Commentary: New Quota System for DA's Office

One of the most frequent complaints about the Yolo County District Attorney's Office under former District Attorney David Henderson had been the intractability of their prosecutions. Far too many minor cases were pursued well beyond the point that they should have. The District Attorney's office often failed to adequately use discretion in which cases to prosecute. And they would be extremely reticent to drop even cases that they either could not win or should not pursue. We can see those practices at work in three fairly high profile cases--the Buzayan case which was dismissed by a Judge, the Khalid Berney case which was dismissed after a judge forced the prosecutors to reintroduce their evidence, and the Bernita Toney case where the Jury acquitted the defendant.

A more reasonable prosecutor's office would not have pursued convictions in this questionable cases to begin with. In two of the cases, they were pursued because of orders from the command and leadership structure to the Deputy District Attorney that they must obtain a conviction and under no condition could they drop the charges.

This practice does not serve the public good from a fiscal or policy standpoint. The District Attorney's Office is to represent the interests of the state in pursuing criminal prosecutions. Often, they mistake that for being a prosecution machine where their job is solely to gain convictions rather than pursue actual justice. Sometime justice requires strong prosecutions to put dangerous criminals behind bars and protect society. However, at other times that means using discretion to realize when the public interest is better served by dropping poor cases against individuals who pose no threat or against whom the cases are weak and questionable to begin with.

It is within this framework that newly elected District Attorney Jeff Reisig enters the picture. Reisig of course came with the support of David Henderson as well as most of the deputy district attorneys in this county. That said there was some hope that policies would change. The evidence so far indicates that the policies have not changed.

One clear example is the establishment of a new bulletin board that tracks the progress of cases. Deputy District Attorney's get their names placed on the board as the case enters the system and they get their case tracked to an inevitable acquittal or prosecution. The implication is that those with the most prosecutions are doing the best job. In some ways that sounds like a good incentive.

However, the logical conclusion of this policy is the creation of a quota system. This leads to an inevitable continuation if not exacerbation of the current problems in the system.

First, those Deputy District Attorneys with many cases will be looked at more favorably than those with fewer cases. This means that there is an unstated incentive to get more cases onto the board by pursuing prosecutions rather than dropping charges.

Second, those Deputy District Attorneys with more convictions will look more favorably than those with fewer cases. This means again that there is an unstated incentive to obtain more prosecutions. Again this means that there is a disincentive to drop the charges or the case when it is clear like the cases mentioned above that there is a weak case or no strong compelling public interest to pursue charges.

The implication of this is that those Deputy District Attorneys who pursue more cases and obtain more convictions will be promoted, awarded, acknowledged and that those with fewer will not. Thus an unstated quota system emerges from this practice.

Why is this a bad idea? Statistics can be a measure of good performance on the part of prosecutors, however, they can always indicate dogmatism that serves neither the defendant nor the public interest.

We can use a clear example of police quotas for speeding tickets. Is the officer with more speeding tickets issued doing a better job or is he simply pursuing a greater frequency of marginal cases in order to increase his statistics?

The use of such incentives structures moves us in the wrong direction. It is clear that Jeff Reisig is continuing his predecessor's questionable prosecutorial discretion and in some ways even outdoing it. Yolo County needs to rethink its policies in this area because a lot of people are unfortunately getting caught in the crossfire and most do not have the resources to fight it.

---Doug Paul Davis reporting

Reisig's Failure to Disclose Exculpatory Evidence

Part of the current controversy swirling around Michael Nifong and his prosecution of the Duke lacrosse players on what now appears to be trumped up charges of rape, was his failure to disclose exculpatory evidence. He basically failed to report DNA results that demonstrated that there was no evidence that the Duke lacrosse cross players had raped the victim. More damaging is the charge that he did so knowingly. What may be of concern to Yolo County residents is that the newly elected District Attorney of Yolo County has had previous rulings against him for the exact same charge--failure to disclose exculpatory evidence.

