Cothran

Cases of Incompetence
Neither Matt Gonzalez nor Steven Castleman has the slightest experience in electoral politics. Neither is the preternaturally ambitious sort who works his way up through customary political avenues backslapping and glad-handing the usual suspects until everyone who is anyone agrees he is ready.

Matt Gonzalez likes late-period John Coltrane and publishes forgotten beat poets, two qualities I can assure you, having watched politics in this town for nearly 10 years, no usual suspect would ever hope to possess. Castleman is a stay-at-home dad who lends out his prosecutorial expertise in environmental law to Solano County as a consultant.

No, these two men of cheap haircuts and illegible campaign fliers are authentically self-chosen as actual or possible candidates for district attorney this November. (Gonzalez has announced his candidacy and Castleman is still considering running.) Self-chosen, that is, by the incapacity of San Francisco District Attorney Terence Hallinan.

For both men, it only took one instance of interacting with the DA inside the criminal justice system — one case for each — before both men saw that clearly something had to be done.

These two attorneys experienced firsthand the ineptitude of a once-admirable man who has disintegrated in front of San Francisco's eyes over the past 3 1/2 years. They didn't hear about it from friends or read it in the paper. God help them, they saw the awful mess up close and personal.

To have one such authentic individual in a race is an extreme rarity in machine-dominated San Francisco politics. To have two would likely be a first; it would also turn what promised to be a dull enterprise involving an also-ran (former prosecutor Bill Fazio) and a has-been (Hallinan) into one marked by lively politics and genuine debate.

The DA's absurd treatment of a minor pot case led public defender Matt Gonzalez to announce his candidacy for district attorney early this year. A much higher-stakes prosecution — the biggest illegal pollution case in state history — and Hallinan's complete botching of the matter, has made former Assistant District Attorney Steve Castleman consider running.

Each case — one big, one small — illustrates that Terence Hallinan is not what he told us he would be: a progressive prosecutor capable of changing the system.

Don't get me wrong. I am sure that in the deepest corners of his sclerotic mind and heart, Hallinan wants to be a progressive crusader like his father, Vincent. It's just that he doesn't now have the cojones, the gravitas, the mind, the whatever-it-takes to translate heartfelt ideals into admirable action. If he ever did.

Matt Gonzalez has told me his story a few times now, and he repeats it often on the campaign trial. As he did during a recent fund-raiser at Sadie's Flying Elephant, a small, dark bar in the Potrero Hill flatlands with many dogs and two pool tables.

Private detectives and public defenders mix with a crowd of young and attractive nouveau bohemians (is there a better term?), some wandering outside for the roast beef from the sidewalk barbecue. They eventually hear Gonzalez dedicate the event to St. Maximo, the patron saint, in Central America, of drunks, whores, and revolutionaries. But first he tells the crowd why he is running.

“Let me tell you how I got into this race,” Gonzalez starts out. “I was representing this guy on a marijuana case.”

Gonzalez's client was one Andrew Dugger, your basic twentysomething hippie wastrel on Haight Street. An eyesore maybe, but hardly a threat to public safety, he was busted with exactly 1 ounce of marijuana. He wasn't bothering anyone. He was just rolling a jay with some buddies, discussing the now-famous Tyson ear-biting fight.

There he was on Haight Street, he and his buddies, having just scored, sitting on the steps of the apartment building in which they had scored, Andy saying something such as, Oh, dude could you believe it when he chomped down on his ear like that? Dude it was too nasty, Andy rolling a joint, and — boom — the cops spot one of Andy's friends, who also is sitting there and happens to be wanted on some minor warrant.

Andy gets nailed with a joint in his hand, and the cops search him. Boom again: They find the ounce he just scored, taped to his legs in more than one bag. Suddenly, he's on the hook for a felony possession-for-the-purpose-of-sale charge.

Now, cops always overcharge when they book someone into the system. It's routine. And normally your smart district attorneys kick this kind of chickenshit case out of the system about as fast as they possibly can. They plead it down to a misdemeanor and send the kid out sweeping city streets or picking weeds for Sheriff Mike Hennessey. No jail time. No extra cost to the taxpayers. No extra body in jail to add to more jail overcrowding and the possibility of fines from the federal court overseeing your overcrowded hellhole of a city jail.

But as I think I have said before, Hallinan is not your smarter DA. Hallinan charged Andy with a felony, Gonzalez tells the crowd at Sadie's.

The public defender was shocked. Surely, this was a joke. A felony? This was Manny the Hippie almost, Gonzalez pleaded. He pointed out that his client had no previous felony record and asked for a guilty plea to a misdemeanor charge.

