There are three ways that prosecutors hide and protect bad cops while systemically disadvantaging blacks: plea bargaining, diversion and absence of oversight in traffic court. A short thread on the hows and what-the-hells.
Plea bargaining. Those who support the status quo will tell you that plea bargaining advantages the criminal. It does not. 95% of cases plead guilty. Those who like to believe the system is fair think this evidences how most people arrested are guilty. It does not. 2/
All it shows is how one side with power can systemically bully those without power to continue oppressing. Sometimes, sometimes, people plead guilty because they are guilty and for no other reason. More often than not there are a lot of other reasons why people plead guilty. 3/
People plead guilty because they are in jail, cannot afford to pay even $100 to secure release on bail, and because they are told if they plead guilty they will be released from jail later that day. Who wouldn't take this option if threatened with losing job and eviction? 4/
Even had a prosecutor who, when chatting about the need for bail reform, told me, "But we get a lot more people pleading guilty when they stay in jail." Uh, yeah. You're making my point. Thanks. 5/
In order to plead guilty, a person has to waive all of their Constitutional protections. Those protections help to assure that bad policing practices are remedied and that persons who are not guilty are not convicted. Plea bargaining bypasses all of that for the expedience. 6/
Good. Cheap. Fast. You can have two, but not all three. Don't believe me? Apply it to fast food: Good and cheap = home gardening which takes time. Cheap and fast = fast food not culinary best. Good and fast? Sure but you'll pay for it! Now apply the triangle to sex! 7/ 
Returning to topic of plea bargaining: sure, it's "fast and cheap," avoiding trials and going straight to fine collection but how "good" is it? How can this process assure the public that legal protections that they depend upon have been followed? It cannot. 8/
How can an uneducated poor person, convinced they did no wrong, withstand the persuasive efforts of their own appointed attorney, explaining that if they go to trial they risk years of jail or prison but that if they plead guilty they walk out of jail today? 9/
And set aside any foolish notions of getting another attorney more committed to proving your innocence. If you are successful at convincing court to remove your first attorney, that attorney likely to give you the same recommendation as the first. 10/
This isn't to fault the attorney trying to get the best possible result within the given system. The choice & risk is that of the client so all plea offers must be conveyed. The fault is systemic where the risk of uncertainty is so much scarier than the certain consequence. 11/
And that is what plea bargaining is: trading uncertainty for certainty. People hate uncertainty. Dangling the threat of 0 - 6 years in prison and then offering zero custody plea options are too hard to pass. Unless you're rich, of course. 12/
Rich folk can hire an attorney committed to fighting through trial to contest the charges and if that attorney disappoints, fire them and hire another. The poor who get appointed counsel don't get that choice. 13/
And now a word about appointed counsel. There are often hundreds of applicants for a single public defender job. The agencies are able to hire the best and brightest. If you get a public defender, you get an attorney who knows more than most criminal defense attorneys. 14/
Unless you get one of those retired-prosecutors-turned-defense-attorneys who think their job is to help prosecutors get more plea bargained dispositions. But I digress. Public Defenders are good at their job. The problem is they have too many cases & not enough time. 15/
Imagine if you had the best dentist in the world but that dentist had to see 100 patients a day. Even the best dentist couldn't do a good job with that many patients. Courts appoint public defenders without consideration of caseload and staffing. 16/
Even worse, the court has monetary incentives to appoint counsel. IF at the end of the case, there is a finding that they could have afforded an attorney all along, then the defendant is ordered to pay a fee to repay their appointed counsel. This money goes to court, however. 17/
Because the public defender paid a flat rate for services, the fees collected to repay appointed counsel often go to reduce the flat rate paid and don't go to the defender agency so they can hire more staff. This practice also reduces cases available for retained attorneys. 18/
By pleading guilty, the bad cop shenanigans don't get litigated or remedied. Often, they don't even get revealed. In Federal Court, prosecutor not required to provide impeachment evidence until AFTER THE WITNESS TESTIFIES IN TRIAL. 19/
Impeachment evidence could include a revelation that the officer is on the Brady List: a list of officers whose past misdeeds mean they can no longer testify without being impeached for those misdeeds. Yet they remain employed as officers. 20/
95% of the cases are resolved by plea bargaining. How many bad cops have been able to keep their wrongfulness a secret because the prosecutors offered a deal instead of revealing their wrongfulness? 21/
In California state cases, prosecutors are required to provide impeachment evidence 25 days before trial but often offer deals too good to turn down that are conditioned on the defendant taking the deal at the first readiness, again avoiding disclosure of bad cop discovery. 22/
Which brings me to diversion. Like plea bargaining, most people think diversion benefits the criminal. And it does. But it disadvantages persons who are not criminals, but caught up in the net anyway. And it protects bad cops by keeping their wrongfulness hidden. 23/
