Justice in San Diego Near Collapse, Prosecutor Says

San Diego City Atty. John Witt on Wednesday said that his department’s criminal prosecution division is “in jeopardy of collapsing” because of budget cuts that are forcing the office to forgo hundreds of misdemeanor criminal cases each month.

He said those cases, which involve drug and alcohol violations, vandalism, robbery, trespassing and domestic violence, are strong enough legally to be prosecuted in court, but are rejected solely because there aren’t enough prosecutors.

The growing inability to prosecute misdemeanors is most graphic in cases of domestic violence, Witt said. Because of manpower shortages, the 2-year-old division’s four attorneys are unable to prosecute about half of the new domestic violence cases that surface each month. In recent months, that meant “rejecting 50% of all incoming spousal abuse cases without any prosecution or follow-up,” Witt said.

“We’re going nuts” trying to deal with the caseload, said Casey Gwinn, head attorney in the domestic violence unit. While other budgets in the city have grown slightly during the last several years, the city attorney “is cutting back (on misdemeanor prosecutions) to maintain serious crimes at the top of the heap. We’ve watched everything suffer.”

The number of cases not going to trial would increase dramatically if the San Diego City Council adopts the budget proposed for the fiscal year beginning July 1, Witt said.

“Over the years, I have not been an alarmist, but public safety is at stake,” Witt said during a Wednesday press conference at City Hall. “Few departments in the city of San Diego are more central to public safety . . . yet our budget needs continue to go unfunded.”

Witt on Wednesday joined the growing chorus of city department heads demanding that the council increase their budgets. Those funding pleas began shortly after the council tentatively agreed to freeze budgets at their current levels, an action that, because of inflation and salary increases, would force service levels to drop.

But Witt said Wednesday that the proposed freeze would dramatically reduce his office’s ability to prosecute serious misdemeanor crimes because the manpower shortage “has really grown bad” over the last two or three years.

The council’s current budget would freeze Witt’s departmental spending at $12.8 million during the next fiscal year. Witt said Wednesday that he needs $2.7 million more than that to to keep prosecutions from sliding further.

The 98 attorneys in Witt’s department handle legal affairs for the city as well as prosecuting misdemeanor crimes that are committed in the city. Misdemeanors range from relatively mundane traffic violations to “real crimes, serious crimes committed by real criminals--child abusers, wife beaters, drug users, prostitutes, drunk drivers, con men, (and) slumlords,” Witt said.

Witt’s concerns were outlined in a pair of recent memorandums written by Deputy City Atty. Mary T. Nuesca, whose unit determines which misdemeanor cases go to trial.

In those reports, obtained by The Times on Wednesday, Nuesca described a criminal justice system that, because of manpower shortages, is failing to provide citizens with basic services.

“We’ve had to prioritize the type of crimes were going to (prosecute) but the list of what we’re not going to do keeps growing,” Nuesca said in an interview. “It was in crisis proportion back in April . . . since then it’s only gotten worse.”

Because of the manpower shortage, “most vandalisms and battery cases are rejected even though they are both legally and trial sufficient,” Nuesca wrote in the memo.

Nuesca said the city attorney’s office also lacks the manpower to ensure that defendants show up for arraignments.

“Essentially, we punish those who show up for court,” Nuesca wrote. “Those who do not, those who rip up their (citations), who continually fail to appear for court, are rewarded for their ongoing criminal behavior by a lack of prosecution.”

“It will not be long until we reject a case where prosecution might have prevented a more serious harm, but instead we rejected the case for ‘budget’ reasons,” Nuesca wrote.

“We have to try and decide which case is a ticking time bomb” and go to trial on those, said Gretchen North, Nuesca’s supervisor in the criminal division’s screening and arraignment unit. “That terrifies us. There are good triable cases, and we are not able to prosecute.”

Nuesca, in the memorandums and in an interview, described a system in which:

Prosecutors are hamstrung by an inability to properly screen cases before appearing in arraignments. Although the city attorney historically has not screened paper work for routine traffic cases and some municipal code violations, in the last six months the department has stopped screening some trespass, prostitution, petty theft and drug paraphernalia cases.

“This means that, if the case is not perfect at arraignment . . . if a page of the police report is missing, we do not have the opportunity to request the missing page from the Police Department,” Nuesca wrote. “We must dismiss the case.”

Manpower shortages force prosecutors to plea-bargain cases that ordinarily would go to trial. “It’s a very strange way to do business,” Nuesca said. “I’m not at all happy with it. . . . But, when someone calls in sick, we might end up with two deputy attorneys and 20 courtrooms. You end up having to plea-bargain.”

Plea bargains also occur when attorneys, who are unable to pre-screen records, fail to uncover previous records of some defendants, Nuesca said. “Because these cases are not screened, the career criminal can come to arraignment court and receive the same treatment/punishment as a first-time offender,” Nuesca said.

Relatively young attorneys are “being asked to do some of the toughest, on-the-spot screening in court,” Nuesca wrote.

Decisions on which cases get tried are increasingly driven by whether or not the case will move speedily. “If drug case A triggers more paper work than drug case B, case A isn’t going to get prosecuted,” Nuesca said.

Victims who seek criminal justice through the city attorney’s office increasingly are being left to civil remedies.

“I spend most of my time on the telephone with victims, explaining why we rejected their case,” Nuesca said. “I tell them we don’t have any money, and they say that they pay their taxes. . . . They have no idea (about) the state of the criminal justice system.”

With the exception of DUI cases, U.S. Navy personnel facing misdemeanor charges are now tried by the military justice system. Traditionally, the military system tried only those cases that occurred on military bases. Similarly, the city attorney has asked the San Diego State University judicial discipline office to handle all but the most serious misdemeanor cases that occur on that campus.

Although many lesser misdemeanors are not being tried, the city attorney is still prosecuting cases involving diving under the influence or weapons, and cases that the district attorney downgrades from felonies to misdemeanors.

“I can’t imagine that we’d stop doing DUI or weapons,” Nuesca said. “You might as well fold us down completely.”

Witt on Wednesday acknowledged that, even if his department were to be adequately funded, the city is not able to properly deal with misdemeanor crimes because the city lacks a jail to house people who are arrested on misdemeanor charges. “The criminal justice system is in terrible shape,” Witt said.

The city is seeking the money to build a misdemeanor detention facility at Otay Mesa.