The failure to designate an expert in this case is not a minor mistake. It is a violation of standard procedure. When a rape case involves medical exams, a prosecutor simply must have a nurse or some other medical expert "lay a foundation" for the introduction of the records into evidence. And only an expert can give an expert opinion on what the records mean.
Because no expert had been designated -- that is, because the prosecutor on the case screwed up -- Chaitin simply could not let the records into evidence. This is not really a judgment call; it's a matter of proper presentation of evidence. And without the records, all the court had for evidence of this alleged two-on-one rape was the shaky-as-hell testimony of a little girl who had been arrested the week before her trip to San Francisco on a prostitution stroll in L.A.
Chaitin faced a difficult decision. Though some aspects of the girl's actions were consistent with a rape scenario -- she immediately sought help, and her behavior was consistent with that of a rape victim -- the doubts outweighed them. Chaitin dismissed the case.
(By the way, the medical evidence, which Chaitin saw but could not legally consider, was far from compelling. The alleged victim's vagina was slightly red, which is evidence of sex but not by any stretch of imagination conclusive evidence of forcible rape.)
The DA's Office still contends that Chaitin violated the law by not allowing the medical records into evidence, but prosecutors have not availed themselves of their right to challenge her decision in Superior Court. And they have not re-filed the case, even though they have said they would do so. The DA is waiting for the 14-year-old to come back from L.A., where she is testifying as the victim in a similar rape case.
The third case Hallinan drew on involves Huy Le, who was accused of raping three women. Prosecutors said he picked up women on Haight Street and took them back to his apartment, where he gave them drugs and allegedly forced himself on them.
Two of the victims' cases had been dismissed before they even reached Chaitin's courtroom. The district attorney had taken what's called a "first dismissal," meaning the office bailed on the charges because the cases were too weak. When a third victim came forward, all three cases were folded into one and presented en masse to Chaitin.
Again, The People vs. Le had many evidentiary problems. For example, the first two victims admitted they had lied about several aspects of the case, including the allegation by one woman that she was kidnapped at gunpoint.
Perhaps the biggest problem in the case stemmed from Le's propensity for videotaping his sexcapades. A videotape, involving the third victim, was played in court. It showed, most agree, consensual sex. Le and the woman would have sex, rest awhile, and have sex again. No force was evident. She did not appear drugged, though she did smoke opium with Le earlier. She appeared perky and alert. She even called her boyfriend during sex to lie about where she was.
Even so, Chaitin found enough evidence to send Le up to Superior Court to face trial on one instance of digital penetration and some drug charges.
In Superior Court, the DA's Office asked that all of the charges be reinstated. But after receiving signals that Superior Court Judge Robert L. Dondero, a former local and federal prosecutor, was going to toss the charges again, the current prosecutor cut a deal, dropping the one sex charge Chaitin had upheld and allowing Le to plead guilty to a drug charge.
These are the routine, if frustrating, vagaries of big-city crime-fighting. They are not cause to declare a counterproductive war on a judge.
Here's how a straight-shooting district attorney behaves: A weak case goes into a courtroom and dies, and the prosecutor hitches up his britches and tries to do better the next time.
Here's how Terry Hallinan works: Routine setbacks blur with personal recriminations and form a dangerous alchemy of revenge. Frustrated, Hallinan eschews legal avenues of redress and goes off half- or quarter-cocked in the press.
Hallinan is legendary for his pugnacious style. When he took a poke at the pompous and overrated pol Joe O'Donoghue, I applauded. Even before that, I liked his passion. As a supervisor he was a refreshing alternative to the bland machinations of the other supervisors. He was willing to stick his chin out for what he believed in, and stand up against entrenched interests, even when everyone else had signed onto the fix. I admired the hell out of the guy back then. I would still like to.
But all this feud with Chaitin shows is pettiness and a willingness to play fast and loose with facts. Passion needs brains and sober and rational judgment to make it meaningful.
I hope Hallinan realizes that, and soon.
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