authority to prosecute infractions, it doesn’t necessarily have an obligation to do so, prosecutors argue. They choose to spend their time and energy elsewhere, citing the nature and volume of infraction cases.
Superior Court data show that non-traffic infractions have been on the rise in recent years as traffic-related infractions decline. Because hearings typically only include a defendant, a police officer and a commissioner, infractions are supposed to be quicker and simpler to resolve.
Houser’s case, however, has been anything but expeditious.
“I’ve done murder cases that have been resolved … in less time than this case,” Cusack told the court recently.
The ticket was written on the morning of Jan. 31, 2019. Arguing that she’d been getting the run-around months later, Cusack persuaded Commissioner Peter Doft to order SDPD and the city attorney’s office to release the body-worn camera footage collected by the officer who issued the infraction. It materialized within a few days.
The 17-minute video showed officers approaching Houser while he stood on the steps of a building off Pan American Way. During questioning, one officer asked Houser about his possible drug use and medical conditions and whether he’d been camping in that spot for long. Houser responded that he’d spent the past few nights there in an attempt to get out of the rain.
The video also showed one of the officers scrolling through various criminal databases on his phone, including a rundown of interactions that officers have had with Houser before. A second officer informed Houser that they’re writing a ticket because “you’ve been contacted here multiple times” and the next encounter would be cause for a misdemeanor, then a trip to jail.
After Houser said he couldn’t afford to pay a ticket, an officer advised him to seek services available to the homeless and see about getting the infraction wiped. Whether Houser would end up appearing in court or paying the fine was outside their control. “We just have to document it,” one officer said.
A moment later, Houser was sitting on the steps wondering aloud about what he was supposed to do when the rain starts again.
“If it rains,” an officer responded, “you gotta find somewhere to stay dry.”
In early 2020, Cusack asked the court for additional evidence she believed she was owed, including the names of all the officers seen in the footage and more information about where exactly the complaint that led to the infraction had come from. There was confusion on this point. An officer is heard in the video suggesting that it stemmed from the city’s Get It Done app, which is primarily portrayed as a platform for residents to report non-emergencies like potholes and graffiti. One of the officers, however, testified that he didn’t believe the complaint came from the Get It Done app, according to court documents.
Cusack had requested that the court hold the city attorney in contempt. Doft set a new hearing but retired shortly thereafter. Commissioner Nadia Keilani presided over the hearing instead and was unwilling to go as far as her predecessor. She declined to hold the city in contempt and ordered SDPD, and SDPD alone, to produce the new items Cusack was asking for. Keilani’s order had a 15-day turnaround and required that the city explain whether any of the items had been deleted or attest to whether those items even exist.
In a letter from a sergeant attached to the court liaison unit, SDPD provided a response to only a portion of the court’s request — directing Cusack to the city attorney’s office for the rest. But the city attorney’s hands-off policy on infractions meant the discovery process was essentially dead.
Two and a half years after officers ticketed Houser in Balboa Park, Cusack appeared before yet another commissioner, Peter Fagen, with a series of requests aimed at punishing the city. Fagen refused. Instead, he tossed the case from the docket without much explanation.
After the ruling was filed last week, Cusack told me that she was “disappointed in the lack of judicial spine.” Fagen had dismissed the case for failure of “the people” to comply with Keilani’s order, which was directed at SDPD, in 2020. Had he dismissed it for lack of prosecution in general, Cusack could have used that in other cases to force the city attorney’s hand.
Cusack said the outcome of the Houser case ensures that she’ll continue to go into a courtroom every time she needs evidence when challenging an infraction. She intends to appeal.
A spokesman for SDPD did not return a request for comment.
No one from the city appeared at the Houser hearings last month to defend its position or Cusack’s larger claims, but deputy city attorney Steve Hansen did file a response to Cusack. Pointing to previous court cases, he reiterated his office’s position that it’s not required to participate in infraction cases and called Cusack’s attempt to dismiss the case for not appearing in court “nonsensical.”
Doft, one of the commissioners at the center of the Houser case who’s since retired, told me that he is sympathetic to Cusack’s argument that defendants don’t give up their right to a speedy trial just because the city is unwilling to give up or oversee the production of evidence. Putting officers at the center of the process hands over responsibilities typically reserved for attorneys.
But Doft said he also understands why it’s a good idea to keep professional prosecutors out of low-level criminal cases and why the city attorney’s office would want to direct its energies toward more serious matters.
“You really don’t want every traffic trial to turn into an hour-long ordeal,” he said.
People tend to pay their fine and move on. It’s not often that someone — with an attorney — challenges an infraction. But when they do, it causes confusion for the court, he said, and the responsibility for alleviating this tension ultimately falls on state lawmakers. Courts are tasked with evaluating the facts in front of them and are hesitant to delve into bigger policy decisions.
In the meantime, though, Doft thinks there’s an easy way to resolve the problem that Cusack has identified.
“When a defense lawyer or unrepresented defendant goes through the trouble to avail themselves of the procedures to get pretrial discovery it seems to me that the city attorney might consider overseeing that process,” he said. “This whole thing could be avoided by one city attorney just making a call to the contact at the Police Department and saying, ‘Look, get me this stuff because I’m gonna do a formal response to the discovery and this is all I need.’”
Disclosure: Reporter Jesse Marx was unexpectedly called as a witness in the Houser case while remotely viewing a hearing as part of the reporting process. Cusack said she intended to include a previous article he’d written on infractions as an exhibit, and Marx was asked to confirm under oath that he wrote the article in question. He confirmed his authorship, that some of the quotes and data in the story came from public records.