SAN JOSE -- Prosecutors threw the book at an unemployed San Jose truck driver recently, charging him with felony assault for allegedly taking a swipe at an acquaintance with a metal pipe, even though no one was injured.
But the same District Attorney's Office has been grappling for more than two weeks with whether to charge 49ers star linebacker Ahmad Brooks with any crime for conking teammate Lamar Divens in the head with a beer bottle three times, leaving him bloodied and requiring stitches.
The difference in how Santa Clara County prosecutors handled the truck driver's case and others like it, compared to how they're dealing with the Brooks matter, is fueling a debate over whether Brooks and other top athletes with multimillion-dollar salaries, legions of fans and ties to popular sports franchises get preferential treatment.
In a sign that the DA's office itself is divided over exactly how to proceed, line prosecutors obtained a warrant for Brooks' arrest on felony assault charges in late June -- only to have it frozen a few days later by higher-ups.
In the meantime, the Mercury News conducted a review of the assault cases the office has filed in the past eight weeks to see where the alleged incident with Brooks may fit in. The case is still under investigation, but the 20-page arrest warrant included synopses of tape-recorded statements from Divens and two other witnesses, as well as police reports.
The allegations against Brooks appear worse than in cases the DA has charged as misdemeanor assaults. They are also arguably worse than the metal-pipe incident but less egregious than many other incidents charged as felonies.
Asked why the office was proceeding so cautiously on what appears to be a routine matter, chief assistant Jay Boyarsky has noted the high-profile nature of the case, saying, "It's not every case that's on ESPN's crawl." A cautionary tale is the 2006 false accusation of rape against members of the Duke University lacrosse team, which resulted in the disbarment of the overzealous lead prosecutor in North Carolina.
As the 49ers prepare to open training camp next week, the cloud is still hanging over Brooks' head. The star linebacker signed a six-year contract extension last year worth $44.5 million, with $17.5 million guaranteed. Last season, he helped clinch the NFC Championship by knocking down a key third-down pass to thwart an Atlanta Falcons' drive in the 49ers' 28-24 win Jan. 20.
He and the team have declined to comment, pending a decision by either Assistant District Attorney Karyn Sinunu-Towery or District Attorney Jeff Rosen. Sinunu-Towery has stressed she will not be influenced by Brooks' fame or the team's popularity. The 49ers will be moving next year into a new, $1.3 billion stadium in Santa Clara.
The controversy stems from a June 8 incident in which Brooks, 29, allegedly struck 49ers nose tackle Divens three times in the head with a beer bottle and then punched him in the face during an argument over car keys outside Brooks' house in San Jose. According to police reports, Brooks, who was drunk, demanded his car keys back from a sober Divens, the designated driver. Divens was reluctant to give Brooks the keys, which prompted the unexpected attack, according to court documents.
Brooks then allegedly threatened Divens, saying if Divens didn't leave, he would get his gun.
During the past two months, the DA's office reviewed 84 possible assault cases, ranging from bar spats to convenience-store robberies in which someone was injured. Prosecutors weigh dozens of factors in filing any case, including their chances of winning and whether filing is the right thing to do.
The group of prosecutors who issue cases rejected eight, or nearly 10 percent. The records in those cases -- and thus the details of the incidents -- are not public. The same group also initially labeled the Brooks matter as "no-file." But a high-ranking lawyer in the office thought otherwise (as did line deputies in the central felonies unit) and brought the case to Sinunu-Towery for review since she supervises the team that would handle it.
Known as a "wobbler," assault, or Penal Code 245(a)(1), can be filed as a misdemeanor punishable by up to a year in jail, a felony punishable by a maximum of four years behind bars or not filed at all. Felony assaults are frequently reduced to misdemeanors under plea deals.
Six cases were filed as misdemeanors involving relatively minor clashes. In one, a female pedestrian stabbed a male acquaintance in the thigh over the way he parked, causing a minor injury that was treated at the scene.
But a person can be charged with felony assault even if no one is injured, as in the metal pipe case involving unemployed truck driver Augustin Romero.
Prosecutors say a metal pipe is potentially more dangerous than a beer bottle because it is heavier. Therefore, the mere act of trying to attack someone with it can be considered worse than hitting someone with a beer bottle. Under case law, however, even throwing a beer bottle at someone can be treated as a felony assault.
Other factors prosecutors weigh include the suspect's criminal history. The man accused of swinging the metal pipe, Romero, 46, has a few relatively minor drug busts on his rap sheet but no history of violence, a source familiar with the case said. He is accused of bashing out the windows of an acquaintance's truck on June 6 then coming back the next day, knocking on the acquaintance's door and taking one unsuccessful swing at him with the pipe and yelling a death threat as he left.
In Brooks' criminal history, he was accused of punching a woman in the face and accepted mediation on the charges in 2008, according to media reports. Brooks is 6 feet, 4 inches tall and weighs about 260 pounds.
Also, at the end of the 2005 season, Brooks was dismissed from the University of Virginia football team because of an unspecified "off-the-field" incident, according to the university. In 2003, he was charged with misdemeanor marijuana possession. Those charges were dismissed after he completed the requirements of his probation.
Aside from the metal-pipe incident, many of the felony assault cases filed by the DA's office appear more serious than the alleged incident involving Brooks. For instance, several of the alleged assaults occurred in the course of other crimes, including robberies involving knives.
In some cases, there were major injuries, including a fight at a party in which the victim's orbital socket and cheekbone were fractured. The list also includes assaults on police officers, no matter how small the injury, and incidents that were captured on surveillance video, since they are likely to result in a conviction.
Winning a felony assault case against Brooks may be more difficult, though not impossible, because Divens no longer wants to press charges against his teammate.
Dan Lebowitz, executive director of Northeastern's Center for the Study of Sport in Society, urged the 49ers to take the alleged incident seriously, given the recent arrest on murder charges of New England Patriots tight end Aaron Hernandez following a string of previous problems.
"Brooks punched a woman in the face, got dismissed from a major football program, which doesn't happen unless there's something big, and then there's this event," Lebowitz said. "You never know where that history is going to lead. No one is irreplaceable."
It's unclear what penalties, if any, Brooks would receive from the team or the NFL if he is charged or convicted. But if fans have their way, Brooks will not be charged. Said one: "We need him back on the field."