ON THE AFTERNOON of June 24, 2009, Deputy District Attorney Jeff Rosen hung up the phone and tilted back in his chair. As he tells it, he spent several minutes staring at the ceiling of his 70 W. Hedding St. office. The information he had just received would put the re-election of a sitting district attorney in Santa Clara County at risk for the first time in more than 50 years.
From the 1950s to the early 1980s, Louis Bergna ran unopposed six times before stepping down and passing the torch to Leo Himmelsbach, who coasted to a second term in 1986. George Kennedy won a messy first race in 1990, but his next three races were cakewalks.
That won’t be the case with current District Attorney Dolores Carr. The succession ritual fell apart in 2006, when Kennedy’s selected successor cooperated in an investigative newspaper series critical of the office and Kennedy withdrew his endorsement, clearing the way for outsider Carr to beat three deputy DAs who sought the job.
Within three months of Rosen’s wake-up call, the San Jose Mercury News published charges of ethical misconduct against Carr. Rosen had himself removed from the prosecution of an important murder case. Then Rosen announced his candidacy for DA. Even before he got up and walked into the office of Kathy Storton, the DA’s ethics adviser, Rosen had just one thought: “This is a big problem.”
“This was the straw that broke the camel’s back,” he says now. “This is what put it over the top for me.”
What’s resulted has locked an unlikely pair of opponents—Carr, a former Superior Court judge with an army of powerful allies, vs. a relatively unknown deputy DA with 15 years of quiet experience—into a heated political battle. The race is so vitriolic that the candidates will not make eye contact with one another, much less speak directly. The election pits a subordinate against the sitting Santa Clara County DA for the first time in decades. It has fragmented the district attorney’s office into factions and revived old alliances from the 2006 race in which Carr won her first term. And while voters must wonder about the young prosecutor who suddenly is making a play for one of the county’s most powerful seats, this race is less about him than it is about Dolores Carr.Tragic Twist
What happened to Vahid Hosseini happened a long way from county politics. A well-liked, 47-year-old Iranian immigrant, Hosseini and his wife, LeeAnn, built their grocery, Willow Market, into a profitable little business over a span of 25 years. He was also a man of habit, who strolled down to Bank of the West, past an auto repair shop and the taqueria, each Friday to take out a large cash deposit for his check-cashing customers.
On May 23, 2008, three men—either boldly or stupidly—approached him at four in the afternoon in the bank’s parking lot just off of a busy four-lane street, shot him once in the head and made off with more than $50,000 in cash. Hosseini died 11 days later. It took a year for the police to close in on five suspects, in part with the help of a wiretap that revealed that one suspect’s uncle was hiding him. While the prosecution worked with law enforcement to build its case, LeeAnn Hosseini pursued a civil lawsuit of her own against Bank of the West. But most important to the family was that the DA’s office pursue the harshest sentence possible—death—against those responsible. Rosen was on the case. Then his telephone rang.”I get a call from one of the two investigative officers on the Hosseini case,” Rosen recalls angrily. “He says, ‘You know, the victim’s widow, LeeAnn Hosseini, just realized that John Carr, the John Carr that was working on the civil lawsuit, is the DA’s husband.’ I was stunned.”
It turned out that the attorney in the Hosseinis’ civil suit had tapped DA Carr’s husband, a retired San Jose police lieutenant, for $14,000 in consulting services. Although Carr says her husband was hired before the police had made an arrest, she now acknowledges that his work did create the appearance of a conflict of interest. John Carr ultimately returned the money, but in the ensuing uproar, the DA’s office had to drop back from the case. Carr put all decision-making authority on the case in the hands of her chief assistant, Marc Buller, who released a statement in September 2009 turning the case over to the state attorney general.By that time, Rosen had already asked Buller to remove him from the case, as the uproar had crystallized his decision to run for office.
“No one around her was standing up to [Carr] and pointing this out. She tends to take disagreement as disloyalty,” he says. “It was like, you know what? We need a change in the district attorney’s office, focusing on justice, and not getting money on the side.” Prosecutorial Zeal Carr used the word “change” four years ago in her own campaign to replace four-term, retiring DA George Kennedy, promising to reform what she calls the “win at all costs” culture that had led to a allegations of 100 appellate court cases in a five-year span in which the DA’s prosecutors engaged in questionable conduct, documented in a series in the Mercury News series branded “Tainted Trials, Stolen Justice.”
