Prosecutor Confirms Records Sought By KPBS Exist In DA’s Office

See all posts regarding the Jason Moore/Bonnie Dumanis political prosecution issue.

Prosecutor Confirms Records Sought By KPBS Exist In DA’s Office
By Amita Sharma
KPBS
May 5, 2014

The office said it will decide by Monday whether to release records.

Records concerning a prosecution of Chula Vista officials are at the San Diego County District Attorney's Office after all.

A month ago, officials in the office of District Attorney Bonnie Dumanis said the records requested by KPBS did not exist.

KPBS asked the DA's Office in early March for records, including emails, about a call former Chula Vista Mayor Steve Padilla said he received from Dumanis in late 2005. Padilla said Dumanis asked him to appoint her aide to a vacant council seat.

A recent KPBS story noted that within weeks of Padilla's refusal, Dumanis began investigating the entire Chula Vista City Council without revealing her call to Padilla. In late March, the DA's Office told KPBS it did not possess records related to the request.

KPBS sent another Public Records Act request two weeks ago seeking the same records from Deputy District Attorney Patrick O'Toole. He oversaw the Chula Vista investigations. Within hours, O'Toole wrote that he had the records and sent them up the chain of command for consideration.

The DA's Office also told KPBS in March that records pertaining to the investigation are legally exempt from disclosure.

"To the extent your request is for 'records pertaining to or discussing the Padilla or Castaneda investigation, or any investigation pertaining to this,' these records are exempt from disclosure under the 'investigative files' exemption," wrote Deputy District Attorney Julie Reizen in a letter to KPBS.

Reizen also cited the "deliberative process" privilege.

But Peter Scheer, executive director of the California First Amendment Coalition, said neither of those exemptions apply to records such as emails discussing the call to Padilla, or how it might have affected subsequent investigations.

"The communications, the email communications that raised questions or doubts, were not part of the investigative file for the prosecution," Scheer said. "The deliberative process privilege is a much abused, very broad privilege. They have to justify a determination that the public interest in keeping it secret outweighs the public interest in making it public. There's no reason to keep it secret except to avoid embarrassment."

Scheer added that even if the records were legally exempt from disclosure, Dumanis could choose to release them.

The DA's Office said it will decide Monday whether to release the emails.

Justice at last for Jason Moore? Prosecution by Bonnie Dumanis for taking two hours off work now proven to be political

It's about time that the abusive political prosecution of Jason Moore should be rectified. Steve Castaneda also seeks information about the political prosecution he endured.

See recent revelation: Phone Call Raises Questions About DA Dumanis’ Chula Vista Investigations

News Of Dumanis Call Prompts Request To Strike Plea Deal
By Amita Sharma
KPBS
April 24, 2014

An aide to former Chula Vista Mayor Steve Padilla wants to undo his 2008 misdemeanor guilty plea.

Jason Moore's defense attorney says his client should have been told about District Attorney Bonnie Dumanis' call when he was charged.

The request follows news of a call San Diego District Attorney Bonnie Dumanis made before she investigated Chula Vista city officials.

In 2007, former Padilla aide Jason Moore faced five felony charges for perjury. Moore was caught spying on the political enemy of his boss at an event during work hours. Prosecutors said Moore lied about when he submitted a request to take time off from work. Moore ultimately pleaded guilty to a misdemeanor in a deal with the DA’s office.

Moore’s attorney Knut Johnson said that deal would have never been cut today. Johnson says revelations in a KPBS story this week changed everything.

The story reported that Dumanis called then-Mayor Padilla in 2006 just weeks before she started investigating Chula Vista city officials. Padilla said Dumanis asked him to appoint her own aide to a vacant Chula Vista City Council seat. Padilla refused and soon afterward, she launched her probes.

"If the district attorney called up Mr. Moore’s boss and tried to get that boss to make a city council seat available for one of her employees and then when refused a week later started an investigation that included subpoenaing Mr. Moore to the grand jury, that was undisclosed and we should have known about that," John said. "It's such an obvious conflict of interest."

Johnson said he plans to file court papers arguing that Moore’s plea deal was obtained illegally. The DA’s office said it had no comment at this time.



Here's one of my early posts about the Jason Moore case:

Is Jason Moore the Dale Akiki of Bonnie Dumanis?
May 20, 2007

Tanya Mannes writes about Bonnie Dumanis' mysterious "Public Integrity Unit" in this morning's San Diego Union-Tribune:

"In existence about 14 months, it has filed charges against one person: Jason Moore, a former Chula Vista mayoral aide." Jason Moore worked for Steve Padilla, a Democrat who was in a run-off election against Republican Cheryl Cox.