Diversion is an opportunity to restore oneself to the pre-accusation state. If persons successfully complete the terms of diversion, usually there is a dismissal of the charges. If they don't successfully complete its terms, there is restoration of the criminal charges. 24/
Take, for example, the "CJI" diversion for shoplifters and other minor misdemeanors that the City Attorney in San Diego offers. Pay a nominal fee and complete volunteer hours. In exchange, the case dismissed. 25/
However, if conditions are not satisfied, for whatever the reason, then the court will find the person guilty (pursuant to the diversion agreement) and the person serves two days in custody. 26/
In both situations, however, bad conduct of the police is not revealed. There will be no trial, no discovery motion, no motion to challenge the unlawfulness of the detention, arrest or search. It's a win-win for bad cops. The criminals committing crimes also receive benefit. 27/
But what of the innocent person? Or the situation where no crime actually was committed? To defend against false charges would require motion hearings and a jury trial. And then the outcome isn't guaranteed. If they take the diversion offer, the outcome IS guaranteed. 28/
And the "offer too good to pass up," which helps to keep case processing cheap and fast does so at the expense of quality control. The "offer too good to pass up," isn't really good at all; it trades oversight of bad actors for expedience and economy. 29/
But what you'll hear from prosecutors is that they review these cases before issuance and they reject cases which reveal constitutional infirmities. And they'll claim about 5 - 7% of cases rejected were for such constitutional infirmities (aka bad policing). 30/
We never find out what happens to the police in those rejected cases. If they are referred for discipline or additional training. But they'll use this screening process to defend the cases that are issued. 31/
Of the cases they do issue, a fraction of those get dismissed by judge after a motion hearing, so this screening process doesn't screen out all the bad cases. But with the defendant's acceptance of diversion, there will be no further challenge to police action. 32/
So plea bargaining and diversion is what happens when there is counsel and the threat of an expensive jury trial. What happens when the accused is unrepresented and a hired commissioner gets to decide ones fate? What happens when prosecutors aren't watching over police? 33/
I call this world: "Traffic Court." This is where cops knowledgeable of the laws and procedures and commissioners knowledgeable of the laws and procedures and prosecutors knowledgeable of the laws and procedures take advantage of persons who are not knowledgeable of either. 34/
There are three levels of criminal offending: infractions, misdemeanors and felonies. The difference between the three is the severity of the crime and the severity of the punishment. Infractions are the least serious crimes carrying the least serious consequences. 35/
But just because these are considered the least serious offenses doesn't mean their adjudication is without impact. When an agency engages in racial profiling, infraction court continues and exacerbates that practice. 36/
Persons for whom there may not have existed any basis for the issuance of a ticket now have to take off work and spend time in court, often multiple times before the facts get adjudicated. 37/
As with misdemeanor and felony plea bargaining, the majority of traffic matters are resolved without any factual adjudication, but with a plea of guilty. This includes those who are in fact guilty as well as those who want to avoid the punitive effects of the process itself. 38/
But how many self-represented persons understood the law they were charged with violating or its defenses? Knew how to request discovery on their behalf? How many understood the factors in mitigation or the procedures that protect those with an inability to pay? 39/
The commissioner will read the law out loud but will not explain its defenses. The courtesy notice provides information on how to pay the fine but not how to request discovery. The judicial council form created for indigent persons in traffic court is not mentioned. 40/
In Misdemeanor court, a finding that the person has no ability to pay now means zero fines. In Infraction court, the finding that the person has no ability to pay results in payments or community service hours, and consequences when those payments or hours are not satisfied. 41/
So whereas a shoplifter can pay some money and do community service to get case dismissed, a person who purchased a disabled fare and, though disabled, did not have proof to submit to arresting officer when riding the trolley, cannot. 42/
Dolphins, I call 'em. Caught up in the net of zero tolerance enforcement on the trolley. When MTS officers do raids on the trolley and demand to see their fares, they also demand to see medical proof of disabilities. When people don't have the proof on hand, they get cited. 43/
So they go to court and prove to the court that they indeed were disabled and entitled to the fare. But, says the hired commissioner, "you did not show proof of your disability to the MTS officer on demand so I still find you guilty. $180 fine. How would you like to pay?" 44/
Infraction court processes traffic violations but also processes a bunch of non-traffic violations. These include "Quality of Life" crimes that penalize homeless persons for being in public space, and also Fish and Game violations for catching baby lobsters. 45/
Because of realignment in which many felonies were reduced to misdemeanors, to reduce the burden to misdemeanor court, many misdemeanors are now being charged as infractions, including underage marijuana and alcohol cases. 46/
But unlike misdemeanor court, the prosecutor is nowhere to be found in Infraction court. Police issue citations and the prosecutor does not review those citations to see if they are validly issued before the county and its collections agency starts coming for the accused. 47/
