DA Jeff Rosen Answers Readers’ Questions

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?
— Thought

Dear Thought,

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.

Yours truly,
Jeff Rosen

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.

Yours truly,
Jeff Rosen

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.

Yours truly,
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,
Jeff Rosen

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?
— Justice

Dear Justice,

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.

Yours truly,
Jeff Rosen

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?
— Steve0

Dear SteveO,

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. 

Yours truly,
Jeff Rosen

14 Comments

  1. Regarding Jeff Rosen I’ve gone from ‘No Opinion’ to ‘Very Favorable’ in the space of 10 promptly, courteously, and cogently answered questions.
    First impression: This guy’s on the ball.

  2. DA Jeff Rosen says, “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”

    LLLLLLLLLLLLOOOOOOOOOOOOOOOLLLLLLLLLLL!!!!!!!! What a crock of fecal matter!!!!!!

  3. The link that was provided about the day care worker stated that he was fired in 2007 from a South Bay church after he reportedly was seen with an erection while holding a young girl in a swimming pool. If the Mercury News is not considered public information, I don’t know what is. I hope this DA is more thorough in reading his cases than he was in reading and answering these questions.  And I hope for damn sure that if that was my child, someone would report that incident, or criminially pursue those individuals who did nothing.

  4. Wow – DA Rosen picked 10 questions to answer then gave “non-responsive” answers to questions #1 and #8 and played a really weak game of symantics in #3 (esesntially : we both came the same conclusion about DeAnza but I handled it better…).

    Compare Rosen’s answer in #3 with his answer in #10!  His compassionate drive to appease those disappointed by Carr’s, State Atty General now Governor Brown and finally his own decision not to file criminal charges because, “…the District Attorney’s Office cannot prove that a crime occurred…,” rings hollow when you read the minute orders from the Schirro Case. What a guy!

    I really enjoy the way he answered #5 about Webby especially the part where DA Rosen says that Webby has been critical but makes an unsubtaniated claim that Webby has “…written many more articles…” that are positive.  Any hard numbers to back the claim up?

    Worse though is the comment that Webby will, “challenge us to better serve the public.” Really? Your office isn’t serving us well enough now that you hire Sean Webby to make it happen? 

    DA Rosen,  #8 “Jury Appeal.”  Save the wise cracks – if you seriously expect us to believe “jury appeal isn’t a factor in decisions to prosecute or not THEN YOU SHOULD RESIGN! 

    Short of that I’ll give you a specific: A current City Councilman decided to remove campaign signs for a ballot measure he publically opposed that were posted on private property.  It was reported that the matter was investigated by the polilce and the case was submitted to the DA’s office for review. If there was enough evidence to support a complaint for theft as it appeared that he overstepped the protections provided by the City’s sign Ordinance – was he not prosecuted because of a lack of Jury Appeal or his position as a public office holder – or both? (Why didn’t you select this question instead of #1 or #8)

    ahhhh….. what’s the use… Merc Selected…voters elected… WEbby will make it all right –

    Wait one last question ; I see Webby’s byline is on the MErc’s article on the heroic rescue of the 11y/o amber alert – will he be recusing himself from comment pro/con regarding the DA’s involvement in the investigation when he clears the background check?

  5. They say the Chief of Police and the District Attorney are both just political positions.  The answer to these questions illustrates how true that concept is.  I agree, a complete dodge on the question about jury appeal.  I have heard that very phrase repeatedly come out of the mouths of deputy district attorneys when discussing whether to try a case or not.  Let’s be honest, jury appeal is part of the equation when deciding whether a case is winnable or not.  Why not just admit that?  If the D.A. believes that prosecuting a case where the subject matter is of little to no interest to the jury pool will significantly reduce the odds of winning, that is a lack of “jury appeal” and is a legitimate criteria to consider.

  6. Jeff you didn’t answer my response.  I figured because the article was tagged with “Medical Marijuana” that it was an appropriate question to ask.

