By Doug Sovern

MARTINEZ (KCBS) — In the latest chapter of the ongoing Bay Area reaction to the Michael Brown and Eric Garner cases, Contra Costa County District Attorney Mark Peterson has fired back at the public defenders, who accused him last week of racially biased prosecutions.

LISTEN:


Last week, Bay Area public defenders held a rare political demonstration chanting, “Black lives matter.”

Contra Costa County Public Defender Robin Lipetzky and Deputy Public Defender Brandon Banks accused Peterson of treating black defendants more harshly—with more serious felony charges and higher bail amounts—and said local judges are biased too.

On Tuesday, Peterson sent Lipetzky a three and a half page letter, refuting her charges, one by one, and calling the public defender “a bald-faced liar.”

“Her allegations are so inflammatory and they’re so false. She, basically, is alleging our office and other offices of disparate treatment of people of color, which is incorrect—it’s false, it’s inflammatory and I wanted set forth all the facts prove it’s false,” Peterson said. “She knows this isn’t true and she still says it—that’s a lie.”

Peterson told KCBS that 13 percent of Contra Costa’s judges are black while the county African-American population is less than 10 percent.

He said that his office does not consider race at all in charging decisions, and no judge has ever found that he engaged in discriminatory prosecution. The DA that said, to him, all lives matter— including the lives of African-American crime victims.

In a written response, Lipetzky states that she does not accuse any law enforcement agency, the Sheriff, Mr. Peterson, the Probation Department or the bench of intentional racial prejudice or discrimination.

“People of color are disproportionately affected by certain D.A. filing decisions and judicial decisions regarding who is released and who remains in custody pretrial. Juvenile clients, many of whom are children of color, are transported to court in hand and leg shackles in public view,” she states in her letter. “These are painful truths. As I said in my comments, I welcome an open and honest discussion of the practices that give rise to these truths.”

The full text of her response can be found at the after Peterson’s.

Here is the full text of Peterson’s open letter:

Martinez, CA – Last week, at a noontime rally, Contra Costa Public Defender Robin Lipetzky and Deputy Public Defender Brandon Banks made several allegations about racial injustices that supposedly exist within our local criminal justice system.  As the chief law enforcement official in this county it’s my duty to respond to the Public Defender’s inaccurate statements:

Last Thursday, the Public Defenders hurled a series of defamatory accusations at our hardworking prosecutors, at our superior court judges, at our Probation Department, and at our Sheriff.  I must respond to those unfair, unsubstantiated, and misleading charges.

 

The Public Defenders alleged that black men are charged with felonies instead of misdemeanors, suggesting that those decisions are racially biased.  That suggestion is absolutely false. We don’t consider race in our charging decisions.  We file the charges supported by the evidence, against whoever committed the crime, no matter their race.  The Public Defenders alleged that young men of color are charged with gang crimes because of the neighborhood where they grew up.  That statement is also patently false.  Our office files those type of charges if warranted by the evidence, and gang charges are required to be proven in a court of law beyond a reasonable doubt.

 

If the Public Defenders believe that our office’s decision to file felonies instead of misdemeanors, and our filing of gang allegations, is racially biased, they can certainly challenge our charging decisions in court by alleging discriminatory prosecutions.  In fact, I’ve seen them raise this complaint multiple times in my 30 year career, but not once have they ever convinced a neutral judge that it has actually occurred.  We train, teach, and practice the notion of colorblind justice, because all lives matter.   

 

 The Public Defenders further asserted that black suspects remain incarcerated before trial because the courts set bail that only the very wealthy can afford. That’s a gross mischaracterization of what occurs.  The Superior Court uses a bail schedule that’s based solely on the seriousness of the charges, not the wealth of the accused.    Bail is set at high amounts when the offenders pose a risk to the community’s safety.  That’s because all lives matter.

 

 In fact, the judges of the Superior Court and the District Attorney’s office have been working together for several months with the Public Defender’s Office to improve the bail system by utilizing a “risk assessment tool” regarding releases from custody, rather than just bail amounts.  Not surprisingly, the Public Defender failed to mention this fact in her statement.  

