San Luis Obispo County prosecutors for the second straight year didn’t get a single conviction in nearly two of five criminal cases that went to trial, court records show.
The number of both high- and low-profile trial losses by the San Luis Obispo County District Attorney’s Office in recent years has become a campaign issue in the race for DA, in which Dan Dow is seeking a second term in the June primary.
His opponent, Judge Mike Cummins, has claimed — without providing evidence — that the DA’s Office under Dow pursues some criminal cases it shouldn’t, and that Dow himself “doesn’t have the skills and experience to properly evaluate cases” and instruct his deputies.
Cummins, a former Stanislaus County judge, is challenging Dow in part because of those losses, as well as Dow’s decision to not investigate a series of inmate deaths at the County Jail, which remains under investigation by the FBI.
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To verify Cummins’ claim, The Tribune reviewed six years worth of court records, finding that the DA’s Office has lost more cases at trial during the past two years than it had in the previous four individual years.
According to records, jurors didn’t hand down a single felony or misdemeanor conviction in 18 of the 47 criminal cases and sexually violent predator commitment petitions that went to trial in 2017, meaning prosecutors won a conviction roughly 62 percent of the time.
Local cases tried by state prosecutors are not included in that figure.
Eight local defense attorneys who spoke to the The Tribune for this story did so on condition of anonymity, they said, to avoid prejudicing prosecutors against their current and future clients. But they separately said the DA’s recent trial performance is partly the result of an increasing unwillingness to meaningfully negotiate plea agreements, as well as by the recent addition of a new early dispositions court that aims to resolve cases early in the process.
As a result, local cases in which both parties are unwilling to budge are making their way before jurors in expensive and time-consuming trials that are increasingly ending in favor of the defendant.
In response, Dow said his office does not track conviction rates, and he defended his prosecutors’ trial work, saying that certain cases such as sexual assault and domestic violence cases are especially difficult to prove beyond a reasonable doubt. But he said county residents want their District Attorney’s Office to aggressively pursue such cases.
He added that each case that went before a jury first must have passed scrutiny of a judge, who ruled in a preliminary hearing that enough probable cause existed to take the case to trial.
“Those are by nature, because they couldn’t resolve early, the more difficult cases,” Dow said. “Honestly, we’ve had some really hard cases with some outstanding results.”
Dow was elected District Attorney in June 2014 following the retirement of longtime DA Gerry Shea. In Shea’s last two years in office, his prosecutors secured at least one conviction in 80 and 77 percent of their trials, respectively. In 2012, the office secured convictions in 20 of its 25 trials, and 30 of 39 trials in 2013.
In all of 2014, the trial conviction rate dipped to 70 percent, or 31 convictions in 44 trials. In Dow’s first full year in office in 2015, prosecutors had a good year, winning convictions in 83 percent of their 43 trials.
In the past two years, however, prosecutors have failed to convict in 38 to 39 percent of trial cases. In 2016, the DA’s Office took 44 cases to trial, convicting the defendant in just 27 of those. Last year, the office similarly took 47 cases to trial, earning a conviction in 29 cases.
In calculating trial conviction rates, The Tribune is counting every trial that resulted in at least one conviction, regardless of the number of charges a defendant faced.
For example, a jury acquitted Los Osos resident Tanner Mengore last March of two felony charges related to a car crash on Highway 1 that killed two of his passengers, and hung on a third charge. Jurors ultimately convicted Mengore of misdemeanor vehicular manslaughter, the least serious charge possible.
Though Mengore was initially facing up to 12 years in prison, he served about three months in County Jail for the lesser charge. The Tribune is still counting Mengore’s trial as one of the DA’s successful cases.
In other words, conviction rates don’t tell the whole story.
One elder abuse case in 2016, for example, was dismissed at the start of trial because the alleged victim could not be found to testify. A child molestation case the same year resulted in a mistrial, only to be successfully prosecuted with additional charges months later.
Still, many of the prosecution’s losses in recent years have been black and white.
In November, the office lost its longest running white-collar crime case in recent history when a jury failed to reach a verdict in the fraud case against two former North County hard-money lenders. The DA’s Office spent seven years trying the case.
Last year, the DA’s Office took a second try at a North County rape case against a former U.S. Marine after a jury acquitted the Paso Robles man of raping an unconscious woman and deadlocked on a second charge. The second trial also resulted in a hung jury. Prosecutors have indicated they may retry the case a third time.
In May 2016, a jury found two California Department of Corrections and Rehabilitation officers not guilty of manslaughter and assault for their roles in the death of a well-known North County vineyard manager during a 2014 bar fight in San Miguel.
In November 2016, a jury found a Nipomo man not guilty of murder in the 2009 death of his wife, which the defense argued was a suicide. Following a six-year investigation and three weeks of trial testimony, a jury acquitted James Victor Lypps after the foreperson said the DA’s Office’s case was weak.
