Two Deaths, Many Questions 

Scorched by the attention that followed a slaying in Hoopa and a fatal hit-and-run crash, Humboldt County prosecutors have begun opposing every single request for release under a legal deal called a Cruz waiver.

The temporary stance, which could last a few weeks, is aimed at giving prosecutors time to decide whether to set new standards for acquiescing to such releases, said District Attorney Paul Gallegos.

No matter what the prosecutor wants, in most cases it's up to a judge to decide whether to release a criminal who has already admitted guilt as part of a plea bargain. Presiding Judge Bruce Watson has declined repeated requests from the Journal to answer questions about Cruz waivers, pre-sentencing releases, plea agreements or any other court policies, including how the DA's temporary stand is affecting the criminal courts.

Gallegos' new policy comes as a man named Jason Anthony Warren sits in San Quentin State Prison, serving time for two crimes after failing to keep his end of a bargain that would have reduced that to just one.

Warren, 28, is a "person of interest" in the killing of Dorothy Ulrich in Hoopa, and the Sept. 27 crash that sent a Kia into three joggers, killing Suzanne Seemann, an HSU geography lecturer, and severely injuring two others ("Senseless Tragedy," Oct. 4).

He hasn't been charged in either crime. But no one disagrees that he was out of custody at the time of both deaths only because he didn't show up in court, as promised, on Sept. 7.

Warren, who had a juvenile record and had already served prison time as an adult for being a felon in possession of a weapon, was up in Hoopa in March when he had some kind of confrontation, according to court records.

From there it's murky.

An alleged victim initially told Hoopa police that Warren robbed him of $20 at knifepoint and tried to stab him when he wouldn't hand over the keys to his car. On top of that, two other people said Warren pointed a gun at them in Ray's Food Place.

Not so, Warren's attorney said in court filings. There was no robbery, just an angry confrontation when Warren had words with a man who had texted his wife. And the two people who reportedly saw the gun at Ray's were friends of the texter. And even so one of them later said he didn't see any gun; it was just an argument.

While all this was coming out, Warren was in Humboldt County jail, awaiting trial on charges of second degree robbery, assault with a deadly weapon and possession of a firearm by a felon, plus a bunch of enhancements that could have increased his prison time.

Somewhere along the way, Gallegos said on the phone last week, prosecutors realized that the only charge they'd be likely to make stick at trial was the felon in possession of a firearm.

From that perspective, the plea deal saved taxpayers the trouble and expense of a trial, and it avoided any risk of losing. Warren pleaded guilty on Aug. 24 to possession of the weapon, with the understanding that that would include an enhancement that would double his sentence.

If both sides had agreed to it, the plea deal could have stopped right there, and Warren could have stayed in jail until his formal sentencing.

The jail wasn't particularly crowded the day Warren pleaded. The daily census emailed to the courts that morning showed 369 inmates, down from 384 at the beginning of the work week and comfortably below the 391 maximum capacity.

But Warren or his attorney, Glenn Brown, apparently didn't want Warren to stay in custody until sentencing. So the plea bargain got more complicated. Warren also pleaded guilty to assault with a deadly weapon, with the understanding that if he showed up as promised on Sept. 7, that charge would go away. If he didn't show up, he'd be convicted of both crimes and he'd have a first "strike," a step down the path toward lifetime incarceration. His sentence would increase from six years to just over nine years.

With such serious consequences hanging over Warren's head, said District Attorney Gallegos, "to us it was ‘Wow, only a fool would not show up'" for sentencing.

Gallegos is one of the few people talking freely about the case. The echoing silence of other key players makes it virtually impossible to understand the context for the deal or how such waivers are commonly handled by Humboldt County courts.

Have lots of criminals been getting out on Cruz waivers after pleading guilty? Or not so many? Are Cruz waiver releases only commonplace for people facing probation, who wouldn't be looking at more time behind bars? Was the release of a man facing years in prison a standard practice or an aberration?

It turns out, these are not easy questions to answer by looking anywhere else in California, because there are so many regional differences.

"Almost anything associated with sentencing varies from county to county," said Lisa Rodriguez, a San Diego County deputy district attorney who has taught seminars on sentencing.

Both Scott Thorpe, chief executive officer for the California District Attorneys Association, and Gabriel Chin, a professor of law at UC Davis, concurred.

Because prosecutors, defense lawyers and judges in any given county see each other over and over, they tend to evolve a usual way of doing things, all three said. What's normal in one county might be atypical in another.

Gallegos' office files around 8,000 cases year, and he estimates that 90 to 95 percent of them end with some kind of plea bargain. Gallegos said he has no idea how many of those include some kind of pre-sentencing release after a guilty plea.

Public Defender Kevin Robinson, whose office had a conflict and so didn't defend Warren, said that his office almost always requests such releases when the expected sentence is probation or when the client asks for one. But when the client is facing a prison sentence, Robinson said, he doesn't necessarily expect the court to grant the request. He said he couldn't recall -- even in the roughest terms like more than half the time or less than half -- how often prosecutors oppose these releases or judges reject them. 

The judge who approved Warren's plea deal and release, Timothy P. Cissna, declined to speak either about this case or about general Humboldt County Superior Court procedures.

Glenn Brown, the attorney who Humboldt County pays to defend indigent people when the public defender has a conflict, represented Jason Warren and negotiated his plea bargain. Why did Brown ask for this particular release? Brown has no comment, on this or anything else. He failed to return six phone calls from the Journal over three business days last week, and did not respond to a business card left at his office. When the Journal called again on Monday, the seventh call was finally returned -- Brown had staffer phone back to say he won't give an interview or answer a single question on any subject.

Zack Curtis, the deputy district attorney who prosecuted Warren, said he can't remember what rationale, if any, Brown offered for seeking the release.

"It was something that came up on the eve of trial, so it was very much in the heat of battle," Curtis said in a phone interview. And there's nothing in writing explaining it. "This isn't like a transactional practice where you throw down everything in writing. You can't do that in criminal law. The caseload is too huge. You have to make snap judgments, and you do things as you go along."

For the prosecution, "just looking at it analytically, the decision was within the bounds of reason. It was what I would call a reasonable decision."

Curtis paused. He wanted to stress, again, that Warren hasn't been charged with anything, and even if he had, he's still innocent unless proven guilty. But at a minimum he definitely did not show up on Sept. 7 for sentencing.

And in that context, Curtis said, "I took a chance on him and it failed."

By the end of September, two women were dead, under circumstances that are still being investigated. Gallegos said his deputy was shaken.

"I've told him, ‘You did not kill these people,'" Gallegos said. "I can't find fault with Zack. ... I don't find fault with his decision-making process."

Of course, Zack Curtis wasn't the final decision maker. Judge Timothy Cissna was. And he's among the many who just aren't talking.