The investigation of Moore, for taking two hours off work to take pictures of Cheryl Cox with David Malcolm at a Cox fundraiser, began in August 2005, well before the November election. Oddly, Bonnie Dumanis says, that in the future, in most cases, "we will not investigate a complaint until after an election."

Bonnie says her office is determined to be nonpolitical. When will that start, Bonnie? Specifically, when will you investigate complaints against Cheryl Cox and her associates?
v Dumanis did not even announce the existence of her "Public Integrity Unit" until March 1, 2007. Jason Moore was indicted on March 27, 2007.

O'Toole and Dumanis have each claimed to be personally interested in prosecuting perjury. But Dumanis' office recently refused to investigate proven perjury regarding illegal actions committed at Chula Vista Elementary School District when Bertha Lopez and Cheryl Cox were trustees of CVESD.

UPDATE April 25, 2014:

Maura Larkins' note: I imagine that readers are more likely to believe me regarding illegal actions and perjury committed by school officials in the South Bay after the recent revelations of pay-for-play deals with contractors. See related posts. I think these revelations will hurt Bonnie Dumanis in her contest against Bob Brewer in the upcoming election for district attorney in San Diego. But I hope that Bob Brewer, if he wins, won't give all public officials a free pass. I worry about that since Bob Brewer has made most of his money defending powerful white collar players. And he even has Bonnie's henchman Patrick O'Toole, who savagely prosecuted Jason Moore and Steve Castaneda, in his camp. That's sort of scary...

I just discovered that Bertha Lopez pled guilty yesterday to an extremely small potatoes transgression: accepting a gift over the limit. Bonnie Dumanis has not gone after the serious, truly high-stakes corruption in schools. I blame Bertha Lopez for harming students by rubber-stamping corrupt actions by both Republicans and Democrats in schools, but I believe that her prosecution by Bonnie Dumanis was largely political. Obviously, Bonnie Dumanis didn't want a trial because Bertha might have revealed too much about the corruption she knows about.

The San Diego Union-Tribune reports: "Two more Sweetwater school board members pleaded guilty Thursday to minor charges in the South County political corruption investigation, effectively ending a case once described as the worst corruption scandal in a decade on a muted note. Board President Jim Cartmill and trustee Bertha Lopez each pleaded guilty to a misdemeanor charge of accepting gifts over the state limit. They will be sentenced in June."

In a related case, another political target of Bonnie Dumanis also asks for follow-through on the new information about the D.A.'s political motives.

Ex-Chula Vista Councilman Wants DA To Release Emails
By Amita Sharma
KPBS News
April 22, 2014

Former Chula Vista City Councilman Steve Castaneda called on District Attorney Bonnie Dumanis to release emails connected to his 2008 prosecution.

Former Chula Vista City Councilman Steve Castaneda called Thursday on District Attorney Bonnie Dumanis to release emails connected to his 2008 prosecution.

Castaneda's request followed a KPBS report that Dumanis investigated him and his colleagues after failing to get her aide appointed to a vacant Chula Vista council seat.

In 2006, Dumanis opened an inquiry into whether Castaneda received favors from a developer. That was months after then-Chula Vista Mayor Steve Padilla said he refused Dumanis' phone request to appoint an aide, Jesse Navarro, to a vacant council seat. Castaneda was later indicted on accusations of lying to a grand jury.

A jury acquitted him on most of the charges and hung on others.

Castaneda said he should have been told about Dumanis' call to Padilla. He now wants the District Attorney's Office to release all emails regarding his case because he wants to know "what happened and why it happened."

"Frankly, if she were on my side of the prosecutorial desk, she'd be at a grand jury right now," Castaneda said. "And she's hiding behind her status and her position, and I think she owes it to not only me and my family, but she owes it to the people of San Diego County."

A Dumanis spokeswoman released a statement on the matter saying, "Mr. Castaneda's criminal case is closed and we will not allow the District Attorney's Office to be used as a political pawn."

KPBS also asked for the same emails but was told the records didn't exist and would be exempt from disclosure anyway.

It's Hard for a White Guy to Get Himself Arrested

From Courthouse News
...Constantino, who was wearing the same ensemble that he has worn for many of his demonstrations: a Hugo Boss suit, Yves Saint Laurent tie, a lion-decorated silk handkerchief in his breast pocket and Cole Haan wingtip oxford shoes. Constantino wears the self-styled "magic invisible suit of miracles" in wry comment on the trappings of white privilege...

