Ad Watch: Schubert attack ad hits – and misses

Deputy District Attorney Anne Marie Schubert is airing a television advertisement that attacks state Deputy Attorney General Maggy Krell, saying Krell is inexperienced and unethical.

Here is a presentation of the ad, followed by an analysis by Sacramento Bee reporter Andy Furillo.

TEXT: “Maggy Krell wants to be DA. The Bee says she lacks experience. Krell has only tried four cases in eight years, and when she was in court she made major mistakes. She approved an illegally soft sentence for a human trafficker, and was found by a court to have committed prosecutorial misconduct. Maggy Krell has even been called “unethical” by Sacramento prosecutors. Our local law enforcement leaders all opposed Krell. Unethical and unqualified. Maggy Krell is the wrong choice for DA.”

ANALYSIS: Krell has been a prosecutor for 11 years compared with Schubert’s 24, and it’s true that The Sacramento Bee cited Krell’s lack of experience in its endorsement of Schubert. In its response to a Public Records Act request from the Schubert campaign, the state attorney general’s office listed six trials that Krell worked on from when she started her job there in 2005 through November 27, 2013. Four of them went to a jury’s verdict. In the two other cases, Krell was the prosecutor in front of juries that were empaneled to hear witness testimony to determine whether the defendants, who were represented by lawyers, were competent to stand trial. Both of the defendants were found to be competent. One case was later resolved by a plea, while the other is pending. Chuck Schultz, Krell’s former supervisor in the misdemeanor unit in the San Joaquin County District Attorney’s Office, said she worked “10 to 12” trials in the six months she worked under him during the year she spent in San Joaquin County in 2004 and 2005. Krell estimated she worked 20 trials total during her yearlong tenure in the office.

It’s true that as a deputy attorney general, Krell had a conviction overturned because she made a reference in her closing argument to the defendant not testifying at the trial, in violation of his constitutional right against self-incrimination. Numerous appellate cases categorize this so-called “Griffin error” – named for the 1965 U.S. Supreme Court case that found the practice unconstitutional – as prosecutorial misconduct, and judges generally regard it as such. Gerald Uelmen, a prominent law professor at Santa Clara University, said, however, that for a Griffin error to be misconduct, the mistake has to be deliberate. The appellate court decision in Krell’s case overturned the conviction due to Griffin error, but did not specifically identify her mistake as prosecutorial misconduct.

It’s true that a defendant Krell successfully prosecuted whose offense mandated a state prison term had to be resentenced to the custody of California’s corrections department after he was incorrectly ordered to county jail under the state’s realignment law.

It’s true that Andrew Soloman, the head of the Sacramento District Attorneys Association and a strong Schubert supporter, called Krell “unethical” for criticizing Schubert for taking pay raises during tough economic times. The narration in the Schubert ad, however, takes place while the word “unethical” flashes on the screen beneath a script headline that reads “Sacramento Bee.” The image could lead a viewer to believe that it is the newspaper that is calling Krell unethical when the quote comes from Soloman.

The ad is wrong when it says, “Our local law enforcement leaders all opposed Krell.” Sacramento Police Chief Sam Somers Jr., Elk Grove Police Chief Robert Lehner and Folsom Police Chief Cynthia Renaud have not individually endorsed or opposed any of the candidates. Those chiefs, however, belong to the Sacramento Police and Sheriffs Group, which has endorsed Schubert. The group did not make public how the chiefs voted individually in the Schubert endorsement. Galt Police Chief William Bowen, meanwhile, contributed $250 to Krell’s campaign.