Chung: Criminal justice reform begins with charging reform

Can you imagine a hospital where doctors receive little to no training on diagnosing patients? Can you imagine doctors who leave little to no notes after diagnosing patients? No reasonable patient would tolerate such lack of training, standards and professionalism. Similarly, no reasonable person should tolerate such lack of training, standards and professionalism at the Santa Clara County District Attorney’s Office.

One of the most fundamental responsibilities of a prosecutor is deciding if and how to charge an individual with crimes. Charging decisions are extraordinarily important because they can affect people’s liberty and lives. Once initiated, a criminal case often develops relentless momentum until a plea bargain or a jury verdict is reached. Thus, it is critical that prosecutors exercise restraint in charging.

Sometimes, exigent circumstances require quick charging decisions for public safety considerations, but that is why having well-developed training, standards and professionalism for charging is so important—so that prosecutors can rise to the occasion when necessary.

In Santa Clara County, a failure of leadership under District Attorney Jeff Rosen has resulted in an utter lack of training, standards and professionalism when it comes to charging. In general, prosecutors in the office receive little to no training on if and how to charge individuals and are often left to their own whims. Updating and modernizing training and standards have not been priorities for DA Rosen in the last decade.

For example, the office’s policy and procedure manual is so outdated that it refers to ancient software (e.g., “CRIMES”) that the office does not even use anymore. Even the current software in the office (“CIBER”) is shamefully outdated and will not permit opening more than one document at a time (not unlike a microfiche reader). Of course, prosecutors in the office receive little to no training on how to navigate this labyrinthine software to issue charges.

Before working as a prosecutor in Silicon Valley, I worked as a prosecutor in New York City where I received extensive training on charging. For months, junior prosecutors in New York were trained in a live complaint room, learning how to read statutes and case law, evaluate facts and charges, collaborate with peers and supervisors, interview witnesses and suspects, request follow-up investigations and time-sensitive evidence and build provable cases—all before issuing any charges. Thus, I was shocked when I came to Santa Clara County and received almost no training in charging individuals under the California Penal Code and related statutes.

Given the lack of training and standards, it is not surprising that charging decisions were often haphazard and inconsistent within the office. DA Rosen praised prosecutors who issued mountains of cases, as if that were some valid measure of justice. Sadly, many issued cases failed to meet basic standards of professional responsibility and common sense.

Prosecutors often left little to no notes in case files about the facts and defendants’ criminal histories that led them to issue charges. Prosecutors who subsequently arraigned or handled those cases would have to re-review everything—an incredibly inefficient and ineffective process. Imagine doctors having to re-diagnose patients every time they are seen. Some prosecutors would even leave incredibly unprofessional notes, injecting personal commentary into factual summaries or revealing improper charging motivations. Even supervisors failed to maintain standards and applied improper pressures to extract pleas in weak cases.

Consequently, the quality and the credibility of prosecutions suffered. Cases quickly unraveled after initial charging once prosecutors actually started investigating, gathering evidence and applying basic standards. Misdemeanor cases, which are the most numerous and implicate the most people in our community, were often the most poorly issued. Based on weak evidence, poor investigations and superficial reviews, these cases were regularly and rapidly issued in an assembly line format by prosecutors not actually handling these cases, clogging the courts with bad cases that lingered for far too long.

Due to a lack of coordination and communication, prosecutors on different teams often would not know until much later that they were handling the same defendant or that new charges had been issued. Uncoordinated and delayed issuing of charges impeded speedy resolutions of cases, including obtaining restitution for victims.

Cases were often issued months after the fact without proper gathering of witnesses and evidence, resulting in prejudicial delays and loss of evidence. Justice delayed is justice denied, and Santa Clara County deserves better. Prosecutors should aspire to a higher standard, and when we issue charges, they should mean something.

The embarrassing unraveling of the recent gun-permit corruption case is a quintessential example of the lack of training, standards and professionalism at the Santa Clara County District Attorney’s Office with regards to charging. Ethical prosecutors would recognize and avoid basic conflicts of interest in charging. An ethical prosecutor’s office would train its prosecutors on conflicts of interest and have clear and updated written charging standards that everyone—including the DA himself—follows.

A lack of training, standards and professionalism regarding charging creates the perfect opportunity for overzealous and politically motivated prosecutions. A fish rots from the head down, and it is time for meaningful change. How do we begin reforming the criminal justice system in Santa Clara County? We can start by reforming charging. Injustice should be stopped at the beginning. That is how we will begin to heal this broken system.

Daniel M. Chung is on indefinite paid administrative leave as a prosecutor from the Santa Clara County District Attorney’s Office. He clarifies to San José Spotlight that this op-ed reflects only his personal views and that he is writing only in his personal capacity, not on behalf of or as a representative of Santa Clara County.