A recent article in the People's Vanguard of Davis, scrutinized the Yolo County District Attorney's Office what appears to be malicious and discriminatory prosecution of a Clarksburg Farmer. This case coupled with the Duke allegations remind us that it was a previous case where we discover the very serious misconduct on the part of Mr. Reisig.

In 1999, a jury found a Woodland man guilty of using a firearm in the commission of an a threat to commit great bodily harm. The man was sentenced to five years in prison but had that sentence suspended and was placed on probation under a variety of conditions including that he serve 250 days in the county jail.

However, the defendant challenged that sentence on the basis that the prosecution knowingly withheld material exculpatory evidence. Mr. Reisig's defense was that this was inadvertent.

The basic problem was that in this case, the victim never saw a gun when the defendant threatened to shoot her and yet the prosecutors sought a firearm enhancement charge. The jury during the court proceedings twice sent notes to the court concerning the question as to whether the object was actually a firearm (a necessary conditions of this enhancement is that the object actually be a firearm).

One of the key questions that arose after the trial by the jury was whether or not a vehicle had been searched for the gun in question. This only surfaced after the trial in an inadvertent conversation between a juror and Mr Reisig. The juror asked him if the car had ever been searched and Mr. Reisig said that he believed so. The defense attorney came out about the same time and heard that the car had been searched and no gun had been found.

It turns out that the vehicle had indeed be searched and that no gun was found. This information never made it to the jury during the trial. Nor was it given to the defense.

Based on this new evidence, the defense requested a new trial on the grounds of newly discovered evidence and prosecutorial misconduct--the withholding of exculpatory evidence. The trial judge denied this motion arguing that there was no probability that the jury would have come to a different result "even if this additional information had been presented."

This decision was appealed and the appellant judge overturned the ruling and the conviction.

According to the law, the prosecution must disclose evidence favorable to the accused regardless of whether or not the defendant specially requests the evidence.

Moreover, the evidence must specifically be material to case--in the sense that its suppression potentially changes the outcome of the trial. In this case, the victim never saw a gun but only an object and at least one of the jurors questioned whether even the current evidence was sufficient to prove to prove that the defendant actually possessed a gun (a necessary condition for the enhancement).

The judge ruled that "the duty to disclose this evidence was the exclusive responsibility of the prosecution..., whose failure to do so violated defendant's right to due process of law."

"In sum, the prosecutor violated defendant's right to due process by failing to disclose to the defense the existence of material exculpatory evidence pertaining to the issue of whether defendant used a firearm while threatening to shoot the victim."

The judge ordered that the firearm enhancement was to be reversed and a new trial. The prosecution then dropped the firearm charge at the subsequent trial and the defendant was given probation.

Unfortunately, this is just another example of how the Yolo County District Attorney's office operates and unfortunately this was a case involving the newly elected District Attorney Jeff Reisig.

---Doug Paul Davis reporting

More Information About the District Attorney’s Office in the Khalid Berny Case

On January 3, 2007, we reported on the prosecution of Khalid Berny. There was another part to the story that we were informed of at the time of the original interview that could not be run until it was verified by those involved. It has now been verified by at least two and sometimes more sources.

It seems that both Yolo County Deputy District Attorney Deanna Hayes and her immediate supervisor Yolo County Deputy District Attorney Steve Mount at various points in time expressed concerns about the case. Deanna Hayes at this time was a probationary Deputy District Attorney. Steve Mount was her immediate supervisor. His supervisor was Deputy District Attorney Ann Hurd (who is now the No.2 person in the department). Robert Day who is now retired, was No.2 under recently retired District Attorney Dave Henderson.

DDA Hayes prior to the trial told a source that she did not want to embarrass herself in court with a goat case, and that she was ready to drop the case if Mr. Berny gave her a check to cover the cost of impounding his goats.

However, DDA Hayes changed her mind apparently on the day of the trial and threatened Mr. Berny with 60 years in prison.

