Conservative Progress

Republican Mark Peterson is fighting to clean up the old boys' network in the Contra Costa County District Attorney's Office.

When longtime prosecutor Mark Peterson was elected district attorney in Contra Costa County in 2010, he took over a deeply divided office that had been plagued by cronyism, had a reputation for employing some of the state’s most arrogant attorneys, and was dogged by a lingering image problem related to sordid and highly publicized rape allegations involving two prosecutors. In the two years hence, Peterson has made progress in cleaning up the troubled office, and has begun to regain the public’s trust. But it hasn’t been easy. Three of his deputies, all of who were aligned with the office’s former regime, have sued him, and defense attorneys remain skeptical as to whether will be able to improve his prosecutors’ boorish behavior in court.

During the 2010 election campaign, Peterson, a conservative Republican who has built a reputation over the years for being a straight shooter, promised to root out corruption and improve transparency in the DA’s Office. He then defeated an entrenched regime that had controlled the office for decades. Traditionally, the CoCo County DA was widely viewed as being the most powerful person in the county, and succession in the office was carefully controlled by a cadre of attorneys, judges, and law enforcement officials who endorsed whoever the outgoing DA chose to succeed him.

That system had bred a centralized power structure, characterized by a top-down management style and a dog-eat-dog culture. And Peterson’s victory signaled that county voters were tired of a series of DA administrations that behaved as though they had been anointed rather than elected.

Still, the odds were stacked against Peterson winning the election. Numerous prosecutors had challenged the old boys’ network over the years, and all of them were defeated by a political machine fueled by endorsements from law enforcement agencies and large campaign contributions from the county’s five oil refineries. In addition, former and current deputy district attorneys say the office’s prosecutors were either bullied into supporting the old regime or they backed it because the continuity of succession reasonably assured them the good will they had cultivated with management would be honored by the chosen heir. In the 2010 election, that chosen heir was Dan O’Malley, a criminal defense attorney and former judge who also happened to be the son of a former Contra Costa County DA.

However, by 2010, the public had grown distrustful of the office, especially in the wake of the rape case involving then-prosecutors Michael Gressett and Holly Harpham (see “A Troubled Rape Case,” 10/28/09). O’Malley and the DA’s top administrators had been caught up in that scandal, and voters decided that it was time for a change in the office. Peterson won 57 percent of the vote despite a smear campaign by some of his supervisors in the DA’s office, having little support from his fellow prosecutors, unfriendly news coverage, and only one law enforcement endorsement, which came from police officers in Concord, where Peterson lives and had served as a city councilman. “It was a little embarrassing when the voter information pamphlet came out and Dan O’Malley had a list of law enforcement endorsements that barely fit on the page and there was one endorsement on the top of my page and a whole lot of white space below it,” Peterson said in a recent interview.

Since taking command, Peterson has learned that changing an office culture that was forged over decades is harder than it looks. He still faces pockets of deep resistance from those who maintain ties to the old regime, and the office’s public image has not improved as rapidly as he had hoped.

Nonetheless, Peterson has earned strong reviews from East Bay liberals, community activists, and members of the county’s criminal justice system — especially for his work in helping Richmond, a city that embraced progressive crime prevention strategies in recent years and has experienced one of the most significant drops in crime in Northern California.

Peterson also is confident that, in the remainder of his four-year term, he will continue to make positive changes and believes that his emphasis on inclusion and fairness in the office will help improve the public’s perception of it. “There’s more transparency and collaboration in the office now, and I seek a lot of input before making a decision,” Peterson said. “Of course, not everybody is happy once the decision is made, but a lot more people are involved and that’s a big change from the past.”

Before taking over as Contra Costa County’s top prosecutor, Mark Peterson served on the Concord City Council for fifteen years. He said his time on the council gave him a broader perspective on the complexities of government and law enforcement. He is a devout Christian and pro-death penalty Republican, but he said those designations don’t define him as a district attorney and that conservatism and progressivism are not necessarily at odds. Despite having a reputation as a law-and-order prosecutor, Peterson has thus far been one of the most progressive district attorneys that the county has had in decades. “After serving on the Concord City Council for fifteen years, I learned that government is a very complex thing,” said Peterson, who lives in Concord with his wife and three kids. “And after working in the District Attorney’s Office for 27 years, I’ve learned that locking somebody up and throwing away the key does not work.”