Carr prevailed, beating Karyn Sinunu-Towery, once Kennedy’s hand-picked heir apparent. She immediately set to work delivering on her promise, replacing managers in key positions. It didn’t take long for detractors to say the changer already needed to be changed out—the Hosseini case was not the first sign of trouble. Although Carr recalls her entrance into office as notable for her call for an independent management audit and trimming $3.5 million in debt left over from the previous administration, others remember an embarrassing rookie move when she tried to appoint a sitting judge as her chief assistant, which is against the law. Still others grumbled about her reshuffling of responsibilities, which, while not overt punishment for those who failed to support her ’06 campaign, was at least a boost for those who did. Even her stricter dress code got under some people’s skin. Former Deputy District Attorney Ed Fernandez , a friend of Sinunu-Towery’s who left his job soon after Carr took office, is blunt in his assessment of Carr’s performance. “I’m far from objective and unbiased,” he says, “but she’s been a disaster. Everyone I’ve spoken to says people are miserable, morale is down.” Carr acknowledges that she is not universally beloved—a fact she chalks up to politics. “There is still a segment of the office that was supportive of my opponent last time, including Mr. Rosen, that would like to be in charge of the office,” she says.
Rosen’s campaign contribution forms include the names of 30 attorneys working within the DA’s office, including Sinunu-Towery. For her part, Carr also lists several of her attorneys as campaign contributors, including another past opponent, chief assistant Marc Buller. But the burden of proving to the public that this is more than interoffice politics has fallen on Rosen, a task he has taken up robustly.
“His central platform is criticizing me because he has nothing to offer in terms of experience or ideas on how to improve our office,” Carr says. Unfortunately, with the amount of controversy seen in the last four years—and thanks in part to a daily newspaper that’s been calling for her head for years—Rosen has plenty of fodder for his campaign attacks.
In campaign appearances and interviews, Rosen brings up Carr’s unpopular decision not to bring charges in a 2007 rape case that came to the DA’s office just after Carr took over. It included forced-sex allegations involving an intoxicated 17-year-old girl and a number of De Anza College baseball players, reported by three female soccer players who intervened in what they contend was a gang rape.
Carr did not file charges, citing inconsistent statements from the witnesses, a tainted crime scene and the victim’s inability to recall the incident. “The assigned laws are very clear,” she says. “We didn’t have enough evidence to charge this case.”
At the time, critics accused the newly minted DA of being unsympathetic to the victim and too tight-lipped about her decision. “I’m at peace with my decision,” she told the Mercury News at the time. “We don’t make decisions based on public outcry.” The newspaper flayed her in its opinion pages, going so far as to publish a fictional, emotional statement about the decision that its editors said Carr “should” have delivered.
Then–Attorney General Jerry Brown investigated the case and returned the same conclusions as Carr—a decision that Carr’s detractors took little note of. Neither does Rosen.
“I’ve prosecuted gang rape cases,” he says. “They’re awful. It’s like Sodom and Gomorrah. My first public statement wouldn’t have been, ‘I’m at peace with my decision.'”
Most recently, Carr has come under fire from Rosen and the Merc for her decision to use the rarely invoked “blanket statutory refusal” mechanism to prevent Judge Andrea Bryan from hearing the DA’s cases on the law and motion calendar. As it stands, Judge Bryan is being automatically challenged on most of the cases that come across her desk and cannot hear any of them. Even The New York Times perked up to take note of this story and pointed out that a blanket challenge by a DA is unprecedented. Some see the so-called “papering” of Judge Bryan as the epitome of hubris and power politicking. Others believe Carr’s decision was exactly the kind of gutsy representation Santa Clara County needs.One Angry Man Onstage during a debate at Santa Clara University Law School, Jeff Rosen clearly cuts the kind of figure students find attractive. He’s the younger of the candidates, he’s the Democrat and his rallying cry has an idealistic hum to it, as he jabs at the podium with an index finger for emphasis: “Justice! Justice!”The students laugh enthusiastically at his jokes. And a student blogs afterward: “Note to self: When taking on my boss in a public debate, get some tips from Jeff Rosen.” Carr is an entirely different kind of creature. Next to Rosen, she’s not stiff but she’s not warm. And while she possesses an undeniable charisma, Dolores Carr does not crack wise.Rosen’s policy ideas also appeal to the young crowd. He talks about reinstating the DA’s Cold Case Unit, which re-examines murder cases that were never solved. And when he vows to create a “Conviction Integrity Unit” that would work in the tradition of the Innocence Project, you can almost hear the audience mentally casting their votes.”We have over 300 unsolved murders, and the Cold Case Unit solved 22 cases before it was disbanded by the current DA,” he says. “She says we didn’t have enough money. At the same time she also hired two press information officers.”
