The office of the district attorney has charged four young San Jose State University students, all of whom are Caucasian, with misdemeanors for allegedly abusing their roommate, who is African American. The Silicon Valley/San Jose NAACP, community activists and many students of the university are demanding that those charges be elevated to felonies.
As a former judge who presided over criminal cases in Santa Clara County for the majority of my nearly 20 years on the bench, I have an intimate understanding of the workings of our criminal justice system. I presume that these four young men are innocent of these crimes and I believe that should their cases go to trial, a jury of their peers will do the right thing.
During and after my tenure on the bench, there have been five district attorneys in Santa Clara County -- Louis Bergna, Leo Himmelsbach, George Kennedy, Dolores Carr, and now, Jeff Rosen. While each had his or her own style and approach to leadership of the office, the reputation of that office has remained one of heavy handedness when it comes to filing charges. Commit a crime in Santa Clara County and there will be a very tough response from the district attorney's office.
So how is it that these four San Jose State students were charged, not with felonies, but with misdemeanors for conduct that, if proven to be true, was racist, assaultive, and ongoing? In an article in this newspaper (11/24/13), Jeff Rosen explained that his office "has filed the appropriate charges in this case, based upon the evidence." While I respect Mr. Rosen and applaud his leadership of the DA's office, I believe that the filing of misdemeanor charges against these young men sends the wrong message to the community, to the victim and, as importantly, to the accused.
A hate crime is a criminal act that causes physical injury, emotional suffering or property damage which is motivated by the victim's race, ethnicity, religion, sexual orientation, physical or mental disability. A felony is a serious criminal offense punishable by confinement in state prison; a misdemeanor is a less serious crime punishable by imprisonment in the county jail for not more than one year.
Some offenses, such as the battery and hate crimes with which these college students are charged, are "wobblers." A wobbler is a crime that can be charged by the DA's office as either a felony or a misdemeanor. The punishment for a wobbler, when it is charged as a felony, can result in the identical punishment as for a misdemeanor -- confinement in the county jail for up to one year. In this case the DA's office chose to file the wobbler crimes as misdemeanors.
What is the message that these misdemeanor charges send to the accused? Bully, intimidate, and racially torment your African American roommate and it's not really that serious. If the allegations are true, these sadly misguided young men, as well as other students who might be tempted to behave in this fashion, are in need of "felony" wake-up calls.
According to a statement given by Deputy District Attorney Erin West to the "Spartan Daily," the university's student newspaper, the conduct of the four students that was known to the office of the district attorney before the charges were filed included the following: uttering and writing racial slurs ("nigger" and "three-fifths"), forcing the victim to wear a u-shaped locking mechanism around his neck, blockading him in his room at least five times, decorating his living quarters with pictures of swastikas, Adolf Hitler, and the Confederate flag, and physically assaulting him.
The filing of misdemeanor, rather than felony charges, against these young men threatens to send a message to all of us, and especially to communities of color, that this egregious behavior is little more than a college prank gone awry. Dormitory hijinks are one thing; racism and torment, quite another.
The DA's Hate-Crime Brochure aptly states that, "The Santa Clara County District Attorney recognizes the far-reaching negative consequences that hate crimes have on our community." It is in the spirit of these words that I encourage the DA's office to revisit the charges, and in doing so, to take into consideration the tremendous and long lasting impact that this decision will have on those of us who live and work in this County.
Judge LaDoris Cordell, ret., is San Jose's independent police auditor. She wrote this for this newspaper.