This week, District Attorney Jeff Rosen answered 10 questions selected by SJI staff out of dozens submitted by San Jose Inside commenters. The topics range from how he handled the DeAnza sex case, his hiring of a Mercury News reporter and the timeline for several high-profile cases.—Editor
1. What are the results of the MACSA investigation? When will you release them? And, what type of communication have you had with MACSA’s civil attorneys on this topic?
— Inquiring Minds
Dear Inquiring Minds,
As the chief law enforcement officer of Santa Clara County, I ethically can do nothing to obstruct or reveal an investigation before it is complete. I hope to be able to answer your question and be fully transparent by the end of February or beginning of March. Thank you for taking an interest in the work of the District Attorney’s Office.
Yours truly, Jeff Rosen
2. Can you please comment on the difference between the standards police officers use to make an arrest, i.e. probable cause, versus the criteria that the District Attorney’s Office uses on deciding whether to prosecute. I believe many people think that the criteria is the same, can you enlighten the general public as to other factors in the mix for prosecutorial decisions please?
— 2.Educate us
Dear 2.Educate us,
Thank you for taking the time to write. You are correct that there are multiple stages in a criminal prosecution. As a person progresses through each crucial stage, the standard of proof becomes higher.
Arrest: A person faces arrest if a peace officer has probable cause to believe that a crime has been committed by the person arrested.
Criminal Complaint: The District Attorney issues a criminal complaint against a person in Santa Clara County only after four separate tests are applied to an investigation - (1) Has a public offense been committed? (2) Is the identity of the perpetrator known? (3) Can the offense be proven beyond a reasonable doubt? (4) Should there be a prosecution under all the circumstances of the case?
Conviction: A person suffers a criminal conviction after either (1) pleading guilty or (2) after a judge finds guilt beyond a reasonable doubt in a court trial or (3) after all twelve jurors find guilt beyond a reasonable doubt in a jury trial.
Your question was excellent.
Yours truly, Jeff Rosen
3. When you were running to be DA, you hammered your opponent Dolores Carr for the way she handled the De Anza sex case by not pressing charges. Now that the civil trial is complete and your office declined to press charges, do you think Carr made the right decision in hindsight?
— Campaign question
Dear Campaign question,
In 2010, I ran a vigorous campaign against the incumbent because I believed she had made a series of missteps in her short time in office. I knew that Santa Clara County deserved stronger and more ethical leadership from its chief law enforcement officer.
One of my criticisms involved the manner in which my opponent handled the announcement of her decision not to prosecute the men who were arrested for rape in what came to be known as The De Anza Rape Case. I believe that victims and witnesses of crimes should be treated with courtesy and compassion; the former DA showed neither when she blithely announced that she was “at peace with her decision” not to prosecute. My concern as the DA is with peace in the community and with helping victims of crimes.
After taking office in January 2011, my office conducted an exhaustive and extensive review of all the evidence in the case. I then met with Jessica Doe and other young women involved in the case, listened to their concerns and explained my decision not to file criminal charges. Although they disagreed with my decision, I believe they appreciated and respected that I talked with them before making a public announcement. At a subsequent news conference, I stated: “What happened to Jessica on March 3, 2007, at 349 South Buena Vista Ave. in San Jose was not her fault. It was reprehensible and inexcusable…however, the District Attorney’s Office cannot prove that a crime occurred and therefore will not file criminal charges.” I don’t disagree with my predecessor’s conclusion. I disagreed with how she handled this tragic situation and the manner in which she explained her decision to all of us.
This case was difficult and upsetting on a number of levels. As a veteran courtroom prosecutor who has sent scores of sex offenders to prison, I am dedicated to prosecuting sex crimes when the evidence supports the prosecution.
Your DA, Jeff Rosen
4. I don’t really know that much about the DA’s office but kind of have a feeling that most of the work is around street level crimes. Does your office also look into “white collar” types of criminal activity, or is that exclusively done by others (state/federal)?
— Blair Whitney
Dear Blair Whitney,
The Santa Clara County District Attorney’s Office prosecutes misdemeanor and felony violent and nonviolent criminal conduct that occurs in whole or part in this County. The Office also has a Crime Laboratory and a Bureau of Investigations. And to answer your specific inquiry, we have a robust team of experienced prosecutors who handle the most serious non-violent offenses, sometimes referred to as “white collar crimes,” such as consumer fraud, environmental crimes, high tech crimes, insurance fraud, real estate fraud, major fraud, securities fraud and public assistance fraud.
I care deeply about the physical and financial safety of all persons in the County. This year I started broadcasting monthly scam or fraud alerts on http://www.santa-clara-da.org and YouTube.
I hope you visit the website to learn more about the DA’s Office and the “white collar” crimes we prosecute.
Yours truly, Jeff Rosen
5. Can you explain your reasoning for the hire of Sean Webby from the Mercury News as your new PIO? It just seems odd that you would hire someone from the Mercury News and in particular someone who has written many negative articles about the DA’s office. We all know how much the MN hates law enforcement. Is Nick Muyo still with your department in some fashion?
I hired Sean Webby because he is smart, experienced, media-savvy and will challenge us to better serve the public. “Transparency” is one of the four core values of my Office, along with Service, Integrity, and Hard Work. Sean will help me fulfill my promise of letting you, the People, know of the fine work my Office is doing in your name.
While Sean has written articles that have been critical of law enforcement, he has written many more articles over the last decade that detailed acts of heroism, service of law enforcement officers that went beyond the call of duty, and an award-winning series of articles about the tracking of sex offenders under the State’s Megan’s Law.
Among other tasks, I have asked Sean Webby to help me with the production of an electronic periodical that will keep the public advised of our work. You will have an opportunity to receive it; details to follow.