It's Hard for a White Guy to Get Himself Arrested
By Kevin Drum
Daily Kos
Dec. 17, 2013

Over at The Atlantic, a former prosecutor named Bobby Constantino has a piece called "I Got Myself Arrested So I Could Look Inside the Justice System." It's oddly riveting. It starts with a description of his former career:

In between the important cases, I found myself spending most of my time prosecuting people of color for things we white kids did with impunity growing up in the suburbs. As our office handed down arrest records and probation terms for riding dirt bikes in the street, cutting through a neighbor’s yard, hosting loud parties, fighting, or smoking weed — shenanigans that had rarely earned my own classmates anything more than raised eyebrows and scoldings — I often wondered if there was a side of the justice system that we never saw in the suburbs. Last year, I got myself arrested in New York City and found out.

In a nutshell, this guy desperately tried to get himself arrested for walking around New York City with a stencil and a spray can (a class B misdemeanor) and had no luck. So he tagged City Hall. With a surveillance camera recording him. Still no luck. He turned himself in. They turned him away. He literally found it impossible to get arrested.

He finally succeeded, spent a night in jail, and went to court. And then just the opposite happened. He was initially sentenced to five days community service until the prosecutor suddenly realized the case file was flagged "no deal." So he went back to court, and this time they insisted on throwing the book at him. The judge was so pissed off at him that he then doubled the book.

There's more, and it's worth a read. A white guy in a suit, it turns out, is practically invulnerable to being arrested. But when he uses this fact to embarrass the judicial system, the judicial system suddenly turns on him with a fury. Welcome to America.


In the wealthy suburbs of Massachusetts, our shared narrative told us that people who didn’t live where we lived, or have what we had, weren’t working as hard as we were. We avoided inner city streets because they were dangerous, and we relied on the police to keep people from those places out of our neighborhoods. Whatever they got, we figured they deserved. My total, unquestioning belief in this narrative was the reason I arrived in Roxbury, fresh out of law school, eager to incarcerate everything in sight."

I Got Myself Arrested So I Could Look Inside the Justice System
A former prosecutor fights the law and lets it win.
Bobby Constantino
Dec 17 2013

Left to right: A snapshot of the author's graffiti; a "selfie" of the author, dressed in his suit and tie and ready to vandalize; a surveillance video still of the work in progress (Bobby Constantino)

Ten years ago, when I started my career as an assistant district attorney in the Roxbury neighborhood of Boston, I viewed the American criminal justice system as a vital institution that protected society from dangerous people. I once prosecuted a man for brutally attacking his wife with a flashlight, and another for sexually assaulting a waitress at a nightclub. I believed in the system for good reason.

But in between the important cases, I found myself spending most of my time prosecuting people of color for things we white kids did with impunity growing up in the suburbs. As our office handed down arrest records and probation terms for riding dirt bikes in the street, cutting through a neighbor’s yard, hosting loud parties, fighting, or smoking weed – shenanigans that had rarely earned my own classmates anything more than raised eyebrows and scoldings – I often wondered if there was a side of the justice system that we never saw in the suburbs. Last year, I got myself arrested in New York City and found out.

On April 29, 2012, I put on a suit and tie and took the No. 3 subway line to the Junius Avenue stop in the Brooklyn neighborhood of Brownsville. At the time, the blocks around this stop were a well-known battleground in the stop-and-frisk wars: Police had stopped 14,000 residents 52,000 times in four years. I figured this frequency would increase my chances of getting to see the system in action, but I faced a significant hurdle: Though I’ve spent years living and working in neighborhoods like Brownsville, as a white professional, the police have never eyed me suspiciously or stopped me for routine questioning. I would have to do something creative to get their attention.

“What does that say?” the officer asked me incredulously. I held the stencil up for him to read. “What are you, some kind of asshole?”

As I walked around that day, I held a chipboard graffiti stencil the size of a piece of poster board and two cans of spray paint. Simply carrying those items qualified as a class B misdemeanor pursuant to New York Penal Law 145.65. If police officers were doing their jobs, they would have no choice but to stop and question me.

I kept walking and reached a bodega near the Rockaway Avenue subway station. Suddenly, a young black man started yelling at me to get out of Brownsville, presumably concluding from my skin color and my suit that I did not belong there. Three police officers heard the commotion and came running down the stairs. They reached me and stopped.

