AG Kamala Harris Abuses State Power to Extort Plea Deal in Elder Abuse Case

The California Department of Public Health’s (CDPH) Licensing and Certification Program—hardly an aggressive watchdog of wealthy, politically connected nursing homes—issued a class “B” citation and monetary fine in October 2011 to a nursing home that negligently failed to administer oxygen to a fainting patient at a flow rate required by physician orders and the patient’s care plan. At that time, the unfortunate, 88-year-old victim suffered rapidly declining oxygen saturation levels, respiratory arrest, and unexpected death. In its citation, CDPH said, “The above violation had a direct relationship to the health, safety and security of Patient 1.” Despite CDPH’s findings, tantamount to obvious elder neglect, the California Department of Justice’s Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) chief of prosecutions, Mark Zahner, based his decision to file no criminal charges in the case, not on the expert opinion of the BMFEA special agent investigating the case, J. Timothy Fives, EMT, but instead on the different opinion of BMFEA medical consultant Kathryn L. Locatell, M.D. Dr. Locatell shockingly said, “There were no breaches of any applicable standards of care in the events leading to Mr. [patient’s name deleted] death. I see no indication of neglect whatsoever. . . . [W]hether or not oxygen was administered, or administered timely . . . was immaterial.”

AG Kamala Harris offers take-it-or-leave-it plea bargain to Sacramento elder caregiver charged with elder abuse, manslaughter

The Sacramento Bee reported last week that Attorney General Kamala D. Harris’ California Department of Justice had offered a plea deal to a Sacramento elder caregiver who has been in custody at the Sacramento County Jail since last month, facing felony elder abuse and involuntary manslaughter charges stemming from the death last year of an 88-year-old resident from the defendant’s elder care home.

In the Sacramento Bee’s March 15, 2013 “Plea Deal Offered in Elder-Care Case,” Marjie Lundstrom reported that Deputy Attorney General Steven Muni, a veteran prosecutor from DOJ’s Bureau of Medi-Cal Fraud and Elder Abuse in Sacramento, had offered defendant Silvia Cata, 52, a one-time-only plea deal that expires at Cata’s next court date on March 28, 2013. “Deputy Attorney General Steven Muni warned Griffin [Johnny L. Griffin III, Cata’s attorney,] and Cata, who is still in custody, that if a deal isn’t struck at the next court date, the offer would ‘never ever be renewed,’” according to the March 15 article.

For more on the death of 88-year-old Georgia Holzmeister and Kamala Harris’ elder abuse “crackdown” on non-wealthy, vulnerable small-fries, including Silvia Cata, see:

• November 19, 2012 “Bogus ‘Crackdown’ on Elder Abuse by California Attorney General Kamala Harris,” by Elder Abuse Exposed.com.

• The Bee’s February 12, 2013 “Sacramento Elder-Care Facility Operator Faces Manslaughter Charge,” by Marjie Lundstrom.

• The Bee’s February 13, 2013 “Sacramento Caregiver Arrested in Death of 88-Year-Old,” by Marjie Lundstrom.

• February 22, 2013 “CA AG Elder Abuse ‘Crackdown’ Hits Small Fry, Not Nursing Home Owners,” by Elder Abuse Exposed.com.

• The Bee’s March 14, 2013 “Accused Caregiver Had Trail of Trouble,” by Marjie Lundstrom.

AG Kamala Harris continues biased, selective enforcement of elder abuse laws only against non-wealthy, vulnerable small-fries

When The Bee first reported Kamala Harris’ felony elder abuse and manslaughter charges against Silvia Cata, Elder Abuse Exposed.com said in its February 22, 2013 article that Harris was continuing her predictable pattern of selectively enforcing criminal elder abuse laws only against a very small number of non-wealthy, vulnerable defendants. Elder Abuse Exposed.com said that this disparity in Harris’ elder abuse prosecutions is blatantly biased against the easy pickings or “low-hanging fruit” and spares the wealthy, politically connected, corporate-owned nursing homes.

AG Kamala Harris’ and Judge Laurel D. White’s selective incarceration of non-wealthy small-fry Silvia Cata in lieu of high $300,000 bail

Elder Abuse Exposed.com was also wondering why Silvia Cata was in custody and why Sacramento County Superior Court Judge Laurel D. White had set bail so high at $300,000. In the U.S. legal system, law enforcement officers do not have the authority to incarcerate a criminal suspect, who is presumed innocent until proven guilty, until a jury has convicted the person in a court of law or unless the person is a flight risk. Incarceration severely hampers a defendant’s ability to work effectively with his or her lawyer and prove innocence.