No go, said the DA.
“We tried everything,” Gonzalez says. “We could do probation, put him in the sheriff's program sweeping streets. The DA didn't want to settle, so we had to go to trial, where, of course, we couldn't get around the facts of the case.”

Meaning: Gonzalez's client was found guilty. Guilty of possessing an ounce of marijuana taped to his leg.

Between the verdict and the sentencing hearing, Dugger enrolled in community college and got a job at one of the many natural foods stores in San Francisco. He stopped hanging around and smoking pot in the Haight. [page]

Dugger went to meet with a probation officer who would recommend to the court a sentence. Now, understand: The Adult Probation Department is a bastion of hard-boiled types. The officers usually recommend some jail time. But not with Dugger. The probation officer on his case recommended the Sheriff's Work Alternative Program (the aforementioned street sweeping detail), and no jail time at all.

“But the DA on the case had her marching orders,” Gonzalez says. She asked for six months in jail, which would have effectively knocked Dugger out of school and out of his job, and placed him in the tank with rapists and murderers.

Gonzalez appealed to Hallinan's protege, Vernon Grigg, the head of narcotics. But Grigg argued that Dugger “had to be made an example of,” that he was a public nuisance.

“I said, 'You have to be kidding,' ” Gonzalez says. ” 'Take a walk around the building and think it over.' I said, 'If you do this I will run for DA.' ”

Grigg insisted. The judge, a conservative Republican, agreed. And Dugger did county jail time next to rapists and murderers for six months.

Gonzalez had gone looking for the values of the candidate Terence Hallinan, but couldn't find them.

Dugger got out of jail in time to attend Gonzalez's April fund-raiser at Sadie's, where he listened to his ill fortune cast as the rationale for a political candidacy.

“The day after sentencing, Grigg ran into me and said I had better get my papers filed for the DA's race,” Gonzalez tells the crowd at the fund-raiser. “It was an insult. So I did.”

Gonzalez's point is simple: Hallinan ran on the promise that he would de-emphasize minor drug cases, yet he still allows insignificant drug cases to clog the judicial system. Dugger should have never gone to trial. He should have never wasted a jury's time, a judge's time, two lawyers' time, a bailiff's time, a court reporter's time. He should have never wasted the time and space of the sheriff, who had to jail Dugger.

Gonzalez says Hallinan is employing a wrongheaded plan when it comes to marijuana offenders. He forces them to plead guilty to felony charges and accept probation terms premised on felony convictions. Then, when they mess up by missing a meeting or two with their probation officers — which they invariably do, because they are stoners, and stoners tend to follow bands like Phish out of town, regardless of scheduled probation meetings — they are sent to jail for six months to a year. Gonzalez says about 10 of his clients have pleaded guilty to felony drug charges on minor pot cases, been given probated sentences, and later done six months to a year in jail because of probation violations.

Hallinan has placed significant crack dealers in his pat-on-the-head rehab programs and allowed them to avoid all jail time. Meanwhile, he is sending stoners to jail for a year.

No wonder Gonzalez, who agrees with Hallinan's progressive goals, wants to be DA. It galls him to see a dunderhead screw up the public's perception of liberal criminal justice reform.

Or, as Gonzalez put it at the fund-raiser, “Everyone connects Terence Hallinan's incompetence to his being a progressive. He's just a bad lawyer.”

On the eve of the 1995 election for district attorney, I was sitting in El Rio with a friend and a mutual acquaintance, a locally famous radical criminal defense attorney. My friend and the radical lawyer were all for Hallinan. Finally, they said, there will be some progressive criminal justice reform.

Look, I said, I am all for spending fewer resources on low-level drug cases, and ignoring the death penalty and the Three Strikes law. But I know Hallinan; he seems to be losing his grip, I said. He's notoriously unfocused and addled. He may believe in these things, but I seriously doubt his ability to run something as delicate and in need of attention to detail as the DA's Office.

Oh pooh, is essentially what my friend and the radical lawyer said. Of course Hallinan is softheaded. But he has the right agenda, and he will surely hire a competent lawyer to serve as his No. 2 and execute his plans with alacrity and skill.

Faced with an impenetrable argument premised on a future occurrence, I was forced to reply with something witty like: Uh, we'll see.

Here is what Steven Castleman saw.

Castleman began his career as an investigator in the San Francisco District Attorney's Office in 1976. He was 23. He worked in the consumer fraud unit for five years before moving over to the criminal division. He went to law school at night at the University of San Francisco, and by 1981 was prosecuting cases in the DA's Office.