 

 The Public Defender insinuated that there’s systematic exclusion of jurors occurring, based solely upon the color of their skin.  That claim has been made and the issue has been litigated thoroughly, many times in the course of my 30 year career.  Not once during that period have they ever prevailed in court.  Our state Court of Appeal has ruled repeatedly, that no systematic exclusion has, or is occurring, in Contra Costa County.  The Public Defender failed to mention this fact in her statement.  

 

 The Public Defender suggested that people of color are over-represented in our jails. The fact is the jails are populated disproportionately by those who commit the most serious crimes.  Unfortunately, it’s a sad fact that these crimes are perpetrated disproportionately by poor people of color, and it’s equally true that these violent crimes are perpetrated disproportionately upon poor people of color.  The solution to this sad problem isn’t to inaccurately blame racial bias by law enforcement, such as the Sheriff’s Office which operates our jails, as the cause.    

 

The Public Defender stated that juvenile offenders of color are shackled in public and “paraded” across the street, and it’s disparate treatment of them based upon their race, by the probation officers who escort them.  In fact, juvenile offenders of all races are sometimes led into court here in downtown Martinez when there’s insufficient capacity to have their cases heard out at Juvenile Hall.  This occurs because the law requires that juveniles be incarcerated and brought to court separately and apart from adults.  You can only imagine the howls of protest that would emanate from Public Defender Lipetzky if the Probation Department tried to have their juvenile offenders use the underground tunnel that’s used daily to transport adult offenders from the jail to the criminal courthouse.  The sad fact is that the County’s over-stretched budget currently lacks the ability to fund a multi-million dollar juvenile detention facility adjacent to the jail in downtown Martinez.  If Public Defender Lipetzky wishes to donate a portion of her department’s budget to fund such a facility, I urge her to do so. 

 

The Public Defender claimed that our office treats black suspects differently in our criminal filing decisions, and infer that black lives don’t matter to us.  Nothing could be further from the truth.  During the last four years our office has filed tens of thousands of criminal cases. The Public Defender cannot cite even one case where charges were filed based upon the race of the suspect.  Shame on her for her bald faced lie. 

 

All lives matter.  The life of every citizen – regardless of color – matters.  That’s why we work tirelessly to obtain justice for crime victims.  The harsh reality, and what truly needs to be addressed, is that people of color are more likely to be the victims of violent crimes than others.  Those of us in law enforcement work daily to protect everybody, including those of color who are victimized disproportionately.  94% of African American homicide victims are killed by African Americans.  In fact, Malcolm X declared: ”I don’t think there is anything more destructive than black people killing each other.”  When we struggle to bring justice to the family members of slain African Americans, we do so because all lives matter. 

 

In fact, since I took office as District Attorney in 2011, our office, along with the Sheriff’s Office, the Probation Department, and local law enforcement have redirected a tremendous amount of our resources into trying to reduce violent crime in minority neighborhoods.  That violent crime primarily involved the African-American community.  Young black men were shooting other young black men.  We helped to implement the Ceasefire Program, a community based program, designed to stop men of color from murdering other men of color. 

 

The very good news is that we have made considerable progress.  While Richmond has suffered 14 homicides this year, it is down from a recent high of 49 in 2009.  Unfortunately, the vast majority of those homicides involved African-American victims.  Our office is committed to making certain all black lives matter, including the victims of murder and other crimes, and not just the individuals accused of those crimes.  While our office and law enforcement work together to charge and to convict the individuals responsible for these murders, the Public Defender’s goal is to free these accused killers from custody. The public can decide who is more committed to making certain black lives matter.    

 

 Perhaps most corrosive of all, however, is the Public Defender’s assertion that their clients of color receive disparate treatment by our county judges.  That’s simply not true.  In fact, the public defenders cannot cite a single case where a judge issued a ruling against an individual simply based on his or her race.  Interestingly, the latest census figures reveal that 9.6% of this county’s residents are African-Americans, whereas 13% of our county’s superior court judges are African-Americans.  The Public Defenders have maligned the entire bench of hardworking jurists who work every day to dispense justice in a colorblind manner.

 

Attorneys in our office are ethically prohibited from taking race into account in any of our prosecutorial decisions.  We provide constant training from experts inside and outside our office to ensure that our prosecutors operate at the highest ethical levels.  Our prosecutors operate every day by the credo, “Seek Justice, Serve Justice, Do Justice,” and they work long hours with below average pay in order to vindicate victims’ rights in order to protect our community.   