Elder Abuse Exposed.com also said in its February 22, 2013 article that in former California attorney general Bill Lockyer’s 2001 and 2006 exceedingly rare corporate prosecutions against Sun Healthcare Group and Pleasant Care, respectively, nobody went to jail. Elder Abuse Exposed.com explained that these large nursing home chains could employ expensive lawyers who could have kept DOJ prosecutors, like Steve Muni and DOJ’s chief elder abuse prosecutor, Mark Zahner, in their offices late at night if the prosecutors had tried to put those corporate defendants in jail.

AG Kamala Harris is wielding, abusing awesome power of the state to incarcerate, intimidate, and extort a guilty plea from Silvia Cata

Finally, Elder Abuse Exposed.com said in its February 22, 2013 article that Silvia Cata, who could be sentenced up to 12 years in state prison if convicted, probably could not afford private counsel for a protracted, costly legal battle with the Justice Department and may have to plea to some crime to get out of jail. Although Ms. Cata appears reluctant to accept Attorney General Harris’ initial plea deal, it looks as if Harris is, as Elder Abuse Exposed.com expected, wielding and abusing the awesome power of the state to incarcerate, intimidate, and extort a plea deal from Cata.

But extorting a guilty plea from an incarcerated, non-wealthy small-fry, such as Silvia Cata, to add an easy feather to the prosecutor’s cap is evidence of Kamala Harris’ ongoing prosecutorial misconduct and violations of the rule of law. Harris’ misconduct includes arbitrary prosecution, selective incarceration, favoritism toward corporate elder abuse suspects, intimidation, bullying, and abuse of state power.

If AG Kamala Harris were a tough, courageous elder abuse prosecutor, she would also prosecute wealthy, politically connected nursing homes

If Kamala Harris were even a little more like Bill Lockyer, who was a much tougher and more courageous prosecutor of nursing home elder abuse than Harris, then she would not have had to resort to a publicity stunt and sham campaign last year to crack down on elder abuse. Instead, Kamala Harris would be courageously prosecuting not just the small-fry perpetrators but also the principal malefactors. In other words, Kamala Harris would be prosecuting and convicting the wealthy, profit-obsessed owners of nursing homes and assisted living facilities who are directly responsible for routinely understaffing and falsifying patient records, which predictably lead to systemic elder abuse and death.

AG Kamala Harris’ record as an elder abuse prosecutor is appalling

Unfortunately, Attorney General Kamala Harris’ record as an elder abuse prosecutor is appalling. Her record is actually just as dismal as Governor Jerry Brown’s record was while he was attorney general from 2007 to 2011. Despite her publicity stunt and sham campaign last year to aggressively prosecute nursing home elder abuse, Kamala Harris’ true record as an elder abuse prosecutor speaks for itself. Since Kamala Harris became California attorney general in 2011, she still has not prosecuted and convicted even one corporate-owned nursing home operator or chain under Penal Code § 368 for elder abuse, or under Penal Code § 192(b) for manslaughter.

DOJ and its chief elder abuse prosecutor, Mark Zahner, have longer, equally dismal records as elder abuse prosecutors

In addition, the California DOJ and its chief elder abuse prosecutor, Mark L. Zahner, have longer and equally dismal records as elder abuse prosecutors:

• In the past seven years, while Mark Zahner has been chief of prosecutions for the DOJ’s Bureau of Medi-Cal Fraud and Elder Abuse in Sacramento, Mr. Zahner and the DOJ still have not prosecuted and convicted even one corporate-owned nursing home operator or chain under Penal Code § 368 for elder abuse.

• The California DOJ has never prosecuted and convicted even one corporate-owned nursing home operator or chain under Penal Code § 192(b) for manslaughter.

Do Kamala Harris, Mark Zahner, and the DOJ’s Bureau of Medi-Cal Fraud and Elder Abuse really think that the public is going to believe that not even one nursing home operator or chain in California has committed criminal elder abuse or involuntary manslaughter?

AG Kamala Harris, Deputy AG Mark Zahner should heed words of illustrious U.S. prosecutor and jurist Robert H. Jackson

Attorney General Kamala Harris and Deputy Attorney General Mark Zahner should heed the words of the illustrious prosecutor and jurist Robert H. Jackson, who was a U.S. attorney general (1940–1941), a U.S. Supreme Court justice (1941–1954), and the U.S. chief of counsel at the Nuremberg Trials. Attorney General Jackson said in his address “The Federal Prosecutor,” at the Second Annual Conference of United States Attorneys, in Washington, D.C., on April 1, 1940:

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. . . .

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. . . .

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

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