In an effort to enhance crime prevention through public services, Peterson has put an emphasis on improving communication both in his office and with the public. He has been scheduling meetings with school officials and with the county’s nineteen city councils, and has been speaking out at council meetings throughout the county. He also meets regularly with police chiefs to strengthen his office’s relationships with law enforcement agencies.

Within his own office, one of the first things Peterson addressed after his election was the deep division among prosecutors. The majority of the county’s prosecutors had been in the O’Malley camp during the election and there was a great deal of trepidation about how the new boss would treat them. The campaign had aggravated tension in the divided office to the point that a fistfight broke out between two senior prosecutors over a campaign issue. Post-election division among prosecutors also was the source of suspicion and lingering hostility. To calm the roiling waters, Peterson formed a twelve-member transition team that included a majority of O’Malley supporters. “It was a time to heal and I was looking for any opportunities to bring the office together,” Peterson said.

Under the old regime, career advancement and job security were subject to a mysterious and arbitrary system that required young, ambitious prosecutors to have a talent for ring-kissing and a willingness to stab fellow prosecutors in the back. This was largely fostered by the office’s mandate that each new attorney undergo a three-year probationary period. Contra Costa County is the only county in the state that has such a policy, and it has been criticized for turning competitive, ambitious attorneys into simpering sycophants and treacherous co-workers. “The idea is that the new hires are going to stay and be nurtured into seasoned attorneys, which benefits them, the office, and the taxpayer,” former CoCo County Deputy District Attorney Michael Menesini told the Express in a 2009 interview. “In Contra Costa County, it’s not nurture, it’s torture. Contract attorneys will do almost anything to be hired and many are often hired not because they are qualified, but because they are good at palace politics.”

The contract system is still in place, though Peterson said he would like to modify it. The system saves the county money because contract attorneys are paid less than their full-time co-workers and they do not receive pension benefits. “Now that the dust is settling, I’d like to look at maybe lowering it to two years,” he said of the period that attorneys are on contract.

But Peterson also has had a few missteps. Shortly after his election, he promoted an O’Malley supporter, thinking it would put the office at ease, but the move backfired, causing more confusion and distrust. “What I learned is that the [deputy] DAs wanted more transparency in the promotion process; they wanted to know what was expected of them in order to move their careers along,” he said.

As a result, Peterson has revamped the promotion polices for contract and permanent prosecutors so they are fairer and above board. And he restructured the evaluation process. Deputy DAs now get clear feedback on their performance based on management’s clearly stated expectations. Prosecutors are also given a series of standards, in writing, that describe exactly what work levels are necessary to meet and exceed expectations. There is also internal career counseling to help prosecutors achieve their goals.

The promotion process also has been clearly spelled out and made much more transparent. Prosecutors seeking promotions submit an application and a résumé before being interviewed by a panel of five office attorneys. After the interview, the candidates are given specific reasons in writing as to why they were or were not promoted.

Since revamping the process, Peterson has promoted five prosecutors to a Level Four status, which is the highest pay grade achievable for a deputy DA. They were the first such promotions in five years, and four of the promotions went to women. The office now has more women on the management team than under any previous administration. “That is something that’s needed to be done for a long time,” Peterson said.

The management changes, however, were not enough for at least three prosecutors who filed lawsuits against him. All three prosecutors — Jill Henderson, David Brown, and Lucinda Simpson — were O’Malley supporters. Henderson, a fourteen-year veteran, claimed that Peterson demoted her because of her gender and in retaliation for supporting O’Malley during the election. She settled her case late last year for $135,000.

Brown, another veteran prosecutor, claimed in a complaint filed in federal court that Peterson demoted him several times because of his race and for his support of O’Malley. But Brown didn’t have the best work history in the office and his case has not gone well. According to the Veritas Project, a watchdog group that tracks prosecutorial misconduct, Brown has been cited five times, the highest number of citations in California, for prosecutorial misconduct, and three of those cases resulted in reversals. Unfortunately for Brown, he chose to represent himself, and US District Court Judge Phyllis Hamilton dismissed the majority of his claims, citing a lack of relevant detail. However, she said he could pursue three of his claims, provided he can file an amended complaint that cogently presents the facts in relation to his assertions. Simpson’s lawsuit, meanwhile, has gained the least amount of traction of the three. Simpson quit her job as prosecutor some time ago and then filed a lawsuit claiming retaliation after she reapplied for her job and was not rehired.