“What’s going on?” one asked.



“Nothing,” I told them. “What does that say?” the officer interrupted me, incredulously, as the other two gathered around. I held the stencil up for them to read.

“What are you, some kind of asshole?” he asked.

I stood quietly, wondering whether they would arrest me or write a summons. The officers grumbled a few choice curse words and then ran down the stairs in pursuit of the young man. Though I was the one clearly breaking a law, they went after him.

I continued west, through Crown Heights, Prospect Heights, and then north through Fort Greene, carrying the stencil, talking to residents. I crossed the Brooklyn Bridge and arrived at City Hall. I walked around the building a few times, and then went down Broadway to the Wall Street Bull. From Brownsville to downtown Manhattan, I would estimate that I passed more than 200 police officers, some from a distance, some close enough to touch. Though I was conspicuously casing high-profile public targets while holding graffiti instruments, not one of them stopped, frisked, searched, detained, summonsed, or arrested me. I would have to go further. I walked up to the east entrance of City Hall and tagged the words “N.Y.P.D. Get Your Hands Off Me” on a gatepost in red paint. The surveillance video shows me doing this, 20 feet from the police officer manning the gate. I moved closer, within 10 feet of him, and tagged it again. I could see him inside watching video monitors that corresponded to the different cameras. As I moved the can back and forth, a police officer in an Interceptor go-cart saw me, slammed on his brakes, and pulled up to the curb behind me. I looked over my shoulder, made eye contact with him, and resumed. As I waited for him to jump out, grab me, or Tase me, he sped away and hung a left, leaving me standing there alone. I’ve watched the video a dozen times and it’s still hard to believe. I woke up the next morning and Fox News was reporting that unknown suspects had vandalized City Hall. I went back to the entrance and handed the guard my driver’s license and a letter explaining what I’d done. Several police officers were speaking in hushed tones near the gates, which had been washed clean. I was expecting them to recognize me from eyewitness descriptions and the still shots taken from the surveillance cameras and immediately take me into custody. Instead, the guard politely handed me back my license, explained that I didn’t have an appointment, and turned me away. I went home and blogged about the incident, publicizing what I’d done and posting pictures, before returning to the guard tower the next day, and the next, to hand over my license and letter. Each time, the guards saw a young professional in a suit, not the suspect they had in mind, and each time they handed me back my license and turned me away. On my fifth day of trying, a reporter from Courthouse News Service tagged along. At first skeptical, he watched in disbelief as the officer took my license, made a phone call, and sent me on my way. On Friday May 4, 2012, I turned myself in at Manhattan Criminal Court. Two Intelligence Unit detectives arrived and testily walked me outside to a waiting unmarked police car. Court papers show that they’d staked out my apartment to arrest me, and that I unwittingly kept eluding them. In one dramatic instance, two officers had tailed me as I walked down Eastern Parkway. I’d entered the subway station at the Brooklyn Museum, unaware that I was being followed. One of the officers had followed me through the turnstiles while another guarded the exit. The report states that the officers then inexplicably lost contact with me. Now, we drove west on Canal Street during rush hour, inching across Manhattan to the West Side before turning around and crawling back to a precinct in the East Village. Eight hours later, around midnight, the officers drove me to central booking, in the basement of the courthouse where I had surrendered. “The judge just left, man, your timing sucks,” one of my cellmates told me as the iron door clanged shut. The cell was approximately 20 feet by 30 feet, and a large metal toilet platform occupied a quarter of the room. I stepped over several men lying on the floor and took the open seat adjacent to the platform. The toilet over me had no door and no partition, and the entire room had a view of sitting users. Feces and urine were caked onto the metal and smeared on the concrete next to me, which is why the seat was vacant. Each time, the guards saw a young professional in a suit, and each time they handed me back my license and turned me away. Over the next 24 hours, I watched as men and women came and went, many with cuts, bruises, and welts. I asked several of them how they’d been injured, and they described fierce struggles with the police. One young man cradled what he reported was a broken wrist. Another pulled up his shirt and revealed three Taser burns. Yet another removed his fitted cap and pointed to a swollen knot on his head. I exchanged uncomfortable glances with the few other white men in the cellblock. “Did they treat you like that?” I whispered. “No, you?” “No.” We held out our wrists to compare. “I’m trying man, but they won’t listen to me,” another man implored through the phone, “Hold on—” “When will you let me see my attorney? He’s been upstairs waiting to see me for two hours!” another man called out in the direction of a group of corrections officers sitting and talking out of view. Some time later, around 2:00 a.m., an older man started calling out, pressing himself against the bars. “CO, I’m diabetic. I need my sugar pills,” he pleaded. Nothing. “CO, please,” he begged another CO with thin-rimmed glasses walking by. “CO, I’m diabetic, I need my sugar—” “Sir, can’t you see I’m busy here?” he interrupted, without stopping. Some time later the door swung open and a CO led three more men into our cell. Eighteen men were now sitting and lying feet to head, or feet to feet, along the length of the bench and floor. “Sir, do you think this is the right way to treat people, piling them on top of one another, when you have an empty cell open all night?” I said indignantly, when morning came, pointing at a vacant cell across the hall. “I’ve been doing this 22 years,” the officer replied. “So yeah, I do.” Around midnight, after 34 hours in custody, I was led to a courtroom upstairs to be arraigned. The district attorney’s office, responsible for prosecuting offenders, asked the judge to dismiss my case with three days of community service. This is standard practice for first-time, nonviolent misdemeanor offenders. The judge read through the paperwork and agreed, though he raised the number of community service days to five. I accepted the sentence and the clerk began reading it into the record. “Your honor, wait!” the assistant state attorney interrupted. Startled by the outburst, the judge looked up and scowled as the attorney read something written on her file. She blushed and continued, “I’m sorry, I have to withdraw my offer.” As the judge shook his head and set a date to return, I felt an odd pang of empathy for her. Once, as a rookie prosecutor, a judge had humiliated me in open court for being evasive about a file that had an ominous yellow “do not dismiss” sticky note on it.

