{"id":9249,"date":"2023-06-30T16:39:46","date_gmt":"2023-06-30T23:39:46","guid":{"rendered":"https:\/\/www.crimeandconsequences.blog\/?p=9249"},"modified":"2023-06-30T16:44:42","modified_gmt":"2023-06-30T23:44:42","slug":"cal-da-takes-a-dive-in-bogus-discrimination-case","status":"publish","type":"post","link":"https:\/\/www.crimeandconsequences.blog\/?p=9249","title":{"rendered":"Cal. DA Takes a Dive in Bogus Discrimination Case"},"content":{"rendered":"

Did Contra Costa County* District Attorney Diana Becton “take a dive” when her office was accused of discriminatory charging practices? Ron Matthias, retired Senior Asst. AG, has this op-ed<\/a> in the San Jose Mercury News.<\/p>\n

Thanks to the Contra Costa district attorney\u2019s puzzling refusal to adequately defend her office against bogus allegations of racially discriminatory charging practices, the county\u2019s most dangerous gang-banging murderers will avoid the punishment they deserve.<\/p>\n

Diana Becton\u2019s anemic response to both the charge of bias and a subsequent court ruling sustaining it will leave informed observers with the nagging suspicion that she\u2019s happy with the result. She could use the ruling as a convenient excuse for never again seeking appropriate charges against hardcore gang members and for dropping charges against some who already have been convicted.<\/p>\n

Under California law, a gang-inspired murderer can see his sentence \u201cenhanced\u201d by 10 additional years, and in the case of an especially egregious murder, the gang connection could support a \u201cspecial circumstance\u201d subjecting him to a no-parole life sentence or even the death penalty. In either instance, the connection must be charged and proved.<\/p><\/blockquote>\n

<\/p>\n

[End of quote]<\/p>\n

The decision at issue arose under California’s misnamed and poorly written Racial Justice Act. The header language of PC \u00a7745(a) states the laudable goal of eliminating discriminatory prosecution and sentencing. As usual, the devil is in the details. Paragraph (a)(3) sets forth this definition of a violation:<\/p>\n

(3) The defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who commit similar offenses and are similarly situated, and the evidence establishes that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant\u2019s race, ethnicity, or national origin in the county where the convictions were sought or obtained.<\/p><\/blockquote>\n

Deciding who is “similarly situated” is an enormously difficult problem. But the Legislature just uses the term without definition, effectively punting the issue to the courts. As for “more frequently,” there is a definition, sort of:<\/p>\n

(h)(1) \u201cMore frequently sought or obtained\u201d or \u201cmore frequently imposed\u201d means that statistical evidence or aggregate data demonstrate a significant difference in seeking or obtaining convictions or in imposing sentences comparing individuals who have committed similar offenses and are similarly situated, and the prosecution cannot establish race-neutral reasons for the disparity.<\/p><\/blockquote>\n

What is “significant”? Is it the old p<\/em> < .05 rule of thumb that gets more weight than it deserves<\/a>? Is it something else? Continuing with Matthias’s article:<\/p>\n

The evidence offered to support the defendants\u2019 claim, however, doesn\u2019t remotely sustain it. That the district attorney failed to point out as much to the court is beyond baffling. That she later hailed the court\u2019s devastating ruling for \u201coffsetting systemic racial disparities within the criminal justice system\u201d and vowed to \u201creview similarly charged cases to promote fair and equitable prosecution\u201d is downright alarming.<\/p>\n

Here\u2019s what the evidence actually showed: Among the 91 defendants charged from 2015-22 with gang-related murders, 48 are Black. Of those, 30 (62.5%) faced the gang-related murder special circumstance; the other 18 faced only the 10-year enhancement. Of the 43 non-Black defendants, 24 (55.8%) were charged with the special circumstance; the other 19 faced only the extra 10 years.<\/p>\n