    I’ll try and write it more clearly.  This is my opinion, tell me what you think of it.

    I’m pulling state law from here..
    http://www.abc.ca.gov/trade/Penalty Guidelines.pdf

    Specifically, this:
    Commission of Crime Involving Moral Turpitude – 24200(a) B&P:
    Committed on premises Revocation
    Committed away from premises (petty theft/shoplifting) Revocation stayed 3yrs
    Committed away from premises (other than petty theft) Revocation
    Conviction of a crime involving moral turpitude – 24200(d) B&P Revocation

    And Moral Turpitude crimes can run the gambit (including assault).

    There’s also similar state laws in regards to pharmacies.

    http://www.pharmacy.ca.gov/enforcement/fy0506/ac052972.pdf

    So in regards to marijuana dispensaries… Given that they are very similar to bars (both dispense narcotics) or pharmacies (which have similarly drafted laws) should they beholden at a lesser standard than bars/pharmacies when it comes to crimes of moral turpitude?

    Jeff, I’m not worried about an answer here hurting my case one way or the other.  I think it’s a perfectly sane question to ask, regardless of pending cases because there is already laws on the books to support what I’m saying.

    I’ve done my homework.  So what’s your opinion?

  7. It is truly unfortunate that Rosen seems to think that Webby will provide some kind of unbiased view on the operations of the DA’s office. It is foolhardy to bring Webby into this position. Webby has already shown his inability to separate his bias against the police with any kind of journalistic integrity. Webby ignored arrest statistics to keep trying to falsely prove that there a culture of racial profiling by SJPD. Despite arrest stats that showed the vast majority of African Americans arrested were NOT San Jose residents, but out of towners who came to San Jose to sling dope. Webby kept beating the drum of racial profiling. While San Jose used PC 647f to charge public drunks and other cities used a municipal code section, Webby continued to accuse San Jose of racial profiling, despite the overall numbers charged (using the various codes sections for public intoxication) in these disparate cities were nearly the same. He didn’t care because it didn’t match his single minded bias.

    How can Rosen seriously think that Webby, who has repeatedly shown this entrenched thinking, will suddenly abandon it and become insightful? Rosen may have actually laid the groundwork for his own loss in the next election. I doubt very few PIO’s from local agencies are going to want Webby’s presence as a representative of the DA’s Office. He cannot be trusted because his loyalties lie elsewhere.

  8. DA Rosen:

    I’m sorry for my delayed response.  I spent the entire weekend catching up on the Nancy Grace episodes that I had recorded.  The NFL has nothing on her. 

    Seriousness aside, I posed the question because I thought the blogging community might find the concept of “jury appeal” to be interesting and one that would further more comments.  A topic of discussion that just might blur into the concept of plea-bargaining and how much power and discretion the DA’s office has when it comes prosecuting crimes.

    Example: Prostitution in Santa Clara County.  I have heard the jury appeal is just not there.  The general public, the jury of your peers and the 12 people sitting in the courtroom just find it hard to convict on these cases.  Perhaps they see it has two consenting adults with no real victims.  Yet the elements of the crime exist but the DA’s office decides not to prosecute due to the “jury appeal”.  Is it right that the DA’s office thus becomes the “Judge and Jury” (so to speak) by not pursuing criminal charges on a crime that has, with out a doubt, been committed.  Or is it in the best interest of our community that time and energy not be wasted on a crime with very poor conviction rates. The “winnability” factor I guess we can say.

    So how much of this mind set plays into other cases?

    Example:  A drunken patron gets angry with a bouncer.  He is thrown out of the bar but not before pulling out a knife and severally disfiguring the bouncer for life (the face).  The suspect is a first time offender with deep pockets.  Does this lessen the “jury appeal” and “winnability” of the case thus resulting in a lesser charge? Or is this called plea-bargaining, which is played out in courtrooms in this country on a daily basis?

    Example:  A group of college boys have sex with a drunken college girl.  Does her level of intoxication diminish the “jury appeal”? 