Peterson said he has not retaliated against any O’Malley supporters. In fact, he said six of his nine top managers had been in O’Malley’s corner during the election. Peterson also said that news coverage of the lawsuits has given the impression that there is still distrust and sharp divisions in the office, which he said does not reflect the improved atmosphere. “On a scale of ten, I hope the esprit de corps in the office is up to a seven or eight,” Peterson said, “but you’re always going to have 10 percent who are disgruntled no matter what.”

For decades, the DA’s Office had strained relationships with Richmond and other communities in the western part of the county that have struggled with chronically high unemployment and crime rates. But in the past two years, Peterson has been able to establish working relationships with West County law enforcement agencies and social organizations like CCISCO, an interfaith group that works on a number of issues in low-income communities such as family health, community organizing, housing, and violence prevention.

Peterson’s office has also been proactive in Richmond’s Ceasefire program, a nationally recognized initiative designed to curb gun violence through coordinated efforts between city, county, and state partners. Richmond Police Chief Chris Magnus, perhaps the most progressive police chief in the Bay Area, said Peterson has been great on domestic violence issues, gun violence, and bringing together West County law enforcement agencies. Under Magnus’ leadership, Richmond has managed to reduce homicides and felony assault rates by 28 percent while other East Bay cities have experienced a spike in violent crime. Magnus said Peterson has contributed to that success. “He realizes that what happens in Richmond effects the rest of the county, which is much more than his predecessors ever did,” Magnus said. “I do think he can be a little more open to community input and a little more open to alternative public safety options. But overall he’s been helpful and we really appreciate it.”

Peterson also has won praise for his work in helping implement Governor Jerry Brown’s realignment program, which is designed to reshape the justice system by developing new opportunities and policies to help prevent incarceration and reduce recidivism. The Contra Costa County Board of Supervisors just approved a $20 million budget to support the effort. “Contra Costa County is becoming a model for the rest of the state for creating options to traditional law enforcement strategies and keeping the community safe,” said CCISCO Director Adam Kruggel. “In the past year, there has been a surge of community organizing, and to his credit the DA has been a part of that.”

But while Peterson has been able to improve his office’s relationships in West County, it remains to be seen if he can improve the performance of his prosecutors in the courtroom. Contra Costa County prosecutors are legendary for their high self-regard, dismissiveness, and general hostility. Criminal defense attorney Christopher Martin, who has recently filed a lawsuit against the CoCo County Public Defender for not representing indigent defendants at arraignments, said he has never experienced such prosecutorial “smugness” in the 24 years he’s been an attorney. “I’ve worked in Contra Costa County for the past three years, and I am just astonished at what I see,” Martin said. “For example, the [deputy] DAs regularly conceal evidence from defense attorneys as a matter of course, and the judges endorse it. I have a case in which evidence in still trickling in after two years. The [deputy] DAs act as though their power is unfettered.”

Over the years, Solano County defense attorney Daniel Russo has had several pitched battles against Contra Costa prosecutors and judges. He said some DA supervisors are trying to do the right thing under Peterson, but there’s still room for improvement. “I haven’t seen radical change,” Russo said.

Veteran public defender Mike Kelley said he would like to see change in some court practices, such as bail scheduling, that give advantages to wealthy individuals. “In Contra Costa County, the courts work against defendants and particularly defendants without means,” he said. “This is no place to be poor and in the court system.”

Peterson said he is aware of his prosecutors’ reputation and is trying to change it. He wrote a governing philosophy statement for his administration that includes the goal of treating “coworkers, opposing council, judges, and the public with respect.” One senior deputy DA said management is working to make sure that the defense bar is treated more professionally. “In some cases, [deputy] DAs would be bad actors in court,” he said. “And some were beyond aggressive and hostile. Disrespectful, which is the best way to describe the behavior, is the overall impression Contra Costa County [deputy] DAs have made on the court.”

Peterson said he plans to run for reelection in 2014. By that time he hopes the changes he’s made to the office will be reflected a bit more by the local media.

He said the key to achieving his goals over the next two years is improving communication so he is now focusing on reaching out to the counties various communities. “When I first came into office, I was busy with the budget, but now there’s more time to schedule meetings with the city councils and school districts. The goal is to increase crime prevention,” Peterson said. “So I am doing a lot of listening so I can find out what is expected of me and what we all can do to prevent crime.”


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