Santa Clara DA cannot prosecute accused for bribing firearms license
SAN JOSE – An appeals court on Friday disqualified Santa Clara County District Attorney Jeff Rosen and his office from prosecuting a key defendant in a bribery indictment alleging a gambling payment system exchanging money. political money for coveted concealed gun licenses from the sheriff’s office.
The Sixth District Court of Appeal sided with Christopher Schumb in ruling that Schumb’s past friendship and his support of fundraising for Rosen posed an insurmountable conflict of interest. A three-judge panel based their decision in part on their determination that Rosen and his chief assistant, Jay Boyarsky, made no effort to walk away from the corruption investigation once it was clear Schumb was going be a target.
A written decision drafted by Judge Adrienne Grover revealed that the friendship dispute – backed up by a mine of more than 200 emails between Schumb, Rosen and Boyarsky – and that Schumb’s lawyers are appealing to top prosecutors as character witnesses compromised the office’s fairness to Schumb. .
“The foregoing facts strongly encourage Rosen’s office to actively pursue Schumb for two purposes, both to keep Rosen away from any taint associated with the re-election money raised by Schumb and to avoid the appearance of favoritism towards a friend and campaign contributor, ”Grover wrote. “Given these facts, it is unlikely that Schumb will receive fair and impartial treatment if prosecuted by the Santa Clara County District Attorney’s Office.”
In a statement Friday, Rosen said the appeal decision is “a procedural change unrelated to the substance of the crimes charged.” We are moving forward with the indictments of this public corruption case in which three have already pleaded guilty and six others face corruption charges. “
The judges’ ruling means Schumb’s case will be prosecuted by the state attorney general’s office and will be separated from that of co-defendants James Jensen, a sheriff’s captain, attorney Harpaul Nahal and local gunsmith Michael Nichols.
All four were indicted last fall on allegations that they negotiated the issuance of concealed weapons permits in exchange for $ 90,000 in donations from an executive director of security to a co-managed independent spending committee. by Schumb supporting Sheriff Laurie Smith’s re-election in 2018.
Kathleen Sherman, who argued on behalf of Schumb in the appeals process which began last fall, said the judges had “done it right” and at this point in the case, it is not There was no way to stem the influence of Rosen and Boyarsky – even indirect – on the prosecution.
“There was no compartmentalization here. We had raised the point that if the conflicting prosecutor is the head of the office, you cannot effectively isolate them, ”Sherman said Friday. “Now we’re so far down this road that you can’t raise the bell. Prosecutors know what (their) thinking is. “
The initial trial court petition filed by Schumb Magistrate’s Court attorney Joe Wall included a stash of emails from the past decade describing an often copious relationship and repeatedly referencing the gathering. Schumb’s fund for Rosen’s re-election efforts.
“Thanks again to Jill for opening your house and having a great event for my re-election,” Rosen wrote to Schumb in an email dated June 29, 2013 with the subject line “We’re just getting started.” “I appreciate it very much. You are a kind and generous person.
Rosen wrote to Schumb in an email on May 22, 2016: “Thank you very much for all your advice, support and encouragement. I am very happy that you are in my corner.
The judges’ decision was also a reprimand from Superior Court Judge Eric Geffon, who dismissed Wall’s motion for disqualification. Geffon found that there was not enough evidence to declare a conflict, which the judges ruled to be a mistake.
Geffon is also currently evaluating a dismissal motion in a related indictment, filed by attorneys for Apple’s chief security officer Thomas Moyer, challenging an indictment that sheriff’s captain James Jensen – also a co – accused of Schumb – and Deputy Sheriff Rick Sung used concealed weapons to extract a donation of 200 iPad which was then scuttled.
Judges also dismissed a side petition for Jensen on Friday that also asked them to disqualify Rosen from his prosecution, on the grounds that the prosecutor’s office had leaked information about the secret grand jury proceedings related to the indictment of Schumb and Jensen in August at the San Jose Inside news agency. . Prosecutors credited the outlet with spurring the investigation, investigating an initial donation of $ 45,000 to the committee co-chaired by Schumb.
To date, Sung and Jensen have been charged with multiple corruption charges. Two executive security officials linked to the Schumb indictment entered into plea deals with prosecutors in exchange for their cooperation with investigators. Smith, who is the sole gun license signatory, was not charged and relied on her Fifth Amendment right against self-incrimination by refusing to testify before a grand jury last summer.