By Tracey Kaplan
SAN JOSE -- After throwing the book at a private contractor accused of accidentally causing the massive 2008 Summit wildfire, Santa Clara County prosecutors Monday abruptly dropped the most serious charge against the defendant on the brink of trial.
Prosecutors said they weren't confident they could prove a felony reckless-burning charge against contractor Channing Verden. But they also were about to confront a defendant who going to claim he was the victim of a double standard -- by pointing to the fact that prosecutors never charged a state fire captain with any crime, even though the captain's arguably similar actions had sparked the subsequent 2009 Loma fire.
"In the name of justice, they have taken an important step in the right direction,'' said Verden's lawyer, Deputy Public Defender Javier Rios. "My client has been put through the mill, while their own guy, the firefighter, didn't even get charged with a misdemeanor.''
Both fires resulted from the failure by the contractor (in the Summit fire) and the CalFire captain (in Loma) to extinguish large piles of debris they burned during brush-thinning projects -- intended, ironically, to reduce the risk of destructive wildfires in the Santa Cruz Mountains. Both blazes cost millions to suppress -- about $4 million for the Loma fire and $14.85 million for the Summit fire.
Monday's dismissal of the felony reckless-burning charge came as an immense relief to Verden, who has exhausted his savings on his years-long legal defense, Rios said. Verden faced a maximum of four years in state prison if he had been convicted of the felony.
Verden still faces one misdemeanor count of failure to prevent the escape of a fire, which carries up to six months in county jail. He has pled not guilty and refused to accept a deal offered by prosecutors to cop to that misdemeanor count in exchange for dismissal of the felony.
Prosecutors contend they charged Verden, but not CalFire Capt. Alfred Gomez with even a misdemeanor in connection with the Loma fire for several reasons, including that Gomez and his crew took more care to prevent the fire from escaping than Verden did.
Yet the appearance of a possible double standard, coupled with testimony from neighbors that firefighters were not consistently vigilant about making sure controlled burns were put out, undermined the felony charge. In the Loma fire, for instance, Verden did not use water to douse his piles despite being advised by Calfire to do so. But the captain told investigators he only used "a little bit'' of water because another firefighter said he needed it. That firefighter also promised to take the blame if anything went wrong with Gomez's piles.
The fact that the Summit fire caused far more damage apparently had nothing with the prosecution's decision to prosecute Verden, but not the firefighter. It started May 22, 2008, destroyed 63 homes and 69 outbuildings, and charred 4,280 acres in two counties.
In contrast, the Loma fire on Oct. 25, 2009, destroyed a mobile home, four RVs, seven outbuildings and one pickup truck, and scorched only 485 acres. CalFire has agreed to pay $143,500 so far to settle residents' lawsuits, according to one of the their attorneys, Patrick Goggin.
CalFire spokesman Daniel Berlant said the agency revised its procedures in 2011 as a result of the Loma fire. The policy now calls for crews to make sure they have "sufficient suppression resources'' to prevent a controlled burn from escaping, though it doesn't specifically require them to have water on hand.
Prosecutor David Boyd said he dropped the felony charge against Verden because it was the right thing to do, not because of the strength of the defense case. Rios recently turned over statements to Boyd from mountain residents about CalFire's lax practices regarding controlled burns at the time, including leaving smoldering burn piles unattended.
"The facts and circumstances of the Loma Fire cast some doubt, perhaps even a reasonable doubt, on whether it could be proved that Mr. Verden acted recklessly under the law,'' Boyd said.
He said one reason his decision came at the 11th hour was because the case kept changing hands, as Verden went through three private attorneys before being assigned a government-appointed attorney.
The prosecutor also defended the office's decision not to charge Gomez in connection with the Loma fire.
"...the fire burning methods used by Cal Fire in the Loma Fire and Mr. Verden in the Summit Fire, and the conditions, were vastly different,'' said Boyd, " and therefore it would be incorrect to even attempt to suggest that the only difference between the two cases was the potential defendant's employer.''
In court documents, prosecutors allege Verden left smoldering two piles of brush he was hired to burn, in violation of state regulations that require debris piles to be doused. A month later when winds picked up, sparks from those piles ignited nearby brush and trees in a remote section of the mountains and became the weeklong fire, according to the documents.
Prosecutors contend that Verden obtained a burn permit from the Bay Area Air Quality Control District, but failed to get a local permit to burn 20 tons of brush and fallen pines during one of the driest springs on record. He also ignored two face-to-face warnings by fire officials about the oversize piles of debris and the lack of an on-site water supply.
But his attorney noted the Summit fire did not start while Verden was actually doing the allegedly negligent burning.
"It would have been one thing if it started then," noted Rios, "but that's not what they're alleging happened.''
Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/merccourts