It wasn't always this way. I have been an attorney for almost three decades now. When I started practicing, student interns working for the prosecutor would staff Infraction court and get practice that way. 48/
And although the prosecutor was not in the courtroom, they still used to oversee and facilitate the discovery process when defendants or their attorneys would ask for it. But here in San Diego, that all changed around the time police started wearing body worn cameras. 49/
In 2016 Mara Elliott was elected as City Attorney in San Diego and shortly thereafter, she and her office took the position that because her office didn't appear on infractions, they did not have to provide discovery. Instead, we were told to ask the police. 50/
Police, aren't obligated under California law to provide discovery upon request and must be served a subpoena duces tecum. That's four documents that have to be prepared and served on the agency and then a motion that has to be filed in court to get the documents released. 51/
Then, instead of providing the evidence they provide information sheets on how to get the evidence. Further delay & obfuscation. And the police charge 5x more for this infraction discovery than what it would cost to get the same discovery in felony or misdemeanor case. 52/
Just because these crimes are considered less serious doesn't mean that they are not entitled to the same rules of discovery. Just because these crimes are considered less serious doesn't mean that City Attorney and Police should get away with failing to provide discovery. 53/
Despite claims to the contrary, it is the City Attorneys obligation in San Diego, pursuant to the San Diego City Charter, to prosecute infractions, to include city ordinances. 54/
Penal Code 19.7 and Penal Code 1054.1, when read in conjunction, require the City Attorney to provide discovery to infraction litigants. While this obligation is triggered upon request, there is also instance that they are required to disclose even without request. 55/
Most people will never see inside of Misdemeanor or Felony court but 80% of crimes charged are charged as Infractions. These charges impact the community considerably. And in San Diego, there is zero oversight to police action. 56/
As indicated before 95% plead guilty but in infraction cases, the gap between filing and disposition is wider than most. Compare misdemeanor and infraction stats. The dark line = filings and the light line = dispositions. The wider the gap, the more unsubstantiated filings. 57/
Remember when I discussed prosecutor screening of cases for constitutional infirmity? Yeah, that doesn't happen in infractions. Police file directly with court & only screening is by the court clerk if the required boxes haven't all been completed correctly on the citation. 58/
If the case proceeds to trial and the officer does not want their misdeeds to come to light, the officer either doesn't appear at all or, after appearing, says they no longer have any independent recollection of the offense and it gets dismissed. 59/
Even in cases in which the officer is proven to have lied to the court, the case is dismissed but there is no further action taken by the hired commissioners to report that officer and their perjury to the prosecutor for inclusion on the Brady List. 60/
There is no oversight to the dishonest practice of MTS officers: they send any warm body to court to answer up as ready. If accused is not there, a civil assessment is imposed and if accused is there, they may decide to instead plead guilty because the officer is there. 61/
If, instead, the person goes ahead with the trial, at that point the officer reveals they were subpoenaed in error and were not the officer who issued the citation. It gets dismissed at that point, but after this (security) officer misrepresented "ready" to the court. 63/
IN this fashion, MTS can bump up the conviction rate for its filings and use that to argue that those filings were justified. They should not be allowed to do this and would not if the prosecutor did its job of providing oversight. 64/
100% of the body worn camera evidence I have requested in felonies and misdemeanors, I have received pretrial. Conversely, the majority of the requests I've made in infraction cases on behalf of clients have not resulted in this evidence being produced. 65/
This results in absurdities such as the following. These are the proceedings in two infractions I am defending pro bono for two houseless persons. Six months later and numerous documents prepared and court filings and still no body worn cameras produced. 66/
We wanted the police to wear body worn cameras because it would help reveal the bad cops. But that only works if they share the body worn cameras with the public, especially those members of the public who they are accusing of a crime. 67/
Police DO use the body worn cameras as evidence to help them out. On any given day in traffic court you'll see some police with laptops and others without. Those with the laptops have body worn cameras that they will use against the accused. But what about the others? 68/
When I ask police before court if there was a body worn camera (and there was) and if they reviewed it prior to their testimony (they did) and why they didn't bring it with them to court: the answer is the same - because it didn't help THEIR case. THEY didn't need it. 69/
Camera evidence that exists but doesn't help the police are precisely the videos that defendant should be provided the evidence and the videos the hired commissioners should be watching. The prosecutor is obligated to provide this evidence to the defendant without request. 70/
Brady obligations of the prosecutor include the duty to disclose (1) impeachment evidence, (2) favorable evidence in the absence of a request by the accused, and (3) evidence in the possession of persons or organizations (e.g., the police). 71/ theiacp.org/sites/default/…
Pretrial: Officer claims body worn camera evidence too dark to be of any value.