Even though he has likely hashed out the case against his boss for audiences, constituents and supporters dozens of times, Rosen still becomes visibly agitated when he starts ticking down the list of reasons he’s running—bouncing acrobatically from point to point (Carr’s face remains as placid as the surface of a still lake). Rosen’s attacks against his opponent often are deeply personal and challenge not only her decisions but her fundamental ethics. In a candidates’ forum hosted by the Silicon Valley Council of Nonprofits, he went so far as to call her blanket challenge of Judge Andrea Bryan “un-American.” And he repeatedly points to Jim McManis, a defense attorney who donated several times to Carr’s campaign, as a direct beneficiary of what he hints is a case of justice for sale in Santa Clara County. As evidence to back up his claim that Carr is actually dirty, Rosen talks about a case in which McManis was representing Ali Yahya Valdovinos, an 18-year-old Stanford exchange student. Valdovinos sold a laptop that was mistakenly FedEx’d to him, and was charged with felony grand theft. The prosecutor in charge of the case reduced the charge after he received a call from Carr, and after she had heard from McManis. Valdovinos was spared deportation under the lesser charge.
At the Santa Clara Law school debate, Carr flatly denied that her relationship with McManis played any role in her decision. “If you think you’re going to call me up and say lower the offer on a case, I’m going to say, ‘Wrong number,'” Rosen told the audience. Carr has said repeatedly that she responded to McManis’ complaint the same way she would have with any lawyer. “I told the attorney to talk to the supervisor in the Palo Alto office. I never spoke to the lawyer again,” she told the San Jose Rotary during a campaign forum last week. “The supervisor and I spoke about the case, so that we could come to a just resolution.”
The idea of “resolving” such issues has popped up repeatedly when it comes to government integrity issues, such as the DA office’s decision not to pursue charges on several labor-related scandals.
In January 2008, 19-year-old Eric Hernandez was charged with hacking into email accounts of several City Hall staffers, including Mayor Chuck Reed’s chief of staff. Information from the hacked accounts later showed up on San Jose Revealed, a now-defunct anonymous attack blog. Hernandez, who had ties to Cindy Chavez, the former City Council member and head of the South Bay Labor Council, was charged with a felony. Weeks later, the DA’s office reduced the charges to a misdemeanor.The move did not surprise Carr’s critics, who had already been disappointed that she had not vigorously pursued previous political corruption charges against former Mayor Ron Gonzales, or against two of his former aides, Tony Arreola and Sean Kali-Rai.
Most recent was an oddly timed decision to delay bringing charges against the Mexican American Community Service Agency, which was accused of skimming money from its employees’ pension funds, until after the June election.
An audit found that MACSA misappropriated $400,000 worth of pension plan funds back in January, but Carr announced that no charges would be filed until June. She has denied that the timing is political or has anything to do with going easy on District 5 City Council candidate Xavier Campos, MACSA’s former chief operations officer.
The Campos family is, of course, deeply involved with local labor, and an impassioned but confusing plea to the council by SBLC President Cindy Chavez to endorse Carr (who is a Republican after all) has raised a few eyebrows. SBLC ultimately voted for an “open endorsement” of neither candidate.
Regardless of any dot-connecting, Carr is adamant that her office is tough in the realm of political accountability.
“I would say we’re very responsible in terms of looking at behavior that comes to our attention,” she says of the MACSA case. “There were thousands of hours that were spent looking at this. Our objective is to make a legal assessment as to whether or not elements of the crime were proven.
“We’re not afraid to go forward once we’ve made sure we have a case we can really prosecute. Charging people with crimes is very serious. We have a lot of power to ruin people’s lives.” KING GEORGE Former District Attorney George Kennedy says that he has mellowed out in retirement. Sitting beachside in Santa Cruz where he now lives, a strong breeze tossing his newly longish hair, he looks very much the part of the retiree, not so much the fearsome four-term district attorney.
Kennedy was the first person outside of his family that Rosen consulted with over his decision to run, and though Kennedy has traded his wing-tips for flip-flops, he agreed to jump into the fray on Rosen’s behalf. “I know about the two of them from supervising both of them,” he says. “Jeff is very intelligent. I know that Jeff is the one more likely to run the office in selfless public interest. If you ask him a question, you’re going to get a straight answer.”