Nick Muyo remains a valued investigator with this Office. (Under the prior administration, he was paid as an investigator but worked as a press information officer.)
Thanks for your thoughtful question.
6. DA Rosen, Please explain the mission of the Governmental Integrity Unit. Does this unit actively monitor government for corruption and or illegal acts? Does this unit self initiate investigations? What is the expertise and background of those assigned to this unit?
— Governmental Integrity Unit
Dear Governmental Integrity Unit,
One of my signature accomplishments this year was creating a dedicated Public Integrity Unit. The unit both initiates investigations and takes referrals from other law enforcement agencies. Deputy District Attorney John Chase heads the unit and works closely with specially-dedicated District Attorney Investigators. John Chase is a veteran prosecutor with numerous successes in the prosecution of white collar and violent felonies.
The Public Integrity Unit supervises the investigation of cases involving corruption of public officials and employees in their official capacities or in the performance of their duties. It also initiates criminal charges when appropriate, generally by grand jury indictment. These crimes include theft, embezzlement or misappropriation of public funds; and removal, alteration, destruction or falsification of public records. The unit also enforces the provisions of the Political Reform Act, relating to campaign filings and practices, and the Elections Code. The unit reviews issues relating to the open public meeting law (Brown Act).
I believe that Adlai E. Stevenson said: “Public confidence in the integrity of the Government is indispensable.” I share his opinion.
7. Mr. Rosen, Your predecessor admitted that she inherited a “Brady List” that was extremely disorganized and problematic. How important is the application of the basics of “due process” considered, when maintaining and implementing the Brady List by your office?
— Mitzi K.
Dear Mitzi K,
I cannot speak to the actions of my predecessor in regards to the Office Brady List. I will give you a summary explanation what the list is and how I maintain it:
The US Supreme Court case of Brady v. Maryland holds that prosecutors have a duty to give the defense any evidence favorable to the defendant, which is held by the prosecution team. This is called exculpatory evidence and it includes the DA’s knowledge of acts of moral turpitude which could be used to impeach a testifying witness. Therefore, the DA’s Office keeps of list of the very few law enforcement personnel who have been credibly accused of such acts. If one of those individuals is subpoenaed by the prosecution to testify, then the deputy district attorney is notified of the witness’s status on the Brady list in order to follow through with our important discovery obligations to let the defendant’s attorney know of the information.
The Brady list is maintained and updated constantly by trusted members of my management staff. Our system honors the rights of the accused and the basics of due process.
Thank you for your excellent question.
Sincerely, Jeff Rosen
8. DA Rosen: Could you talk a little about “jury appeal” and how this concept prevents some crimes from being prosecuted despite ample criminal evidence?
— Just anon 4 now
Dear Just anon 4 now,
You may be referring to an episode of Nancy Grace or Law and Order. If not please explain further by giving me an example of such a situation in Santa Clara County.
Forgoing an answer for now,
9. Regarding the worker who was arrested for child molestation at the Trace Elementary childcare center… it was reported in the Mercury News that this man was previously fired from a position at a local church because of an incident involving children, which went unreported to the police. Why aren’t charges being filed against the church for not reporting this incident that happened in 2007, which could have possibly prevented further abuse?
At this time there is no public description or detailed information regarding the defendant’s behavior or misbehavior in prior jobs. Please don’t assume that all misconduct is the type that a mandated reporter must act upon by reporting to law enforcement.
Thank you for caring deeply about the children in our community.
10. Will Mr. Robert Schiro who is accused of hitting two cyclists and seriously injuring one on the Saratoga-Los Gatos Road ever face trial for the charges of hit and run? This simple case has been stalled in the Court for over 450 days. Why are victims treated so poorly by the Court while defendants such as Mr. Schiro appear to be coddled at every turn?
Mr. Robert Schiro is facing trial for crimes (two counts of felony hit and run and driving on a suspended license) he committed in 2009. Below please find a case history that will explain and that the victims’ views were respected and that the defendant’s rights have been honored. The Constitution mandates that the Court honor the rights of the defendant and victims. I agree the road to justice has been a long one but this heartbreaking case is complex factually and legally. Hopefully the timeline below will help explain the procedural delays.
Pending 1.25.12 Defense motion to dismiss.
Pending 1.20.12 Trial discussions in Dept 30.
01.17.12 People need continuance to reply to motion to dismiss.
01.13.12 Defense motions for discovery and to dismiss.
01.04.12 Trial Setting – reset trial date for 1.17.12.
12.14.11 Trial date - reset for 1.04.12.
12.12.11 Trial date – Defense asked for continuance, witness unavailable.
11.07.11 Trial date– Defense Attorney II in trial.
09.06.11 Trial date- Defense made a motion to examine “new” evidence.
07.18.11 Trial date– Continuance.
06.06.11 Arraignment on the Information.
05.24.11 Preliminary Hearing – Held to answer charges at trial.
03.30.11 Motion – 1368 withdrawn, criminal proceedings reinstated.
02.28.11 Motion to substitute in Defense Attorney II was granted.
02.01.11 Defense Attorney I made a motion pursuant to Penal Code. section 1368 that the defendant was not competent to stand trial. Criminal proceedings were suspended.
01.10.11 Preliminary Hearing date setting.
11.12.10 Sentencing – Judge withdrew offer, defendant withdrew plea.
10.05.10 Sentencing Date – Probation requests continuance.
08.19.10 Defendant entered a plea of no contest based on a judge’s offer to which the victims and concerned citizens objected.
April 2010 Criminal Charges filed after exhaustive investigation.
April 2009 Crimes occurred.
Please continue to follow the progress of this case. I believe Schiro’s victims will see justice soon.