Though The Tribune examined conviction rates for criminal cases that went to trial, the vast majority of cases end in a conviction before they ever make it that far. According to data provided by Dow, the DA’s Office filed 12,224 felony and misdemeanor cases in 2017, and just 47 — less than once-half of one percent — went to trial.
Asked by The Tribune their thoughts on prosecution trial losses, members of the defense community separately noted that in recent years, prosecutors in certain cases have been less willing to give in to pre-trial plea agreement negotiations, which are recognized by the American Bar Association as a practical and vital component of the criminal justice system.
Failure to resolve a case with a reasonable plea agreement means that some cases against defendants who maintain their innocence on a serious charge are being brought before and rejected by juries at trial, local attorneys said.
But Ron Den Otter, a professor of Constitutional law at Cal Poly’s Political Science Department, warned against drawing specific conclusions from a few years of trial conviction rates.
Den Otter explained that it’s in both parties’ interests to resolve a case early because “you never know what jurors are going to do.”
“A low conviction rate simply may mean the DA is willing to take weaker cases to trial and take more chances with juries,” Den Otter said. “It does not necessarily imply that the DA is doing a bad job. His job is not simply to get as high a conviction rate as possible.”
Also, Den Otter noted that some cases, such as sexual assault, are generally harder to prove and if a prosecutor is aggressively trying those cases, a lower conviction rate is to be expected.
“If they were only trying slam dunk cases, then I would expect that (conviction rate) to be really high,” he said.
Den Otter said the public is not privy to what goes on behind closed doors in a case, but that a more relevant question is why prosecutors believe they have a strong case for trial when jurors do not.
“That is interesting because, unfortunately, most jurors go into a trial with a presumption of guilt,” he said.
In an interview March 2, Dow said he doesn’t calculate conviction rates because it distracts from the office’s mission of “aggressively and fairly prosecuting crime and protecting the rights of crime victims.”
“You can’t do that when you’re focusing on numbers,” Dow said.
Asked about the defense community’s charge that tougher plea negotiations are forcing cases to trial, Dow said the numbers of trials versus filed cases don’t bear that out.
“If that were actually the case, we would be jamming up our courts and we wouldn’t be able to get trials out,” Dow said, recalling that was the case in Riverside County, where he began his career as a prosecutor. “We’ve never had that problem here.”
He also said the office has seen a steady increase in the number of cases in which it’s referred.
Dow also cited the new early disposition court (EDC), a special court that’s actually aimed at resolving misdemeanor and felony cases at the beginning of the judicial process.
“The idea is to resolve the masses of our cases that we can, quickly, leaving now to the trial court the more complex, the more difficult the cases that have more proof issues that need to be develop,” he said.
Defense attorneys asked about the EDC agreed that it might contribute to more cases going to trial because, they said, plea offers there are made “arbitrarily” at the beginning, when both sides know the least about the cases and have collected the least discovery. In some cases, the EDC forces defendants to fight charges they feel are unfair, they said, and plea offers are far less likely if they’ve already gone through the EDC.
Asked about some of the local defense community’s claims that Dow’s deputies in general negotiate less, Dow called plea agreements “absolutely critical to what we do.”
“I give my prosecutors very broad discretion,” he said. “It’s a privilege and one they’ve earned.”
According to Dow, the office has also undergone a nearly 50 percent turnover since he took office due to retirements, judicial appointments and transfers. The office has hired 50 new employees since 2014, he said, in an office of 105 people.
Regarding his office’s recent trial performance, Dow said he’s “absolutely pleased with it.”
He cited three trials — that of Richard Brooks and Oscar Higueros, sentenced to life terms for sex trafficking a minor; and Philip Trujillo, a Las Vegas trucker found guilty by a jury of gross vehicular manslaughter for causing a 2014 crash on Highway 101 that killed four people — as particularly big wins for his office, the gravity of which are not reflected in the numbers.
“No one takes going to trial lightly,” Dow said. “Some of those cases just need to go to trial.”
The unhappiest department?
As The Tribune prepared this article, the county released its 2017 employee satisfaction survey showing that employees of the DA’s Office were the most unsatisfied of any department in the county.
Prosecutors, which make up roughly a third of the office, are among the highest-paid employees in the county.
The DA’s Office placed dead last of all county departments in half of the 10 categories in which satisfaction was ranked, including the categories “My Team,” “Collaboration Between Teams/Departments,” “My Department’s Leadership Team,” “The County” and “Overall Satisfaction.”
Asked about the results, Dow noted that most county departments scored lower than they did in the previous survey in 2014. He said that several factors may play into those numbers unrelated to lost trials or his leadership.
He cited low participation in the survey and the large amount of work done by the office’s legal clerks, which he said he feels are not paid enough.
“People that are happy when things are going well, they often tend not to respond to a survey,” Dow said.
He said other changes to the office such as a new e-filing and case management system and recent turnover could also contribute.
“I think the current assessment is more a reflection of the change in the number of employees, the number of management and the changes in our system taking us out of our comfort zone,” Dow said. “But we remain committed to having a positive kind of family team environment where people are happy and proud of what they do here at the DA’s Office.”