Two months later I arrived at Manhattan Criminal Court at 9:00 a.m. and stood in a line of people that stretched out to the street. I found my way to the courtroom and watched cases being called until around noon, when my attorney beckoned me into the hallway and confirmed what had been written on the assistant state attorney's file at arraignment. “The district attorney’s office is playing hardball. They are seeking a guilty plea against you and requesting jail time if you don’t take it.”

“But it’s a first-time misdemeanor, that ridiculous—”

“I know, but they aren’t budging. Your only chance at avoiding the consequences of a guilty conviction is going to trial.”

Seven subsequent months of visits offered snaking lines, courtrooms packed with misdemeanor offenders, assistant state attorneys threatening jail time, and the steady issuing of fees, fines, and surcharges.

In the end I was found guilty of nine criminal charges. The prosecutor asked for 15 days of community service as punishment. My attorney requested time served. The judge—in an unusual move that showed how much the case bothered him—went over the prosecutor's head and ordered three years of probation, a $1000 fine, a $250 surcharge, a $50 surcharge, 30 days of community service, and a special condition allowing police and probation officers to enter and search my residence anytime without a warrant.

At my group probation orientation, the officer handed each of us a packet and explained that we are not allowed to travel, work, or visit outside New York City.

“Wait, what?” I blurted out. “This is true even for nonviolent misdemeanors?”

“Yes, for everyone. You have to get permission.”

After the orientation, I went straight to my probation officer and requested permission to spend Christmas with my family in Massachusetts. I listened in disbelief as she denied my request—I’d worked with probation departments in several states, and I knew that regular family contact has been shown to reduce recidivism. My probation officer also refused to let me go home for Easter and birthdays. After six or seven of these refusals, I complained to a supervisor, citing New York’s evidence-based practices manual, and was assigned to a new probation officer.

In May, I requested permission to visit a class of third graders in my old neighborhood. The year before, when I’d set out to march from Boston to Florida to protest the handling of the Trayvon Martin case, the class had joined me for a day, calculated my route, and located places for me to sleep. After one of the students, Martin Richard, was killed in the Boston Marathon bombing, the class invited me to march with them in his memory. Though my new probation officer and I have an excellent relationship, and she has allowed me to visit my family twice, she denied this request...

Don Siegelman case: political prosecution by Bush justice department?

Questions Linger About Siegelman Prosecution
by Kathy Lohr
National Public Radio
All Things Considered
Dec. 13, 2008

A federal appeals court heard arguments this week in the case of former Alabama Gov. Don Siegelman. Siegelman, a Democrat, was convicted of corruption and bribery and served nine months in prison. But the appeals court ordered his release earlier this year after it found substantial questions with his case. Siegelman argues that the prosecution was a politically motivated attack, and Congress is looking into the case.