Nevertheless, he does not speak ill of his successor. Kennedy claims that as his hair grew out, so did his old firebrand nature. “I think it’s in really bad taste to go negative on her,” he says.
It’s tough getting insiders to discuss the race. “It’s too difficult for me. I have to be mindful of discussing anything negative about my boss,” says Sinunu-Towery, before adding hurriedly, “I’m not saying I would say something negative. It’s very difficult.”
Richard Alexander, a personal-injury lawyer, longtime Carr supporter and 1984 president of the Santa Clara Bar Association, thinks he knows a thing or two about being American. He lines the walls of his polished office off St. James Park with prints of John Trumbull’s Declaration of Independence and carries a walletful of fake $2 bills with the same image, which he says he likes to give out to people. “I have challenged judges,” he points out, “and Rosen says that’s un-American?” He then goes quiet, leaning forward in his chair, glowering. “I want Mr. Rosen to know that is a tawdry, slime-quality lie for which he owes Carr and every lawyer in this country a sincere apology.”He leans back again. “To throw mud because he has the Mercury on its propaganda campaign. I don’t think Carr’s been given a fair shake at all.”
Like Alexander, Carr supporters bristle uniformly at the treatment she’s gotten in the daily newspaper, saying its editors simply want the DA’s office in the hands of the Sinunu-Towery faction of the office, because she closely collaborated with reporter Frederic Tulsky for the “Tainted Trials” series.
William Larsen, a retired special assistant district attorney, was particularly angry with a Scott Herhold opinion column that detailed the cost of Carr’s county vehicle, a $37,000 Acura he described as too extravagant to be paid for with taxpayer money.
“That was about as low as it gets,” says Larsen. “Oh, Dolores, she’s got to have this polished wood gear-shift knob. I wanted to send an email that said, ‘Why don’t you take the gear shift knob and shove it up your ass?'”Larsen goes on to say that issues like the “papering” of Judge Bryan and the Hosseini trial have been blown out of proportion and are not indications of an unethical DA’s office. “The implication in the disqualification of the judge flap is that somebody has not played by the rules, and that’s absolutely incorrect. It’s a discretionary decision,” he says. “Their campaign to unseat Dolores has harped on half a dozen out of thousands of decisions that she’s made.”The disadvantage that Carr has is that even if all the allegations leveled at her are not worth taking seriously, the talking points she marshals are just not as sexy as Rosen’s charges of scandal and misconduct. She says she’s a good manager. She says she’s better equipped to make the $4 million worth of budget cuts her office faces. She says she already knows she can do this without any layoffs. Her supporters say that’s what people should concentrate on. “The budget thing is almost a full-time job,” says retired Assistant District Attorney Al Weger. “I think Dolores is more capable of doing that.”
Alexander also doesn’t give much credence to the fact that the Santa Clara County Bar Association gave Rosen its endorsement after a plebiscite vote. Sitting in his office he taps away at a calculator that spits out the results on a roll of white receipt tape. “The membership is around 3,000. It is outrageous for the SCCBA to claim a winner in a bar plebiscite that amounts to a fraud on the public—a total of 287 people voted, less than 10 percent,” he says.”These are tough times as it relates to financial resources in government, and Dolores has managed to maintain the level of service that keeps us safe,” says James Campagna, vice president of the Sheriff’s Advisory Board and owner of Plaza Loans. “Jeff Rosen’s support runs as thin as disgruntled employees. He’s a low-level employee in the office. He’s never managed anybody.”
Larsen also dismisses Rosen’s high-profile convictions as no indication he will make a good DA. “Murder cases are very, very straightforward cases,” he says. Rosen has had to repeatedly defend his ability to manage, given that he’s never held a supervisory position in the DA’s office. Kennedy says he’s unconcerned. “When I first became a DA, I got tremendous help,” says Kennedy. “I know he will too.”As for Rosen, he continues to plug away with the words of his own father still ringing in his ears when he told his parents his plans to run. “He said, ‘Well, it’s better to have loved and lost than never to have loved at all,'” says Rosen. “I said, ‘Dad, I could win.’ He said, ‘Oh, no, of course you could win, of course.'”He certainly has a lot riding on it. If the office is a chilly environment now, one can only wonder what a future as an unsuccessful challenger could be like.