    Example:  An elected official is caught stealing campaign signs.  Does his elected position diminish the “jury appeal”?

    Mr. Rosen I don’t expect you to write a thesis on the topic.  I just wanted to read some of your quick thoughts on the topic.  Thank you for taking the time to share your thoughts.  I have to go now I’ve already missed 5 minutes of Judge Judy.

  9. Mr. Rosen,

    You inherited me and my problem and along with it the very people who should be helping me and are not.
    Out of the almost 3 years I have been trying to get help from this office..things have gotten worse not better.
    I finally managed to get to one person who at least asked my side of the story and unfortunately I did not get to answer his questions with my proof because after days at the computer I developed carpal tunnel syndrome..so when I could face the computer again..and since I am deaf mostly use it to comminicate..I asked for help again ..the gentleman’s boss wrote and told me so many untruths..she does not have a clue—- so I assume since she did know what was going on after all this time and still does not because will not accept the proof from me..so she can decide..and mainly she has told the gentleman that he was not to answer me.

    So unfortunately your “I want the people of Santa Clara County to know I work for them.”
    I fear if I am any kind of example that it has not gotten down that far on the ladder so those you inherited continue on the same path—unfortunately for me and probably others.

    Apparently Perhaps you need a new broom!!I have several suggestion who it should be used on.

    I wish you good luck in your endevour and hopefully those who are paid to help and maybe even understand..just might do so..

    Thank you for your time and good luck.

    I would happyly send you all my proof if I thought you or Mr. Boyarsky would look into the matter.

    Otherwise I am just beating a dead horse in this office..

    Please, help. and of course I am sure this will not get put on this page..but hopefully will hear from one of you..and getting to either of you is hareder than getting into Fort Knox..personally..
    Thanks..and good luck.

  10. You failed to answer the most important part of Steve OP’s Question (#10): “Why are victims treated so poorly by the Court while defendants such as Mr. Schiro appear to be coddled at every turn?”

    It was in the mid-1980’s that California’s first so-called victims’ rights bill was passed, yet to this day victims continue to get the shaft from the system, while defendants have a panoply of “rights”. Justice delayed is justice denied.

    Mr. Schiro was drunk, and hit bicyclists in April 2009—almost four years ago, and yet he has yet to face the music.  I understand he had prior DUI’s, as well, and had no valid driver’s license at the time of his latest crime.

    His car should have been confiscated. We need a law that requires DMV to publish a list of all persons whose license to drive has been suspended, and that they email it to every new and used car dealer in the state; and it should be made a crime to sell a car to an unlicensed driver.  Maybe Joe Simitian can add that to his There Oughta Be A Law list

      The courts need to stop coddling these defendants.  The People, and the victims, should also have the right to a speedy trial.  It is up to your office to push hard for that outcome.
    Your list of what happened in court(in reverse chronological order) was an insufficient response.

    • Couldn’t agree with you more. Just because Schiro has buckets of money does not mean that he should be allowed to play with the justice system. He needs to be dealt with in the same manner as he has been dealing with his tenants (RPS Properties) who could not make rent. He was ruthless with them and didn’t stop until they were forced into bankruptcy. Even in BK court his lackey would show up to contest the case. He needs to rot in hell.

  11. I could understand Public Defender Mary Greenwood hiring Sean Webby as a PIO, but the D.A.‘s office?  If I were a cop, I’d be pissed.

    So, now Raj Jayadev has a mole in the D.A.‘s office.  Wonderful!

  12. I guess since I posted after the the 13 were answered..the rest of us will not e answwered..Will there be more chances to hopefully have DA Rosen answer more questions??

    I did not realize that this page only lasted a week..I do think it would be nice if you stated at the beginning that no more questions would be answered..

    Will there be further possibilites to get DA Rosen to answer more questions??

    Thank you..I was looking forward to his answer. but guess expected too much..so far have been very disappointed in treatment received by DA’s office with one exception.too bad there are not more like the man.