In the Nov. 6 election for District Attorney, Stanislaus County voters will choose between an incumbent with 12 years of experience leading the office through lean budget years and her challenger, who says he wants to bring needed stability and competent leadership prosecutors deserve.
District Attorney Birgit Fladager is seeking her fourth term. She said her challenger, Deputy District Attorney John R. Mayne, is a smart prosecutor and a good trial attorney, but he doesn’t have the managerial experience or the insight on how to lead an office of nearly 150 employees, including about 50 prosecutors.
“I’m still the best choice in terms of keeping things going the way they should be going,” Fladager said. “He doesn’t have that background and knowledge that would allow him to really step in running an office of this size, partnering with all these other agencies.”
Mayne said Fladager is responsible for he calls a “massive” rate of attorneys leaving the office, forcing prosecutors with little experience to handle complicated cases.
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“We’ve failed in too many cases to differentiate the innocent from the guilty,” Mayne said. “The first step is to create an atmosphere where we really genuinely care that the people we prosecute are guilty of crimes, and that we also care to make sure that appropriate justice is administered to the genuinely bad people.”
Mayne has worked as a prosecutor in Stanislaus County for the past 17 years. He says he has sent dozens to prison for life and has dismissed other cases when there was substantial doubt about the defendant’s guilt.
Fladager, who in August was sworn in as the president of the California District Attorneys Association, has steered her office through a tough budget crunch. She started her first term in 2006 with 142 employees, including 53 attorneys. At the height of the recession, she said, her office dropped to 121 employees, including 44 attorneys.
She says the DA’s office always has had turnover as prosecutors start their careers there and find more attractive pay, benefits or location with other jobs.
“I’ve been living this now for 12 years. I have seen the evolution of the criminal system,” Fladager said. “I’ve seen what’s working and what’s not working. I certainly have some insight into what the near future shows or holds in terms of what may be coming down the pike.”
Fladager fought off three challengers in the June primary election, receiving 48 percent of the vote. Since she failed to garner more than 50 percent of the vote, Fladager faces Mayne in a runoff.
Even though she had a 26-point lead over Mayne in the June election, combined the challengers earned more votes than she did.
“They made a statement that the current district attorney should be replaced,” Mayne said. “I am the alternate option, and I have a vision of better justice for this county.”
Steven O’Connor, a Modesto criminal defense attorney, received about 13 percent of the vote as a challenger in the June primary. He told voters that Fladager has been behind a number of wrongful prosecutions, including his friend Modesto attorney Frank Carson, creating a culture of domination, fear and control.
O’Connor recently told The Bee that he had not endorsed either of the candidates, but he said that he would now recommend that voters choose Mayne in November.
“While I do have some concerns that he is not open enough to the fact that rehabilitation is as important as punishment, I believe that he is ethical, and that Birgit is not,” O’Connor said.
Fladager said she doesn’t believe the prosecution against Carson and his co-defendants has harmed her legacy as district attorney.
“I hope my legacy is defined by the overall body of work that’s been done by everyone in my office, because everyone works together,” Fladager said. “One case is not the definition of an office. It’s really what we do for victims and how we can make the community safer.”
Mayne has been critical of investigations of police shootings conducted by Fladager’s office. He says they take too long to complete, pointing to the investigation into the shooting of Anthonie Allen-Hayes, who survived.
On Sept. 10, about five years after the shooting, Fladager’s office announced that Modesto Police Officer Tyler Houston was justified in shooting Allen-Hayes, who was running away while pulling a gun from his waistband.
“The delays in the officer-involved shooting investigations are a unjustifiable,” Mayne said. “The vast majority of officer-involved shootings are noncriminal, and officers deserve to get cleared if it’s noncriminal. And the public deserves a speedy resolution.”
Fladager said the Allen-Hayes shooting investigation was delayed because the suspect bailed out of jail, failed to appear in court and remained a fugitive for four years. It’s her office’s policy not to review these cases until after the outcome of any related criminal cases.
She said prosecutors also have to be concerned with the suspect’s due process rights, and announcing the outcome of a police shooting investigation could influence a jury.
“You absolutely want to get it right,” Fladager said. “There is no reason to rush that kind of a decision, because it’s very important.”
She said Mayne has never been assigned to review a police shooting, and it takes a long time for investigators to review all the evidence, data and video of police shootings.
Mayne said he has been called to be the first prosecutor on the scene of a police shooting, start the initial investigation and then hand it off to another prosecutor. He said shootings recorded with officers’ body cameras should take 90 to 120 days to complete, because they’re easier to analyze. Without body camera video footage, he said an investigation should take several months, rather than years.
Last month, Gov. Jerry Brown signed legislation that increases transparency around officer shootings of civilians by expanding access to personnel and video records. Law enforcement unions strongly opposed the legislation, arguing it could put their members at risk.
“There’s a difference in letting people who want to make sure they are getting an honest account see what happened and having the videos published on YouTube,” Mayne said. “But in most cases, such shooting videos can and should be released.”
U.S. Immigration and Customs Enforcement agents looking for those suspected of entering the country illegally have made arrests in courthouses throughout the state, including a Modesto man facing a misdemeanor charge in Stanislaus Superior Court.
Advocates say immigrants will be less likely to testify as witnesses, victims or face their charges as defendants if they fear ICE agents will be waiting to arrest them at the courthouse.
Fladager believes the state’s sanctuary law prevents arrests at county jails, resulting in some ICE arrests at courthouses.
“(ICE agents) don’t need to be in the courthouse,” Fladager said. “We want victims and witnesses to come to court, to be able to be heard without fear of getting picked up.”
Mayne said he doesn’t intend to turn the District Attorney’s Office into an immigration police, because you don’t want to discourage victims or witnesses from seeking justice.
When asked whether if he thinks it’s wrong ICE agents are arresting people in courthouses, Mayne answered, “It’s a case by case situation.”
Modesto attorney Patrick Kolasinski, whose primary practice is immigration law and criminal defense, said ICE arrests in the courthouse have had a terrible effect on the community. He said a district attorney should use the office to take a clear stance against any policy that deprives equal access to the justice system.
“I have seen these effects first-hand, with clients telling me they are afraid to come forward as victims or witnesses because of a fear that ICE is scoping out courtrooms,” Kolasinski said. “The fear of ICE is palpable, even if ICE isn’t targeting witnesses directly, and that fear makes the job of other law enforcement agencies, including the DA’s office, harder.”
Kolasinki also challenged Fladager in the June primary, receiving nearly 16 percent of the vote. He has since publicly endorsed Mayne, even though Kolasinski says he and Mayne disagree — sometimes strongly — on a lot of issues.
“The DA’s office is in dire need of reform, and I believe that John honestly wants to do that,” Kolasinki said. “The electorate clearly sees a need for change, and that was reflected in the vote counts (in June).”