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What Is Going On With Mayor Ed Lee?

By blaming judges for the property crime surge, and urging random people to pressure them about it, the mayor seems to be drowning in confusion.

 

Mayor Ed Lee is not a gifted orator. That’s not a mark against the man’s sincerity or intelligence or competence. It’s simply a statement of fact that he struggles to think and speak extemporaneously; not everyone can be Bill Clinton or Barack Obama. 

But while Lee’s well known for his many malapropisms, his garbled answers to questions, or the time he told a joke during a World Series celebration speech and 1 million people did not laugh, yesterday Lee did none of those things during his meeting with the Chronicle’s editorial board. But he still managed to step in it.

Political observers—along with anyone who bothered to read the paper on a Friday before a long weekend—are likely shaking their heads over the mayor’s lengthy, beguiling, and apparently premeditated argument that San Francisco’s epidemic of property crime is the fault of too-lenient judges. Lee told the Chronicle editorial board that elected judges must “be accountable” to the voters. He told the roomful of journalists that random members of the public should show up in court to pressure judges into handing down tougher sentences: “We have to have a group of citizens...that will monitor what happens in court, particularly with individuals we identify as repeat offenders, and hold the judges accountable,” Lee said. He stated that insurance companies might sponsor these “volunteers” to keep pressure on judges: They would testify “this individual or group has caused quite a number of car break-ins and thefts.”

The mayor’s thought process and resultant speech is shocking. Shocking to political observers, shocking to many lawyers and judges who work in this city, and shocking to anyone who’s ever watched Law & Order. “The idea of members of the public being present,” says retired judge Harry Low, is hardly improper, trials being public proceedings, after all. “But the idea that they are there to ‘pressure’ is a little extraordinary.”

We have left a message with Lee’s spokeswoman to see if he today believes the things he said yesterday. We have also left messages with Paul Henderson and Victor Hwang, the Lee-endorsed candidates for an open Superior Court seat, asking their opinion on Lee’s propositions. Our calls and emails have not been returned. 

But there is so much wrong with Lee’s statements and so much wrongheadedness behind them, it’s important to unpack them here. The mayor, now more than ever, seems exceptionally confused. He’s certainly confusing. 

Let’s start with procedure: A court of law is not a daytime talk show. It’s not even a Board of Supervisors meeting. You can’t just show up and tell the judge what you think about the facts and law of a case you aren’t involved in, let alone “testify” in any way. “In all my years sitting on the criminal court, I don’t think I’ve ever had a member of the public saying, ‘I wanna testify,’” says Low. “If you’re the victim or you have a specific interest in the case, you might be able to comment. But not testimony.” Presenting matters regarding a defendant’s criminal history is, naturally, the job of the prosecuting attorney and/or the probation officer, Low continued. When asked why Lee, a civil rights attorney, wouldn’t know this, Low replied “his practice was rather limited.” 

But the truly disturbing elements of Lee’s suggestion go deeper than its unworkability. Rather, it’s the notion that the mayor seems to believe that citizens, underwritten by insurance companies, should be pressuring judges into making their decisions, not based upon the facts of individual cases, but due to concerns about electability. This gets to the underlying problems with electing judges in the first place. But to call for a crass exploitation of this dynamic—by activists funded by business interests no less—is insidious. “I agree with Sandra Day O’Connor: Electing judges has real problems,” sums up Myron Moskovitz, a professor emeritus at the Golden Gate University School of Law. “Inevitably it leads to something like this.” 

Finally, regarding the true culprits of the property crime surge itself, let’s take a step back and look at some statistics. While Lee seems to be scapegoating bleeding-heart judges, it warrants mentioning that, through the first eight months of 2015, only around 3 of every 50 property crimes reported in San Francisco resulted in an arrest and a suspect being presented to the District Attorney for charging. Much of this city’s property crime is highly visible car break-ins; 25,813 were reported in 2015 alone. But only 487 cases were eventually presented by the police to the DA (1.9 percent). Let’s state that again: Of the more than 25,000 car break-ins last year, less than two percent of the cases ended up with arrests that made it to the DA’s desk (around 80 percent of these cases were charged). Those are paltry numbers for a city experiencing a crime wave.

So, it seems beyond disingenuous to claim that the blame for our unacceptable status quo lies with the judges who may or may not be going easy on the trickle of miscreants actually arrested and held to account for this city’s runaway torrent of property crime. What about the cops? What about the DA? Where are they in Lee’s accounting of the problem? The answer: About as absent as the rest of his logic. The SFPD now makes an arrest in only 1 of 10 reported crimes—half what it managed only five year ago. Might that not be related to the scourge of property crimes in this city? Seems like a reasonable supposition; far more than blaming nameless judges for the crisis.

Mayor Ed Lee was sworn in, for the third time, less than six months ago. It must feel like years to him. He was yesterday booed lustily not by hunger strikers but while warming up a crowd of Hillary Clinton supporters—which says an awful lot. He’s having a tough time with the job. But elected mayors, like elected judges, must be held accountable. For what they do. And what they say. 

Update, 1:59 p.m.: Victor Hwang returned our email. His response, in part: "I haven't had a chance to read the article in full but as a former prosecutor, I'm not sure that you can lay the blame at any one part of the criminal justice system—such as judges. In actuality, the overwhelming majority of cases are plea bargained well before trial so having the judges pressured into sentencing more harshly in a handful of cases is likely to lead to an inequitable result. That being said, all public servants need to be accountable to the community they serve."

Update, 4:49 p.m.: Mayoral spokeswoman Christine Falvey emailed us this statement: "Everyone responsible for ensuring public safety in San Francisco bears responsibility and has to be held accountable including the mayor, the police, prosecutors, judges and everyone else."

Our follow-up question of "Does the mayor truly believe that insurance companies should pay for people to 'pressure' judges into altering their sentencing decisions?" has not yet been answered.  

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