The source became angry that they were told one thing on Friday and the opposite occurred on Monday. So they called a member of the District Attorney’s office to find out what happened.

Mr. Berny played the following message that he captured on tape from one source:

"Hayes stated that her supervisor said that they required that Hayes get a conviction out of it, even though Hayes expressed her concerns about getting a conviction.”

Moreover, they said, “it clear to Hayes that she had to get some form of conviction out of it.”

Furthermore, DDA Hayes added charges: “apparently Hayes did more research in the case and found out that there were complaints from my neighbors, vineyards that were destroyed and tens of thousands of dollars of damages that my neighbors were claiming and that I had to pay restitution to my neighbors..."

According to Mr. Berny’s neighbor, there was no damage and he is outraged that people are falsely using his name and property to “justify their criminal activities.”

According to those involved, Deanna Hayes as a newly hired Deputy District Attorney was highly unlikely to concoct the story herself. More likely, this came from either one of her superiors or the Sheriff’s Department itself.

Moreover, Steve Mount who was the head of the misdemeanor division, told witnesses that he wanted nothing to do with this case and he did not want his name mentioned in association with the case.

Deputy District Attorney Mount however may not be completely candid as he reportedly has a reputation for pushing attorneys to press forward on very weak cases regarding other aspects of the law. Fearing that he would be named in the lawsuit may have given him reason to attempt to distance himself.

On the other hand, we could just as easily go up the chain of command where Ann Hurd, Robert Day, or even then Yolo County District Attorney Dave Henderson himself could have pushed a trial attorney forward even though they believe they could not prove the case. From several sources that I have talked to, this appears to be a characteristic of the Yolo County District Attorney’s Office that is not the case in other jurisdictions.

While this does not resolve the puzzling question of why this case was pushed forward, it does shed some light on the fact that pressure being put on a young and inexperienced Deputy District Attorney perhaps both from Yolo County Sheriff’s Department and from her supervisors. They wanted her to get a conviction and she perhaps felt that she could not or even should not press forward.

---Doug Paul Davis reporting

Seven Early Stories for Davis in ‘007

At the end of 2006, we covered the top 10 stories in Davis for 2006. In today’s blog entry, we will look ahead to some of the stories brewing as the largest for the first part of 2007. As always, new stories will undoubtedly arise at a seconds notice, but the People’s Vanguard of Davis already has a full plate. These are just some of the stories we plan to be covering in the ‘007.

Open Seat in the 8^th Assembly District

Outgoing Incumbent Lois Wolk's (D-Davis) third and final term as Assemblywoman for the 8th Assembly District of California has barely begun and the speculation for her replacement has already started. In a district that is heavily tilted toward the Democrats, the primary winner will for all practical purposes determine who becomes the next Assemblymember for the 8th Assembly District.

The gauntlet has been thrown down by Woodland Daily Democrat Editor Jim Smith in his blog:

Posturing is taking place right now between supervisors Mariko Yamada and Mike McGowan and West Sacramento Mayor Chris Cabaldan. The word from Assembly speaker Fabian Nunez is that it’s “Chris’ turn” for the 8th District seat. McGowan, an attorney who represents West Sacramento, may be given a judgeship to keep him from seeking higher office. Yamada, if she stays true to the Democratic Party, could have her chance by 2014.

It seems that Nunez has jumped the gun a bit here. Yamada would be an extremely formidable candidate if (and that's still a big if) she chooses to run. Cabaldon is not without baggage of his own. He is unpopular with the unions for bringing Wal-Mart to West Sacramento and for supporting anti-union positions on a variety of issues. He has upset a lot of Democrats for supporting development interests rather than neighborhood and constituent interests.

The race for 8th Assembly District is far from over and the race will be decided on the west side of the Sacramento River, not the East Side.

Continuation of Law suits against the Davis Police Department and Yolo County District Attorney’s Office

At least two major lawsuits have gone forward against the District Attorney's Office in November 2006.

