Vista D.A.’s Office Takes Stand Against Charges of Racial Bias

The San Diego County District Attorney’s office defended itself in a hearing on Thursday against allegations that it selectively prosecutes nonwhites for second-degree murder for traffic fatalities linked to drunk driving.

Deputy Dist. Atty. Phil Walden, who heads the Vista District Attorney’s office, switched from prosecutor to a subpoenaed defense witness Thursday as two public defenders challenged Walden over his criteria in prosecuting such cases.

Walden repeatedly insisted that the race of the defendants had no bearing on the decision, ultimately made by Dist. Atty. Edwin Miller, when to seek a second-degree murder conviction.

Uses Established Law

Instead, Walden insisted in sometimes feisty tones that his office uses established case law in deciding when to charge a defendant with second-degree murder versus the lesser charge of vehicular manslaughter.

The criteria for second-degree murder, Walden said, includes a blood-alcohol content of more than 0.10, whether the defendant has had prior drunk-driving charges, and how outrageous the driving itself has been.

Referring to the second-degree murder prosecution of Rudy Martinez for the deaths of two men along Cardiff’s so-called restaurant row last year, Walden said emphatically, “At no time did (the California Highway Patrol officer) tell me the defendant’s name or race because that doesn’t bear on the case.”

Walden said he had coincidentally driven by the accident and had seen “the dead bodies,” but said it didn’t sway him emotionally to charge the driver with second-degree murder.

In the case of another defendant, Dennis Butler, who was charged with second-degree murder in the deaths of two people in Oceanside last year, Walden said he didn’t know the man was black. Butler allegedly drove his car 114-m.p.h. down Mission Avenue, striking the victims’ car head-on.

Selectively Prosecuted

Martinez, Butler and a third nonwhite defendant, Fernando Cobarrubias--who is charged with second-degree murder in the death last year of an Oceanside woman who was standing at a bus stop--are represented by public defenders John Jimenez and Roy Spencer. They are asking that the charges be dropped because, they argue, their clients are being selectively prosecuted because they are not white.

The public defenders’ key witness Thursday was San Diego State University researcher Paul Strand, who evaluated 162 cases of drunk driving involving fatalities that were prosecuted by the San Diego County District Attorney’s office over a three-year span beginning in November, 1984.

Of those cases, Strand said, only five were prosecuted for second-degree murder; four of those were in Vista. Of those four, he said, a statistically disproportionate three of them were nonwhite.

Based on such technical criteria as blood-alcohol level, speed, the number of fatalities, sex, age of the driver and the time of the crash, Strand said there were no outstanding factors to indicate why the four cases prosecuted by Walden’s office should have been selected for second-degree murder.

But under cross-examination by Deputy Dist. Attorneys Al Arena and Craig Fisher, Strand acknowledged that his criteria for the statistical review was selected by his clients, the defense attorneys, and that he had no personal knowledge of case law that enters into the decision of what charges to file.

The district attorney’s office maintains that “outrageous driving behavior” is a key element taken into consideration, and that such driving behavior, which can show malice, can’t be reflected in Strand’s statistical analysis.

Strand further acknowledged that the prosecution of even one more white driver for second-degree murder would significantly alter his findings. To that point, Walden noted on the witness stand that his office had prosecuted another white driver for second-degree murder before the time span studied by Strand.

At one point, Jimenez challenged Walden for not prosecuting a particular white driver for second-degree murder after the man drove drunk, crashed and killed his own 2-year-old son. The driver, Jimenez argued, also had been driving outrageously.

Walden said he and another prosecutor in fact had recommended that the driver be prosecuted for second-degree murder. But they were ultimately overruled by Assistant Dist. Atty. Richard Neely, Walden’s boss, because of the belief that a sympathetic jury would not convict the driver for the murder of his own child.

“Unfortunately--well, not unfortunately--it’s not a democratic society,” Walden said, referring to the hierarchy and the decision-making process in the district attorney’s office. His remark brought stifled laughter from a handful of deputy district attorneys sitting in the courtroom listening to their boss testify.

Jimenez and Spencer have subpoenaed Miller to testify in the hearing, and Superior Court Judge Tony Maino on Thursday denied Walden’s request to quash the subpoena, saying he would later rule whether Miller’s testimony is warranted.

The hearing is scheduled to continue today with Walden resuming the stand.