DA says law tilts toward law enforcement
Tony Serrano, left, brother of shooting victim Yanira Serrano, greets San Mateo County District Attorney Steve Wagstaffe before a community meeting in 2014. Wagstaffe did not charge the deputy who shot Yanira Serrano. Review file photo

Tasers, batons, pepper spray. Three minutes, five deputies and a black man dead at the hands of police. Chinedu Okobi’s case sparked outrage in Millbrae and across San Mateo County in 2018 as the public demanded that District Attorney Steve Wagstaffe prosecute the involved officers. He didn’t.

“What this decision shows to us, to our family — it tells us that we are not safe in San Mateo County,” Ebele Okobi, Okobi’s sister, said at a news conference at the time. “And if you’re black or mentally ill, or if you need help, you could be electrocuted to death by those who are meant to protect and serve.”

Wagstaffe’s decision was a typical one. A decade of data provided by the DA’s office, which investigates all use-of-force incidents resulting in injury or death, reveals that Wagstaffe has filed charges in less than 15 percent of cases — five out of 37, one of which is ongoing — throughout his decade-long tenure. In two of those five cases, charges were dismissed, meaning that only three officers — representing 8 percent of cases — have been prosecuted in open court. The results include one acquittal, one conviction and one pending verdict.

“A very, very low percentage of (cases have) charges … filed,” Wagstaffe told the Review. “Particularly (in) the ones that are fatal, it’s a very low percentage.”

Actually, the percentage of charges filed in fatal use-of-force cases in Wagstaffe’s tenure is zero. Wagstaffe hasn't charged any of the 52 officers involved in a total of 19 fatal use-of-force cases in San Mateo County in his time as district attorney. He’s currently investigating a fatal shooting in Half Moon Bay last month and will decide whether to file charges in early July.

And these statistics may not reflect the full picture, said Stanford Criminal Justice Center co-director and law professor David Alan Sklansky. While Sklansky was unable to comment on San Mateo County cases specifically, he underscored that the data only indicates which incidents law enforcement officials — including prosecutors — decide to turn into cases.

As for why cases rarely turn into convictions, Wagstaffe offered one primary explanation: The law is usually on the officers’ side.

Part of that stems from a lack of legal code. Without clear use of force and deescalation standards at the state level, Sklansky said, decisions are left to individual departments, which often set vague guidelines and engage in inadequate training.

While California strengthened its use of force standards last August — officers now have to demonstrate that lethal force was “necessary,” as opposed to just “reasonable” — Wagstaffe says that all cases still boil down to the same question: Did the officer believe his life was in danger?

More often than not, Wagstaffe’s office has answered that question affirmatively and therefore declined to prosecute.

According to Sklansky, this is par for the course. If a police department hasn’t clearly explained what constitutes necessary use of force, it’s difficult to prove — beyond a reasonable doubt — that an officer both used unnecessary force and knew that it was unnecessary.

But sometimes, Wagstaffe explained, even officers who the DA thinks violated the law do not face charges. This is because California law establishes two conditions for prosecution: the DA must believe the defendant is guilty and believe that a jury will agree.

Wagstaffe said that California juries are historically reluctant to convict law enforcement officers, meaning that district attorneys often think they can’t satisfy the latter requirement for prosecution. Sklansky echoed that analysis, noting that police officers benefit from public support — although that may be on the decline — as well as juries’ reluctance to condemn split-second decisions made in tense or frightening situations.

For example, in 2019 Wagstaffe’s office dropped unlawful beating charges against San Mateo County sheriff’s deputy Blake Lycett on the grounds that there was insufficient evidence to support a likely jury conviction. Lycett was accused of using excessive force against three prison inmates, including punching all three and pushing one’s head into an elevator door.

Lycett’s defense attorney hired a use-of-force expert to draw up a report on the incident, the San Mateo Daily Journal reported. That report — along with another generated by an expert hired by the sheriff’s office — convinced Wagstaffe that a jury wouldn’t find Lycett guilty.

“It’s as subjective as can be,” Wagstaffe acknowledged, adding that he would welcome a change to California’s legal system that would allow him to prosecute every officer he believed had committed a crime.

Wagstaffe also expressed support for another statutory shift: A 2015 bill that would have taken investigations out of the hands of local prosecutors and transferred the responsibility to the state’s attorney general. District attorneys, according to Wagstaffe and Sklansky, have an inherent conflict of interest when investigating the police, who are prosecutors’ partners in every other criminal inquiry.

Sklansky said that state-level control of lethal use-of-force cases — provided the attorney general had adequate staffing — “would matter a lot” in determining prosecutorial outcomes.

The legislation never made it out of the Assembly.

“I don’t think it would be good public policy to take the discretion from elected district attorneys,” then-attorney general and current Sen. Kamala Harris told the San Francisco Chronicle at the time. “I don’t think there’s an inherent conflict … Where there are abuses, we have designed the system to address them.”

Wagstaffe said other county prosecutors supported the legislation on the grounds that police investigations consume time and resources. But registered opponents included the Association of Deputy District Attorneys and California District Attorneys Association.

Now, as protests against police brutality consume California and the country, the idea may get a second chance.

California Democrats have introduced a bill that would allow district attorneys to more regularly request use-of-force reviews from the attorney general, who would have to create a new police practices division within the next three years. That division would require $10 to $13 million to fund around 50 new positions, bill author Assemblyman Kevin McCarty, D-Sacramento, told the Sacramento Bee.

McCarty in 2017 led a similar effort to create an independent investigative unit in the Justice Department. It failed. Attorney General Xavier Becerra said at the time that investigations should stay largely local, the Sacramento Bee reported.

Becerra has recently called for changes in police tactics, training and hiring practices, joining lawmakers who have introduced legislation to ban police from using chokeholds or carotid artery restraints during arrests. But according to the Associated Press, he has fallen short of endorsing legislators’ proposals to put his office in charge of prosecution.

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