San Jose: Frustration builds over COVID-19 leniency after release of drug-trafficking suspects

Chivis Martinez  Borderland Beat  TY Follower of BB Mercury News

 After the release of two men charged with dozens of drug trafficking and gun offenses as well as alleged links to Mexican drug cartels, police and prosecutors were up in arms and calling the decision a troubling consequence of statewide court leniency aimed at decreasing jail populations to prevent in-custody outbreaks of COVID-19.

“I know we have to decrease the jail population, but surely there’s room in the county jail for a drug-dealing armed felon,” San Jose police Chief Eddie Garcia said. “I have no issue with people with minor crimes (being released). I have issue with this.”

The chief was referring to the arrests Thursday of Gamaliel Duran Avelar, 37, and George Washington McMahan, 61, in San Jose after search warrants were served at two homes off South Bascom Avenue as part of an investigation into suspected drug-dealing activity. During the home searches, police seized seven handguns, an AR-15 rifle, 15 kilograms of cocaine, a pound of meth, and crack cocaine.

The two were charged with crimes covering being a felon in possession of a firearm, possession of cocaine, meth and crack for sale, and drug manufacturing. They were arraigned Monday, and were released the same day on their own recognizance, without any monitoring. They did not have listed attorneys in court records.

The Santa Clara County District Attorney’s Office objected to the release decision by Judge Arthur Bocanegra, and when reached for comment, referred to a high-bail motion filed by prosecutor Olivia Mendoza. In the motion, Mendoza wrote that Duran — the name used for Avelar in court — had already been convicted for drug sales after a 2013 arrest in Gilroy, and was also convicted of intimidating a witness.

“Duran is a recidivist drug dealer … who has increased in criminal sophistication since his 2013 conviction for drug sales,” Mendoza wrote. “Prior investigations by (Los Angeles) DEA into Duran and his network have revealed that he has associated with individuals linked to Mexican drug cartels to engage in drug sales. This exponential leap in criminal sophistication and cooperation with dangerous drug cartels shows that not only does Duran have a disregard for the law but he poses a serious safety risk to this community.”

Mendoza further argued that Duran “has the means to flee the jurisdiction and the country to escape prosecution.”

“No one would say this crime is not serious,” Garcia said. “There’s a disconnect between the bench and what the communities are asking for.”

The decision to release the defendants on their own recognizance comes as county courts and their overseer, the state Judicial Council led by California Chief Justice Tani Cantil-Sakauye, have instituted a series of drastic emergency measures to dampen the spread of COVID-19 in county jails and courts. Those measures have ranged from temporarily lengthening arraignment and speedy trial deadlines, and expanding the use of remote hearings for court proceedings, to temporarily waiving bail for people arrested and charged with misdemeanors and nonviolent felonies.

County courts have also been independently driving down their jail populations through acts like releasing pretrial detainees charged with low-level offenses and granting early release to people in the final weeks of their jail sentences. As a result of these aggregate measures, state law-enforcement agencies have largely deprioritized jailing people arrested on suspicion of many lower-level and nonviolent crimes.

When contacted for comment, a spokesperson for the Judicial Council referred to comments made by the chief justice during a special meeting Monday conducted by conference call to approve additional statewide court changes.

“We are at this point truly with no guidance in history, law or precedent. To say that there is no playbook is a gross understatement of the situation,” Cantil-Sakauye said Monday. “We are trying to balance access to justice with a safe court environment for others including first responders, police, fire, rescue and ambulance crews … those working in and with our local communities to stop this pandemic and save lives.”

Similarly, when asked about the San Jose case, the Santa Clara County Superior Court released a statement to this news organization attributed to Presiding Judge Deborah Ryan: “The court continues to work with its county justice partners, as we have since the beginning of the COVID-19 pandemic, and will implement the Judicial Council’s emergency rules consistent with public safety and public health.”

Ronald Lawrence, president of the California Police Chiefs Association and chief of the Citrus Heights Police Department, said cases like the San Jose arrests embody a small but dangerous group outside the population of low-level offenders targeted by the courts’ measures. He said courts should use their discretion and withhold leniency when paper charges belie the likely risk posed by a suspect.

“We have to be careful of those cases. We’ve got some really bad actors out there,” Lawrence said. “We have to find the balance of keeping bad actors out of the community, and what the courts need to do to keep people healthy.”

David Ball, an associate law professor at Santa Clara University who specializes in criminal procedure, said the court decisions should not tarnish the purpose of the emergency measures.

“Judicial discretion is there because we trust them to do what is right,” Ball said. “We won’t agree with it all the time.

“With policy, it’s important that we look at average cases and build around those rather than the extreme cases,” he added. “When we arrest somebody, now the tradeoff is much higher. They might get sick and die.”

Garcia said his department will keep treating serious crimes as they always have, regardless of what might happen in court.

“We promised our community we’re not going to let anyone take advantage of the city,” Garcia said. “We’re not going to stop arresting these criminals.”