Two years later, Castleman tried and won the first toxic waste disposal case in California history, People vs. Raymond Wilson, an action against a chemical waste dealer who stored thousands of leaky drums of toxins on Pier 70. In 1986, he launched the case of a lifetime against AAA Machine Shops, a business at the Hunters Point shipyard that had for more years than anyone can remember dumped toxic waste by the ton on the ground, and, consequently, into the bay. The level of illegality was staggering. When all was said and done, it would be the largest criminal prosecution of a polluter in state history.

It took nearly a decade of hard work and endless appeals, but by late 1995 Castleman had won airtight guilty verdicts in criminal court. All that needed to be done by 1996, months after Hallinan took office, was to march the defendants into civil court and collect unimaginably huge fines, in the hundreds of millions easily. Not to mention the cleanup costs AAA should have had to pay. [page]

Since 1993, Castleman had been a consultant to the DA's Office, working solely on the AAA case. He offered his services to Hallinan, who said OK. Castleman immediately went to work briefing Hallinan's handpicked No. 2, David Millstein, a former law partner of Mayor Willie Brown, and Millstein's handpicked head of special prosecutions, Deborah Hayes.

It didn't take long for Castleman to suss a few things about Hallinan and his lieutenants: They were bad lawyers, and they wanted nothing to do with being told what to do by a good lawyer.

Castleman was cut out of the loop, and Millstein and Hayes, in contravention of all things intelligent and easy, took the case into a private binding mediation hearing, where they sold it at bargain basement rates: $1.1 million in damages and no cleanup costs. Hallinan and his doofus deputies even waived the state of California's rights to go after AAA Machine Shops for cleanup costs. The state EPA and the Attorney General's Office were so pissed they couldn't see straight. Tens or even hundreds of millions of dollars had been squandered through sheer incompetence.

“They weren't prosecutors or environmental enforcers,” Castleman says of Hallinan, Millstein, and Hayes. “They didn't understand the case.”

Castleman says those three lawyers also violated ethical guidelines that command prosecutors to 1) never strike a settlement deal in secret, and 2) never accept money from a defendant without court approval.

“The original impetus [for possibly running for DA] was that if I have to run against him to get him to explain why he violated those ethical rules and destroyed the case, then I would,” Castleman says.

Bill Fazio ran and lost in the 1995 DA's race. For years before that he had dreamed of being DA. In the next few weeks, he will probably announce that he is running for district attorney. Fazio's desire to be DA appears limited to raw ambition, and there's nothing wrong with that, as Seinfeld says, but in this regard he is nothing like Gonzalez and Castleman, who appear to be primarily motivated by genuine reformist instincts.

Still, when you ask him why he wants to be DA, Fazio, too, has that one case he cites, the one compact story to explain why Hallinan has to go.

It involves a lifelong drunk named Anthony Lopez, who pulled a stupid nonviolent robbery a few blocks from his house and, because he had served two prison stretches 15 and 18 years ago, was looking at 25 years to life under the Three Strikes law.

Hallinan campaigned against the law, but with Lopez he embraced it. His deputy on the case was asking for 15 years in prison.

Fazio had already gotten Walden House, the prominent rehab center, to agree to take Lopez in for two years. Everyone acknowledged he was motivated to reform himself, after drying out in jail. He had never hurt anyone, just pulled dumb robberies under the influence. If he screwed up on the program, Fazio agreed to a 20-year sentence in prison.

Hallinan and his deputy would hear none of it, and Lopez, who could have been the poster boy for Hallinan's once-stated desire to ignore the Three Strikes law when it came to nonviolent offenders, went to prison for 15 years.

Matt Gonzalez is right when he says the DA's race shouldn't be about ideology. One shouldn't equate untested progressive reforms of the criminal justice system with incompetence. Hallinan is a failure. His stated goals are not.

The death sentence is immoral and inefficient as a crime-fighting tool. Young black men on their first foray into crack dealing should be given a chance, if they are indeed not major dealers. The Three Strikes law is ridiculous. Minor drug cases should be de-emphasized. Pot should be decriminalized. All these things are, on their face, reasonable goals.

The greatest crime of the Hallinan regime might be allowing conservatives to paint all liberal reformers with the same stupid color Hallinan wears.

Hopefully, with Gonzalez and maybe Castleman in the DA's race, the pressing and relevant issue of competence will emerge for full discussion. The cases they base their electoral ambitions on, after all, show that Hallinan has trouble enacting a progressive agenda in the most progressive city in the nation.

That's like having difficulty finding an espresso in Rome.
That, my friends, is incompetence.

George Cothran (gcothran@sfweekly.com) can be reached at SF Weekly, 185 Berry, Suite 3800, San Francisco,

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