Last week, we reported about Khalid Berny, a farmer from Clarksburg who is suing both the Yolo County and the Yolo County Sheriff's Department and Animal Control. This is an amazing case that stems from allegations that Mr. Berny intentionally allowed his goats to run at large. For this horrendous crime, Berny faced 170 misdemeanor charges which carried a maximum sentence of 60 years in prison. Mr. Berny's case was dismissed after a last minute recusal by Yolo County Judge Timothy Fall brought retired Judge Bill Lebov into the case who then oversaw the dismissal of all charges against Mr. Berny. Through a civil lawsuit, Mr. Berny now charges Animal Control and the Sheriff's Office with discriminatory enforcement of the law based on the severity of the punishment inflicted on him in comparison with others for similar offenses. In addition, Berny is charging the Yolo County District Attorney's Office with malicious and discriminatory prosecution. Prior to the dismissal of charges in Judge Lebov's court, Yolo County Deputy DA Deanna Hayes had offered to drop the charges in exchange for Mr. Berny dropping his suit against the county--an offer that Berny refused.

Along similar lines, one of the top stories from last year, is the case of then 16-year-old Halema Buzayan who was arrested for an alleged bumper bender in a Davis supermarket parking lot in 2005. Ms. Buzayan, who is now a freshman at UC Davis, and her family are suing the Davis Police Department including former Chief Jim Hyde, Former Internal Affairs Sgt. Gina Anderson, and Officer Pheng Ly for a variety of offenses. In addition, they are suing the Yolo County District Attorney's Office and the Davis Enterprise newspaper.

Some of the most troubling aspects of the case are: Internal Affairs Sgt. Gina Anderson during her interview of Halema Buzayan (while supposedly conducting an internal review of the actions of Officer Pheng Ly), allegedly threatened her mother with jail if Ms. Buzayan did not confess to the crime. The Yolo County District Attorney's office after the case was dismissed, illegally leaked the arrest tapes to the Davis Enterprise, thus violating juvenile confidentiality laws. The Davis Enterprise not only published the story on the tapes, but posted the tapes on their website, in the process releasing confidential and private information about the Buzayan family but also the victim, Ms. Adriene Wonhof. The District Attorney's office then continued their smear campaign against the Buzayans into May, with Deputy District Attorneys Tim Wallace and Clinton Parish claiming that the Buzayan family paid off Ms. Wonhof to keep her from testifying. Finally, Bob Dunning, a Davis Enterprise columnist got into the act with a long interchange with the ACLU and attorney Bill Kopper. For more on the Buzayan case, please view the video from KGO ABC News 7 in San Francisco.

Ironically both Mr. Berny and the Buzayans filed their court cases in early November and will be proceeding during the course of the year.

Anti-Gay Harassment of the Junior High School Student

Last November, the People's Vanguard of Davis broke the story of a thirteen-year-old Harper Junior High School Student was being harassed because he has two Gay fathers. For good background see the following video clips: Father Speaks at City Council Meeting, Father Speaks at School Board Meeting, and the ABC News 10 in Sacramento report.

There are new revelations coming out tomorrow on this case. Check out the People's Vanguard of Davis first thing tomorrow.

Closing Down of the Valley Oak Elementary School

On Saturday we reported that the Davis Joint Unified enrollment projections were not looking good in terms of the issue of school closure. Neighbors seeking to keep Valley Oak Elementary School open cited possible future development projects as a possible source for future students. This argument was dismissed by the school board, claiming that they should not take into account development plans that are not yet approved. On the other hand, Baki Tezcan pointed out it is "ironic that after counting [the expected population growth] for [the unapproved] Covell Village [development] in building Korematsu, now they [the school district] say they cannot count for something that does not exist even though it will not require a city-wide vote and will probably happen in due course and produce new students in need of a school to go." The decision on the closure has not been made, but parents are concerned about the loss of a neighborhood school in one of the lesser affluent neighborhoods. This figures to remain a very hot issue for 2007.

