Monday, January 18, 2010

Santa Clara Battle for police endorsement

By Tracey Kaplan
Posted: 01/18/2010 12:00:00 AM PST
Updated: 01/18/2010 12:21:52 AM PST

Until now, the race for Santa Clara County district attorney was shaping up as a referendum on incumbent Dolores Carr's character amid reports of ethical lapses.

But now a policy dispute has erupted online that could determine which candidate, Carr or high-profile prosecutor Jeff Rosen, wins what may be the most important endorsement in the race — from the powerful San Jose police union.

The dispute between Carr and Rosen is over how much information the public should be privy to when suspects die at the hands of police.

Early online reactions by officers to the candidates' positions seem to indicate they are not happy with Rosen's support for a slightly more open, public process. But community groups also reject Rosen's position, saying it falls far short of the transparency they're seeking.

The debate comes at a time when a series of Mercury News articles have heightened scrutiny over the department's use of force and arrest practices in immigrant communities. It also follows the controversy over Daniel Pham, a knife-wielding, mentally ill man shot to death last year by two officers responding to reports he had attacked a family member.

The union's board is poised to make the highly sought endorsement next month, after declining Carr's request to support her last year before Rosen officially entered the race.

"Whoever gets the San Jose police endorsement can send out letters saying they have that support," said political consultant Rich Robinson. "That third-party validation is pretty heady stuff in this race."

Police in Santa Clara and Los Gatos already have come out in support of Rosen — in a rare demonstration of opposition to a sitting district attorney, despite the fact that Carr's stepson is a police officer and her husband just retired from the San Jose force. The deputy sheriff's union, also influential, has yet to make its endorsement. But with more than half of the county's voters living in San Jose, and its police department being the largest in the county, its endorsement traditionally carries the most weight in any race for the district attorney post. The candidates' remarks and officers' comments are posted on, a site coordinated by the San Jose Police Officers' Association.

Different stances

In online statements, both Carr and Rosen say they oppose open grand jury investigations, turning aside calls from some community critics to make them public. Carr's predecessor, George Kennedy, opened grand juries on at least two occasions. However, Carr and Rosen both contend that open grand juries politicize the judicial process and sacrifice the privacy of people who haven't been charged with crimes.

But while Carr defends the practice of using closed grand juries, Rosen rejects both open and closed panels.

Carr recently declined to open the grand jury in the Pham case or to explain why the panel ultimately declined to indict the officers.

"The way we have reviewed these cases, without opening the grand jury sessions to the media and the public, has served our community well for decades," Carr wrote. "I will continue to do what I believe is right even in the face of significant media pressure."

Other models

In contrast, Rosen says that even though he believes lethal force is justified in the "vast majority" of cases, closed grand juries leave the public with too many unanswered questions and increase mistrust of police. A Mercury News analysis found that in 2008, San Jose police received 117 use-of-force complaints and sustained none.

Rosen says Santa Clara County is the only large county in the state where criminal grand juries routinely handle lethal force cases. He advocates bringing police and community groups together to explore other models, that include allowing the district attorney to decide whether to bring charges and explain the rationale in a public report — as is done in Los Angeles, Sacramento and other counties — and having the coroner hold open inquests, like in Contra Costa County.

"Perhaps in cases where a decision not to prosecute is made, the DA's office will issue a thorough report, with exhibits and attachments, that answers the public's legitimate desire to know what happened and why," Rosen wrote.

In Alameda County, District Attorney Nancy E. O'Malley said the buck stops with her. "We conduct an independent investigation upon which the DA makes the determination," she said in an e-mail. In San Francisco, the district attorney also makes the decision.

Rosen's position angers some San Jose police officers, judging by some of the comments on the Web site. One brands it "double talk," and another a "frightening viewpoint." One anonymous commentator on the Web site expressed concern that if the decision were taken away from the grand jury, police critics would pressure the district attorney to indict every officer who responded with lethal force. But some legal experts say district attorneys under the current system can easily manipulate the grand jury to do their bidding.

Rosen's proposal also falls far short of the open grand jury community activists are still seeking.

"I don't think Rosen is offering a legitimate alternative," said community activist Raj Jayadev, a leader of a multiethnic coalition of more than 15 community and service-based organizations concerned about what it says is the use of excessive force by police. "Neither one of these candidates is anxious to say anything that riles law enforcement or really gets the public any answers."

Contact Tracey Kaplan at 408-278-3482.

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