As someone whose 35-year career as a prosecutor included considerable experience litigating complex racial discrimination issues<\/a>, I recognize that this \u201cdisparity\u201d \u2014 the difference between 62.5% and 55.8% \u2014 is legally trivial. Indeed, if, over the same seven-year period, merely two more non-Black defendants had been charged with the gang special circumstance and two fewer Black defendants had not been so charged, the \u201cdisparity\u201d wouldn\u2019t just disappear, it would be reversed. Simply put, a case or two here and there proves nothing \u2014 and certainly not that \u201csystemic racism\u201d is at work.<\/p><\/blockquote>\n

The numbers alone can\u2019t sustain the four defendants\u2019 claim for a related reason: The law required those defendants to prove (1) that the conduct alleged against them was similar to that of the 19 non-Black defendants who faced only the 10-year enhancement, and (2) that, over time and to a significant degree, Black gang-related murderers were charged with the gang-related special circumstance more frequently than \u201csimilarly situated\u201d non-Black defendants. The defendants didn\u2019t do so. They didn\u2019t even come close.<\/p>\n

The mere fact that different murderers killed for gang-related reasons doesn\u2019t establish \u201csimilarity\u201d for these purposes. Instead, determining similarity requires an individualized comparison between different defendants and their conduct that properly takes into account other variables, such as their criminal histories, the viciousness and consequences of their murders, and the quality of available evidence. Only then can anyone draw reliably fact-based conclusions about whether race improperly influenced prosecutors\u2019 charging discretion.<\/p>\n

The court should have rejected the four defendants\u2019 claim based on failure of proof. But that failure cannot explain the district attorney\u2019s own failure to put the matter to rest with evidence of her own.<\/p>\n

Although three deputy prosecutors testified that their charging is race-neutral \u2014 that is, based solely on proper considerations such as strength of evidence, the defendants\u2019 criminal records, and the severity of the murders themselves \u2014 they inexplicably failed to substantiate those critical assertions. As the trial judge observed, \u201cthere was no case-by-case evidentiary presentation about the underlying facts that prosecutors considered when deciding whether to charge or not charge the specific defendants in our historical data pool.\u201d<\/p><\/blockquote>\n

[end of quote]<\/p>\n

The answer to the question at the top of this post appears to be yes, she took a dive.<\/p>\n

* Contra Costa County is at the north end of the eastern side of San Francisco Bay. Its name means the “other coast” in Spanish, i.e., opposite SF.<\/p>\n

Diana Becton was appointed District Attorney to fill a vacancy. She was elected to a full term after a Soros-based PAC dumped over a million dollars into her campaign, an enormous amount for a DA race in a medium sized county. See this article<\/a> from 2022 in the Pleasanton Weekly.<\/p>\n","protected":false},"excerpt":{"rendered":"

Did Contra Costa County* District Attorney Diana Becton “take a dive” when her office was accused of discriminatory charging practices? Ron Matthias, retired Senior Asst. AG, has this op-ed in the San Jose Mercury News. Thanks to the Contra Costa district attorney\u2019s puzzling refusal to adequately defend her office against bogus allegations of racially discriminatory charging practices, the county\u2019s most dangerous gang-banging murderers will avoid the punishment they deserve. Diana Becton\u2019s anemic response to both the charge of bias and a subsequent court ruling sustaining it will leave informed observers with the nagging suspicion that she\u2019s happy with the result. She could use the ruling as a convenient excuse for never again seeking appropriate charges against hardcore gang members and for dropping charges against some who already have been convicted. Under California law, a gang-inspired murderer can see his sentence \u201cenhanced\u201d by 10 additional years, and in the case of an especially egregious murder, the gang connection could support a \u201cspecial circumstance\u201d subjecting him to a no-parole life sentence or even the death penalty. In either instance, the connection must be charged and proved.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[16,68],"tags":[],"class_list":["post-9249","post","type-post","status-publish","format-standard","hentry","category-equal-protection","category-prosecutors"],"yoast_head":"\nCal. 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