Writing of the new general plan

In December 2006, the council moved forward with a plan that would create a steering committee to help draft an update to the city of Davis' general plan. This drew a strong and contentious debate between the council majority faction and the progressives Mayor Sue Greenwald and Councilmember Lamar Heystek. And this was just over a procedural issue that would create a 15-member committee comprised of three appointees per council member. The moment of absurdity occurred when Mayor Pro Tem Ruth Asmundson complained about the use of the world "surrogate" being used to describe the members of the proposed commission. Our crack team of lexicon experts however, surmised that this was a correct usage of the term and it did not have a pejorative connotation at all.

One of the issues that the Vanguard figures to follow is one of affordable housing. This comes amid a report that the average family in Yolo County must earn around $17.50 per hour to afford the average two-bedroom apartment. We have also been told that the Eleanor Roosevelt project which was supposed to be provide affordable housing to seniors, has laid mostly vacant due to some rather severe restrictions.

Continued Harassment of Area Minorities by the Police

In May of 2006, 150-200 UC Davis Students Marched on the Davis Police Department complaining of racial profiling and harassment by certain members of the Davis police department. Racial profiling and police oversight were among the large problems of 2006, and the year of 2006 ended the way it begun. We have a video clip of an African American resident getting harassed once again by the Davis Police, this one was caught on tape.The basic problem that faces Davis is a practice of "phishing" by the Davis Police whereby they spot a vehicle that does not appear to "belong." It might be old or poorly maintained. The police officer then looks for a pretense to pull the person over--sometimes it is real as in the case of the video above, other times it may be suspect. In any case, they are looking for people they believe might be gang members, wanted criminals, or on probation. They are using these minor stops as a pretense to see if they can make a big arrest.

Davis hired an Ombudsman in 2006, but that will not put this problem to a rest. Policies must be changed and that will be a large part of the focus in 2007.

New District Attorney for Yolo County

Today, Monday January 8, 2007, the new District Attorney of Yolo County will be sworn in. As we wrote last week, Jeff Reisig faces a formidable task with a department heavily under investigation, many of whom are facing actions in law suits. Reisig faces his own questions with regards to the gang injunction in West Sacramento. That case comes up for appeal in April. Moreover, the Buzayan and Berny cases cast a lot of scrutiny on the actions of the previous District Attorney David Henderson as well as a number of people who currently work as Deputy District Attorneys including a large number of strong supporters of Jeff Reisig. On KDVS, Ron Glick was arguing that we should wait and see how the new DA does, but he has a tough task ahead of him and that will be a large focus of the first part of '007.

Look forward to further coverage in '007 of these stories and much more, here on the People's Vanguard of Davis.

---Doug Paul Davis reporting

Sunday Evening Briefs

Well Wishes to Kingsley Melton

I wanted to send out well wishes to Kingsley Melton who was seriously burned down in San Diego on his way to a winter vacation. Kingsley is the son of public defender Barry Melton and active in politics and the community himself.

Davis Enterprise Poll on Iraq

I was looking the latest "poll" in the Davis Enterprise. I haven't taken their polls very seriously since I saw the manipulation that occurred with the one last July pertaining to the Human Relations Commission. Assistant Publisher and Editor Debbie Davis was informed of this manipulation, she acknowledged problems with the polls, and yet the poll results were still published in the paper with no explanation.

Nevertheless this one was somewhat interesting.

This question is:

"Do you think President Bush's plan to increase U.S. forces in Iraq will help bring a quicker resolution to the conflict?"

I was thinking about this, I ended up voting "no." But in honesty I think the answer is yes, but in the opposite direction that the President hopes. I think it will speed up the ending unfortunately because it will place more of our brave troops in harms way. The Iraqi security forces added 70,000 or so troops to Baghdad in late June. July became the largest month casualty-wise in Iraq. Why? Because they put some many people in harms way. And I fear this is what is going to happen now. So I'd like to vote yes, because I think that would be the straw that ends this war. But I couldn't in good conscience, because most people would interpret it the opposite way.

