11:17 PM PST on Thursday, March 11, 2010

By RICHARD K. DE ATLEY
The Press-Enterprise

In the race for Riverside County district attorney, both sides are using statistics to frame how Riverside County District Attorney Rod Pacheco has been doing his job.

The conviction rate for felony charges taken to trial by Pacheco’s office in the last two years is less than 45 percent, opponents Paul Zellerbach and Michael Flory have said separately.

The district attorney’s office says state-gathered statistics show prosecutors are winning convictions in more than 90 percent of felony cases.

Zellerbach, of Riverside, was a Riverside County prosecutor for 22 years who was elected a Superior Court judge in 2000. He is on unpaid leave of absence for the campaign. Flory, a Norco resident, is a prosecutor in Orange County.

Their figures come from Riverside County Superior Court Judge Gary Tranbarger, who has been privately gathering trial outcome data since 2006.

The district attorney’s office has disputed Tranbarger’s methods and motives and has blocked Tranbarger from hearing criminal trials. The office also has complained about him to the state Commission on Judicial Performance.

Tranbarger has declined comment, but has noted in an e-mail no action has been taken against him for his data-gathering by the commission, which can discipline or remove a judge.

Tranbarger’s assessment shows juries are returning “mixed” verdicts of guilty, acquittals or findings on lesser charges.

Zellerbach said figures from 1997, when the office was under District Attorney Grover Trask, shows a trial conviction rate of 68.7 percent for felony charges.

With courts congested because of too few judges, the charges prosecutors take to trial should be more successful, Zellerbach and Flory have both said.

Pacheco’s office has pointed to high scores in statistics gathered by the state attorney general’s office, which counts the percentage of cases that end with a felony conviction.

The 2008 number is so high — 99.2 percent — that Chief Deputy District Attorney Bill Mitchell said it should be adjusted downward, to 93 or 95 percent.

Mitchell called Tranbarger’s figures “misleading and inaccurate,” noting Tranbarger lists Raymond Lee Oyler’s 2009 case as “all guilty” when jurors could not decide on three arson charges, which were dismissed.

When Zellerbach prosecuted the William Suff serial murder case, Suff was convicted on 10 murders and acquitted of one, Mitchell said.

“Under Judge Tranbarger’s statistical record keeping, that would be a mixed verdict… does that shed light on the efficacy or the merit of that prosecution? It doesn’t…it’s pretty obvious the purpose is political” Mitchell said.

Tranbarger said in an e-mail he sends his results to the district attorney’s office and invites any corrections. Mitchell said the office does not respond because it does not regard Tranbarger’s statistics as an official record.

Tranbarger’s numbers are not all-encompassing.

They look at cases that go to trial, about 2 percent of the total cases filed.

In fiscal year 2007-08, the state Judicial Council said there were 15,404 felony cases that ended with guilty pleas before reaching trial in Riverside County, and Tranbarger’s data do not cover those.

Zellerbach said Tranbarger’s numbers will stand up to any analysis, while the numbers from the attorney general’s office “can obviously be very misleading.”

In an example from the attorney general’s statistics office, if a person is arrested for five offenses — felony assault, robbery, drug possession, trespassing, and drunk driving, but convicted in court only on the trespassing charge, the file would show a conviction for trespassing. The office does not give any weight to dismissed counts.

“The way Rod calculates it, that’s a win, that’s a conviction. The way I calculate it, no, you should win every charge, or just about every charge, that you file,” said Zellerbach.

“There’s really no other way to tabulate the effectiveness of the criminal justice system, without trying to isolate each case,” Mitchell said. “Either a person’s case is dismissed, or he’s held accountable, to a varying degree.”

Tranbarger cautions that no outcome conclusions should be made on “mixed” verdicts without examining each case.

“Some mixed results are clearly a ‘win’ for the defense, some are clearly a ‘win’ for the prosecution, and some are unclear,” he has said in notes accompanying his data.

“The ambiguity of the ‘mixed’ category exists, in part, due to my goal of making these stats as objective (not subjective) as possible,” he said in an e-mail. “I am confident that these statistics would be exactly the same regardless of who was involved in their collection.”

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