Blog note: this article references a grand jury report.
Marin District Attorney Edward Berberian, who is retiring after serving as the county’s district attorney since 2005, has issued a press release defending his office from criticism by Anna Pletcher, one of the candidates seeking to replace him in the Nov. 6 election.
“The public and the press have an absolute right to express their opinion and comments on what they believe the Marin County District Attorney is doing,” Berberian wrote in his statement. “As your current District Attorney and one of Marin’s public prosecutors for the past 42 years, I simply ask that critics of current policies and practices base their comments and opinions on facts, not political hyperbole.”
Berberian’s statement focuses on Pletcher’s criticism of the district attorney office’s treatment of sexual assault victims and prosecution of environmental crimes.
On Tuesday, Pletcher, who spent 10 years working as a prosecutor for the U.S. Department of Justice in San Francisco, responded to Berberian’s press release with a release of her own.
Pletcher wrote that Berberian’s statement was “yet another last-ditch effort to mislead voters about these issues.”
She said Berberian’s press release was sent on official letterhead “to every county supervisor and their aides and every police chief in the county” and “posted on the official DA Facebook page.”
“It is extremely concerning if the office chose to use taxpayer resources and county time to inject themselves into a political campaign,” Pletcher wrote.
Frugoli has been endorsed by Berberian and his three Marin district attorney predecessors: Paula Kamena, Michael Gridley and Jerry Herman.
Former Marin County Counsel Steven Woodside, who has endorsed Pletcher, said he believes Berberian’s release was improper given his endorsement of Frugoli and the proximity to Election Day.
Current County Counsel Brian Washington said, “An elected official can provide information about matters within the jurisdiction of his or her office.”
Berberian responded Wednesday, “This press release is not a political endorsement for any candidate. It is simply trying to put before the public what the actual facts are.”
Frugoli said Wednesday that she took a leave from the district attorney’s office in mid-September to concentrate on the campaign and had no knowledge of Berberian’s press release.
Frugoli has been hesitant to defend the D.A. office’s performance during the campaign. During a debate sponsored by the League of Women Voters and the ACLU on Sept. 19, Frugoli said, “Does our office need change? Absolutely.
“I’m an employee of the office and I’m proud to be there,” she said, “but I’ve never said that we’re perfect and that change isn’t needed.”
At another debate, she said the office’s pursuit of environmental crime was “woefully feeble.” But in a statement issued Wednesday she said she agreed with the points Berberian makes in his release.
During the campaign, Pletcher has suggested that it is unjust for Marin rape victims to have to travel to Vallejo for rape kit examinations.
Currently, physical evidence is gathered from Marin rape victims at Kaiser Permanente Vallejo Medical Center in Vallejo. Marin County contracts with Napa Solano Sexual Assault Nurse Examiners (SANE) and Sexual Assault Response Team (SART) to oversee the exams. Law enforcement officers drive victims to the hospital if requested to do so.
In his release, Berberian said the examinations were moved to Vallejo because Marin rape victims “were faced with both unacceptable wait times and examiners without the best forensic experience, resulting in courtroom challenges as to their expertise.”
He noted the 2018 Marin County Civil Grand Jury investigated the issue in detail and “found that the process and procedures that we follow are victim-driven, not law enforcement or District Attorney imposed.”
The grand jury determined that the number of sexual assaults in Marin “are insufficient to support a local program.”
“Having an in-county SART exam facility would not reduce the impact to the victims or the county agencies,” the grand jury wrote. “SANE nurse proficiency is maintained and enhanced by sufficient experience and caseload.”
In her statement released Tuesday, however, Pletcher wrote, “This most recent attempt to defend Marin’s current cruel policy that requires victims of sexual assault to travel to Vallejo for a rape kit examination smells of last-minute campaign desperation.”
Pletcher says the grand jury failed to consider her idea of hiring the same specialized nurses who provide on-call services in Vallejo to travel to Marin to do the exams.
Lisa Lewis-Javar, executive director of Napa-Solano SANE/SART, said Tuesday that she has discussed the issue with both Pletcher and Frugoli.
“I believe that Lori understands it,” Lewis-Javar said. “Anna thinks there is a simple solution and there isn’t.”
Lewis-Javar said that she and three other nurses provide examinations for Marin, Solano and Napa counties. The nurses are on-call around the clock during their shifts.
“I cannot have nurses driving all over the place; it’s just not fair to them,” Lewis-Javar said. “I can’t afford to burn out my nurses or we won’t have a team.”
Pletcher has said the SANE examiners can be brought to Marin at no additional cost. Currently, Marin County is paying $65,000 annually for the service.
Lewis-Javar, however, estimated that bringing examiners to Marin could require an initial expenditure of $250,000 and an ongoing annual cost of $100,000.
As for the district attorney’s prosecution of environmental cases, Berberian wrote his office has been quite active “despite the fact there are virtually no industries present in the county which are typically associated with pollution.”
Berberian wrote that his office has been “a party to at least 15 prosecutions of corporate defendants for violations of environmental laws, including, but not limited to, the Hazardous Waste Control Act and the Medical Waste Management Act.”
“Marin has also jointly prosecuted over 30 cases with the California Attorney General’s office under the Safe Drinking Water and Toxic Enforcement Act (Prop. 65), including cases involving unsafe levels of lead in children’s and women’s multivitamins, food products, and infant formula,” Berberian wrote.
When asked for examples of cases that the D.A.’s office should have been involved in prosecuting but didn’t, Pletcher’s campaign supplied three: a case in which Home Depot was ordered to pay $27.8 million for unlawfully disposal of hazardous waste; a case in which Walmart Stores and Jet.com were required to pay $940,000 to settle claims they sold plastic products wrongly labeled as biodegradable; and a case in which several petroleum companies were required to pay $3 million in penalties related to the operation of underground storage tanks and management of hazardous materials.
Marin Deputy District Attorney Andy Perez, who oversees the office’s environmental cases, said Marin participated in the investigation of the Home Depot case, even though it was not a named plaintiff, and received a share of the settlement money to reimburse it for its costs.
Perez said the Walmart suit involved consumer protection, not environmental laws. He said Marin lacked jurisdiction in the third case because none of the violations associated with the storage tanks occurred in Marin County.
At the Independent Journal’s request, the Sierra Club Marin Group, which endorsed Pletcher, also supplied three examples of cases it said the Marin D.A.’s office should have participated in but didn’t.
The Home Depot case was one of the examples provided. The other two cases involved stores belonging to Tractor Supply Co. and Real Food Co. Perez said his office lacked jurisdiction to file in those cases because none of those stores are in Marin.
October 31, 2018
Marin Independent Journal
By Richard Halstead
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