Regardless, it is nice to see the Democrats at least verbally applying some resistance to this new plan.

KDVS Broadcast

I wanted to thank Richard Estes and Ron Glick for having me on their show on KDVS "Speaking in Tongues." We had a great conversation mainly on the Junior High School harassment story, the Buzayan story, and the Khalid Berny story.

If you would like to hear that broadcast click on:

MP3 Stream (56kbps, dial up)
MP3 Stream (128kbps, dial up)

Make sure you select the top tab which should be for the January 5, 2007 broadcast.

Senior Citizens Commission Meeting

While I am not completely certain what this item is about, I was directed to the Senior Citizens Commission agenda.

Item D under new business reads: "Review and discuss information related to the Internet blog" Vanguard"

What they will be discussing, we shall find out.

---Doug Paul Davis reporting

Changing of the Guard (at the DA's Office) or More of the Same?

Monica Krauth of the Woodland Daily Democrat writes a story today on District Attorney elect Jeff Reisig taking office. Apparently the biggest challenges that the DA's office will face are the murder cases of Ramirez and Garza and also the Reisig imposed Gang Injunction.

No mention that Henderson's office suffered from a number of ethical complaints.

No mention of the pending law suits against the DA's office most notably from Halema Buzayan and Khalid Berny, who in separate incidents have accused the District Attorney's office of selective and malicious prosecution.

Reisig will indeed face many challenges, but none of those external challenges may compare with the task he has to perform in cleaning up his own office--an office that he was a part of and an office that almost unanimously backed his candidacy for District Attorney in June's Primary Election.

Like elsewhere in the country, the rule of law is being imposed often at the expense of civil liberties. No one wants crime to increase, no wants to have to live with gangs. Everyone wants safety. Those are not the issue.

The question is one of ends versus means. Do we accomplish a reduction of crime at the expense of our own liberties? Do we accomplish a reduction of crime more to the point at the expense of the reduction of those people who lack the resources to fight the charges against them.

The one thing I keep coming back to over and over again, Halema Buzayan's father had the resources to fight her treatment. How many other people in her position are not so lucky? Khalid Berny likewise had the resources to fight his prosecution. How many other Khalid Berny's are there out there that we just haven't heard about because they lacked the means to fight unfair prosecution?

Why are the local papers giving the District Attorney's Office a pass on these issues?

---Doug Paul Davis reporting

Khalid Berny: A Case of Discriminatory Prosecution by the Yolo County District Attorney

On July 26, 2006, Lauren Keene of the Davis Enterprise wrote a story about a Clarksburg farmer who was accused by the Yolo County District Attorney’s office of allowing his goats to roam “at large.” The District Attorney charged Khalid Berny with 170 misdemeanor charges—charges for which he would have faced 60 years in prison for had the District Attorney’s Office not dismissed the charges.

As it turns out, the Davis Enterprise did not do justice to this story. The story that follows comes from an interview the People’s Vanguard of Davis had with Mr. Berny. By far the most impressive thing about this story is that at every step along the way, Mr. Berny provided me with full documentation to authenticate and verify his claims.

Khalid Berny began not as a goat farmer, as the Davis Enterprise suggested, but rather as a fresh fruit and vegetable farmer. Vandals however destroyed about 40 acres of alfalfa on November 24, 2002 with the Sheriff’s office doing little to investigate or prevent this loss of damage. There was also a seizure of horses dating back to May 2003. At which point, Berny went to Europe for three months and returned to a field that could not be harvested.

It was then with the consent of Yolo County Agriculture Commissioner Rick Landon that Berny purchased goats as means for biomass reduction.

On August 31, 2004, Khalid Berny received his first citation for 40 goats being at-large. According to Mr. Berny, “they did not follow the proper procedure established in the Yolo County Code.”