Trial: Officer commits perjury and accused is convicted.
Appeal: Body Worn Camera evidence reveals cop perjured himself at trial. See for yourself: 72/
voiceofsandiego.org/topics/public-…
Trial: Officer commits perjury and accused is convicted.
Appeal: Body Worn Camera evidence reveals cop perjured himself at trial. See for yourself: 72/
voiceofsandiego.org/topics/public-…
This officer was referred to the District Attorneys office for inclusion on The Brady List, a list of cops who can be impeached with their bad actions. A secret list. Bad cops the prosecutor knows about. Yet won't tell us about. 73/
We have no idea who is on the Brady List or why. Big secret. Those they accuse of crimes get their names released and cameras record their court appearances but bad police get the protection of privacy. 74/
What that means to the public is that when they call the police and the police arrive, they don't know if the bad cops, the good cops, or a combination of the two are the ones responding. How could they? 75/
And so there might have been a crime that was committed but because a bad cop on the Brady List was involved in the investigation, the prosecution of the guilty person is compromised as a result. Bad cops frustrate good policing efforts. 76/
There are only two groups of people who want bad cops: bad cops and the unions who protect them. But the unions could not protect them to the extent that they do without lawmakers on both sides of the political aisle bending over backwards to enable their protection. 77/
For police unions, opposing the wearing of body worn cameras and opposing the release of camera evidence has been its primary objective in recent years and when they support elected officials they expect those officials will quash efforts to make camera evidence public. 78/
San Diego's own elected City Attorney has approved contract provisions - over 10 different times - that help bad cops keep their bad acts private and support police unions at the expense of San Diegans and a fair justice system. #MaraGottaGo
But the single best way that the San Diego City Attorney protects bad cops is by staying out of traffic court and letting the cops do whatever they wish without oversight or control. Of course, the City Attorney still pockets their share of the revenue from convictions, too. 80/
Why did the officer feel empowered to frame my homeless client for a crime that never happened when he was the one to push the button to start recording the interaction? Because he never thought anyone would ever see the body worn camera evidence outside the department. 81/
For the SAME reasons the police unions and the elected officials who support the police unions oppose the release of body worn cameras (to protect the bad cops), this is why we need them to be publicly released to all who are accused of a crime. 82/
Infraction court is where racial prejudice continues. With more members of racial minorities stopped by police, and more police enforcement actions in minority neighborhoods, more racial minorities find themselves needing to defend themselves in infraction court. 83/
But where is the prosecutor? Where is the oversight? Why are officers permitted to issue unsubstantiated tickets without consequence? Why are the court, prosecutor and police profiting from such a practice? Who is protecting San Diegans from them? 84/
So in summary: the practice of plea bargaining and diversion act to hide the actions of bad cops, and the failure of the prosecutor to participate in infraction court proceedings abdicates their responsibility to provide oversight of bad cops, further protecting them. 85/
What can YOU do to help expose bad cops? Demand that your elected officials support providing every person accused of a crime with the body worn camera evidence pre-trial. And don't reelect the ones who refuse to do so. 86/ end
Do you have a case in Infraction (Traffic) Court in California and cannot afford the fine? Complete this form and deliver it to the court. courts.ca.gov/documents/tr32…
