Critics say DA reneges on reform pledge
Public defenders say man's arrest over a loud party shows discriminatory practices still exist
Legal fallout over a loud karaoke party in an Evergreen garage last fall has spurred public defenders to claim the Santa Clara County District Attorney's Office reneged on a 2020 promise to curb a swath of resisting arrest charges, which by the office's admission led to historically discriminatory prosecutions.
At issue is the case of Thuan Le, who was charged late last year with a misdemeanor and what is known as a standalone resisting arrest charge — a “naked 148” in court parlance — meaning that Le was accused of obstructing or impeding a police officer but not of any other accompanying crimes.
To the county Public Defender's Office, that constitutes a violation of one of District Attorney Jeff Rosen's touted “Bend the Arc” prosecutorial reforms he instituted three years ago, in the wake of a national reckoning on criminal justice conventions inspired by the police killing of George Floyd in Minneapolis.
Further proof of that notion, according to Deputy Public Defender Karina Alvarez, is how the prosecutor in Le's case asked a judge to exclude any mention of George Floyd or the “Bend the Arc” reforms at Le's misdemeanor trial, which was scheduled to start last month. The trial was avoided after Le agreed to a court-proposed resolution to expunge the charge if he went three months with no law violations, but he later changed his mind. At the end of January, Alvarez filed a motion for dismissal set to be heard last week.
“We've heard a lot about progressive change in the DA's office, and yet we still have a person of color arrested in his driveway on a standalone 148,” Alvarez said. “And they moved to prevent the defense from contextualizing his case with racialized police violence and them deviating from their own policy.”
Rosen's office pushed back on her characterization, and in a response filing stated that “the Bend the Arc Reforms are not law — they are internal policies of the District Attorney's Office. It is within the discretion of individual prosecutors
to determine when there are facts that warrant an `extraordinary circumstance' when it comes to charging stand-alone violations of Penal Code section 148.”
The prosecutors' filing suggests that Le was one of the exceptions, to public defenders' objection. Rosen supported that stance, and asserted that his office has stuck to the substance of his pledge.
“Our community demands and deserves fairness, safety, and peace. Supporting fairness, I raised the legal bar and scrutiny on standalone resisting arrest charges, reducing them by more than 90 percent in less than three years,” Rosen said in a statement to this news organization. “Supporting safety, I will always look to hold those accountable who selfishly disrupt the peace and security of where we live and raise our families.”
Alvarez argues in her court motion that the DA's pledge to move away from charging standalone 148's was born from a recognition that such arrests and charges disproportionately affected Black people and people of color, and that doing so in Le's case was a demonstration of racial bias. Alvarez is now seeking to get the case dismissed outright by citing the Racial Justice Act, a 2020 law authored by San Jose-based Assemblyman Ash Kalra that allows legal challenges to charges, convictions and sentences influenced by systemic bias.
The law is slowly gaining traction in courts statewide because of disagreement over how it should be applied, but it has fueled some notable wins for defense attorneys, including a Contra Costa County case where a judge overturned two Antioch murder convictions after finding a prosecutor used racially coded language to unduly influence a jury.
According to court filings from both sides, Thuan Le was arrested Oct. 5 after San Jose police officers were called to his home to respond to noise complaints related to a gathering Le was having with a half-dozen friends in which they were singing karaoke amplified by stereo equipment. Le turned down the music after officers arrived, but he refused to exit his home at their request, and insisted on talking to them from his front doorway.
Both sides stated that Le had some language-barrier issues during the exchange; at some point, an officer decided that Le was impeding their work, followed by police detaining and handcuffing him and putting him in the back of a patrol vehicle. All the while, other attendees at the party openly antagonized the officers, including one who reportedly said, “This is why George Floyd died.”
A police report states that Le was given the choice of receiving a citation for disturbing the peace and promising to avoid further noise complaints, or be taken to jail, and he said, “Take me to jail.” Le was booked and held overnight at the Santa Clara County jail.
The DA's office says the situation is not as simple as Alvarez and her office have portrayed it. In their response filing, prosecutor Joshua Yoo notes that police officers were patient and promptly had a Vietnamese-speaking officer talk to Le, and that the Oct. 5 police call was the third noise complaint made about his home in two weeks.
Yoo cites his own Asian heritage, the presence of Asian police officers at the disturbance call, and that some of the complaining neighbors were Asian, to support his argument that neither the arrest nor the charge was tinged with racial bias, and that allowing mention of the “Bend the Arc” reforms and George Floyd would be “irrelevant and prejudicial.” Judge Le Jacqueline Duong granted Yoo's exclusion request prior to the nixed trial.
“Defendant created the circumstances that resulted in his arrest,” Yoo wrote. “Prosecuting him for (resisting arrest) was just.”