According to Section 1-5.04 of the Yolo County Code:

“The Enforcement Officer shall issue the Responsible Person(s) a Courtesy Notice by service in the manner provided for in section 1-5.05. The Courtesy Notice shall identify the Violation(s) at issue and the steps required for compliance. In addition, the Courtesy Notice shall state that it is being provided as a public service for the purpose of advising the recipient of the requirements of the County Code and the means to achieve prompt compliance. The Courtesy Notice shall also state that compliance is required within fifteen (15) days, unless a shorter compliance deadline is necessary in the judgment of the Enforcement Officer because the violation presents an immediate public health and safety hazard.”

Furthermore, "If the Responsible Person fails to correct the Violation, a subsequent Administrative Citation may be issued for the same Violation. " However, that is only if the owner fails to correct the violation. In this case the prescribed procedure was clearly not followed. There was no courtesy notice, only a citation for 40 misdemeanor counts plus a $102 fine per goat.

On September 16, 2004, Mr. Berny received another citation, this time for 80 goats being at large. And finally on September 25, he received his final ticket, for another 50 goats being at large.

The final violation occurred after an accident with a tomato truck put Mr. Berny in the hospital. “I was rear ended by a tomato truck in front of my ranch on the 17th at 7:10 a.m.” He was taken the hospital and at 10:00, “animal control got a call from another CHP officer stating that my goats are at large and are told that the owner of the goats is in the hospital. They start impounding my goats, drowning 6 in the irrigation canal, killing 2 more in transport to Woodland.” Mr. Berny showed me a picture of the dead goats lying next to the irrigation canal.

At this point, Mr. Berny faced 170 counts of at-large goats, which included a $102 fine per goat and up to 60 years in prison.

It turns out that this is not the usual way for animal control to handle a situation of at-large goats. One of his neighbors in a sworn deposition, for example, stated that his goats had escaped twelve times in the month of June 2004. He got eight calls from animal control and was given no citations from Yolo County.

Another neighbor, in 2001, got a citation for 900 goats being at large. In addition, he failed to appear in court. He received an $81 fine total for his 900 goats being at large (Mr. Berny showed me a copy of the citation) and a $250 fine for the failure to appear. Berny on the other hand, had his fine of $102 per goat plus he faced misdemeanor charges for the violation.

At this point, the FBI was called in to investigate apparently for differential and discriminatory prosecution. (I have a FOIA request into the FBI, but I have not received confirmation on this yet.) At the same time, Mr. Berny filed a lawsuit against the county for harassment and discriminatory prosecution.

Similar to what we saw in the Buzayan case, the District Attorney offered in writing to drop the charges against Mr. Berny, in exchange for Mr. Berny dropping the lawsuit. Judge Mock, who we have pointed out is married to the Chief Deputy District Attorney, was aware of this offer but refused to intervene. Recall that Mock is under fire in another case because of his marriage to the Chief Deputy District Attorney. We ran a couple of stories on the appearance of a conflict of interest, this is the first tangible evidence that that charge may have some merit.

The Deputy District Attorney in this case, Deanna Hayes, was asked by a colleague as to why this case was being pursued, she falsely contended that Mr. Berny’s goats caused tens of thousands of dollars of damage to the adjacent property. A claim, strongly disputed by Mr. Berny’s neighbors. Hayes was also given strict orders from her boss not to drop the charges or settle.

The presiding judge in this case was Judge Fall. Fall made several critical decisions that placed Mr. Berny in deep legal jeopardy. First, he ruled that this was a case of strict liability. According to two legal precedents, in order for at-large livestock to represent criminal negligence, which is the allegation here, the 1922 Poole v. Clover case ruled that the owner needs to know that his livestock is at large and they must do nothing about it. In all three cases, Mr. Berny was not aware his livestock were at large and moreover in the last one, he was in the hospital. A more recent U.S. v. Semenza from 1987 ruled that there must be “intent.” That the owner must “willfully” permit the animals to run at large.