 

 Our prosecutors are charged with seeking justice in each and every case, and to do so in a colorblind fashion.  They’ve got an ethical duty to protect not only society, but also to protect the constitutional and statutory rights of those whom they prosecute.  Our superior judges likewise work each and every day to dispense colorblind justice.  Neither of those parties – prosecutors or judges – have the luxury of the Public Defenders, whose sole duty is to the criminals whom they’re paid to represent.  It must be easy for the Public Defenders to stand on the courthouse steps and hurl false, racially charged accusations.  Meanwhile, our prosecutors, our judges, our probation officers, and our peace officers have been going about their daily business, working to provide colorblind justice in the service of public safety here in Contra Costa County. 

 

I am well aware of the very public discussion of race and the criminal justice system.  However, the Public Defender‘s false, insulting, and inflammatory comments do nothing to positively contribute to that dialogue.  When false accusations are thrown about in public, no one is well-served.  Instead, I happen to agree with New York Police Commissioner William Bratton who said “Reducing crime helps to reduce racism.”  That is one of the reasons why our office is working so hard to reduce crime.  Let me assure everyone that black lives matter to all of us involved in the criminal justice system in Contra Costa County.  This is shown by the work our employees and agencies do each and every day.  In fact, a more accurate statement is that “All Lives Matter.” 

 

 

Mark A. Peterson

District Attorney

 

 

Here is the full text of Robin Lipetzky’s response:

  Last week on December 18 members of my department, in coordination with members of Public Defender offices around the Bay Area, held an event to join their voices with the many across the country who are speaking out about injustices in the criminal justice system. I was told of this event a few days before it was to take place. My only involvement in advance of the event was to ask the organizers to change its scheduled time from 8:00 a.m. to the lunch hour so as not to disrupt court business or take time out from the work day. 
 
           The event itself was not a rally.  It was a short, silent, symbolic, peaceful and respectful public statement that Black lives matter to Public Defenders. The event lasted less than ten minutes and was completely silent but for two brief statements, one by an attorney in my office and one by me.  Here is the full text of  my statement, which lasted less than 90 seconds:
 
I’m Robin Lipetzky. I am the Public Defender for Contra Costa County. You just heard from Brandon Banks who is a representative of our department.
 
            I want to be here today to join in solidarity with the people of my department and with the people across this country who have been speaking once again about the disparities in our criminal justice system.
 
            We here in the Public Defender’s office walk through these halls of justice day in and day out and we see the immediate effects of the disparate treatment on our clients.  We see it in the fact that people of color are underrepresented on our juries and they are overrepresented in our jails.  We see it when young men of color, our juvenile clients, are shackled in public and paraded across the street to their court appearances.  We see it every day in judicial decisions and in District Attorney filing decisions.
 
We want to participate in this discussion that has started, that was sparked by the death of Michael Brown, and that needs to continue.  We welcome an open and honest discussion in Contra Costa County and I invite all of the other partners in this system to start looking at their practices and participating with us in this discussion
 
          
           I did not accuse any law enforcement agency, the Sheriff, Mr. Peterson, the Probation Department or the bench of intentional racial prejudice or discrimination. I did point out, accurately in my view, that there are practices within our system that have a disparate impact on communities of color. People of color areunderrepresented on juries and overrepresented in our jails. People of color are disproportionately affected by certain D.A. filing decisions and judicial decisions regarding who is released and who remains in custody pretrial. Juvenile clients, many of whom are children of color, are transported to court in hand and leg shackles in public view. These are painful truths. As I said in my comments, I welcome an open and honest discussion of the practices that give rise to these truths.
 
           Mr. Peterson suggests that the better approach is to raise these issues in private meetings rather than speak about them publicly. I do raise these issues in private meetings on a regular basis and will continue to do so. I will also continue to urge a public and honest discussion about injustices in the criminal justice system.
 
           The members of my office that attended this event, including attorneys, support staff, investigators and paralegals, did so because they personally feel strongly about these issues.  Members of this office are acutely aware of the impact of institutionalized bias on our clients.  
 
          None of us, me included, is free of the implicit bias that comes from growing up in a country that continues to grapple with the vestiges of slavery. I stand by my call for an open and honest discussion in Contra Costa County about how we can begin to rectify disparities in our criminal justice system.    
Robin Lipetzky, Public Defender for Contra Costa County
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