Furthermore, Judge Fall denied Berny a motion for discovery under Murgia that would have presented evidence to show discriminatory enforcement by the District Attorney. Fall would in fact, forbid the use of discriminatory prosecution as any kind of defense.

Defense Attorney Matt Gonzalez (who also represents the Buzayan family among others) at this point appeared willing to concede defeat and prepare for appeal, when suddenly Judge Fall who had played hardball with the defense the entire time, disqualified himself under California Code of Civil Procedure 170.1.

I have been told that this is extremely unusual basically this means that the judge either has “personal knowledge of disputed evidentiary facts concerning the proceeding” or he “believes there is substantial doubts as to his or her capacity to be impartial.” What is striking is the point at which he recused himself. He did not do it at the onset, but rather a fairly late stage in the proceedings.

The new judge was Judge Lebov—a retired Judge appointed by Jerry Brown. Lebov has a strong reputation as a fair-minded judge. He threw out all of Fall’s procedural rulings and forced Deanna Hayes and her boss Steve Mount to begin their prosecution from scratch. They would have to prove strict liability and discriminatory enforcement could be used as a defense.

It was at this point, that Hayes and Mount would formally apologize Mr. Berney and dismiss the charges on July 25, 2006. Mr. Berny on November 2, 2006 filed a lawsuit against the Sheriff’s Department and Animal Control. (It should be noted that animal control is under the auspices of the Yolo County Sheriff’s Department and that Sheriff Ed Prieto signed off on a number of these documents.) He has now added the District Attorney’s Office to the lawsuit for selective and discriminatory prosecution.

---Doug Paul Davis reporting

Friday Briefs

Programming note

In the last days of this year, we will have our year in review where we present the top 10 Davis Political Stories of 2006.

Khalid Berny

The first week of January, the People's Vanguard of Davis will have a full exclusive interview with Khalid Berny. Berny is a Clarkburg resident accused of allowing his goats to roam at-large--charged with 170 misdemeanor accounts.

One of the most interesting aspects of the Berny case is once again, we have the Yolo County District Attorney's office suggesting that if Mr. Berny dropped his civil lawsuit against the Sheriff's Department, the District Attorney's Office would drop criminal charges against Mr. Berny. This was similar to Deputy District Attorney Patricia Fong who justified the prosecution of Halema Buzayan because the family was planning a civil suit against the Davis Police Department.

We'll have the full story in January, but people need to start asking tough questions about the operation of the Yolo County District Attorney's Office.


Letters...

Editor,

Recently the National Public Radio stations broadcast a program about volunteers who provide respite services for the caregivers of homebound frail elderly. For listeners who live in Yolo County, this might have sounded familiar. Citizens Who Care Inc. of Yolo County (CWC) has been providing this service to hundreds families since we began as a local non-profit volunteer agency in 1988.

In fact, volunteers of CWC were assisting elders as early as 1975 under the umbrella of the county Mental Health Association. Especially during the holiday season, the stress on caregivers is great. A little time off can lift the burden a little, offering a chance to do errands, visit others, or simply rest. In an angry and problem-riddled world, here is something everyone can do to help others and strengthen families. It makes the whole community a stronger and better place. Call to volunteer, to make a donation, or buy a ticket to our Winter Concert fundraiser on February 17 & 18. Our phone number is 758-3704.

You will feel good knowing you have made the holidays brighter for our elders and their families.

Ken Wagstaff
Executive Director
Citizens Who Care

All letters or guest commentary should be sent to: dougpauldavis@davisvanguard.com

Stunning Poll on Iraq:

Withdrawn on a fixed timetable: 52%
Kept in Iraq to secure the country: 26%
More troops should be sent: 12%

---

Source: Times/Bloomberg poll

The significance of this poll is that only 12% of Americans polled support increasing troop strength in Iraq. I don't know if I've ever seen a poll where public opinion is running 78-12 against a policy that the President seems to be proposing. The president may be leading but no one is following him.

---Doug Paul Davis reporting