Rose is a rose is a rose is a rose

As part of Alameda Citizens Task Force’s letter to the City Council urging the City Council to not reimburse Councilmember Lena Tam for her legal expenses incurred during the whole “investigation” at the very end they threw in a zinger, pointing out that:

…it should be emphasized that while the District Attorney’s  Office failed to prosecute Ms. Tam, it did not fully exonerate her of any wrongdoing either.

In light of the recent lawsuit threats and lawsuits brought on by City Attorney Teresa (Terri) Highsmith and Interim City Manager Ann Marie Gallant.   I find the rhetoric that surrounds these two cases rather contradictory.   On one hand, those that believe that Terri Highsmith and Ann Marie Gallant have a legal case are content to let the courts “sort out” who is right and who is wrong.  (I’m going to go with the assumption that folks that are supportive of both women will paint any settlement as a “win”.)  On the other hand, those that are convinced of Lena Tam’s guilt in the whole “was she leaking confidential information” are not placated by the District Attorney dismissing the case because the evidence was lacking and the legal theory unsound.

Here’s the thing, with regard to the Lena Tam case, essentially what the District Attorney did was to say, “hey, no court or grand jury in their right mind is going to do anything with the evidence provided.”   And — something that a lot of people like to ignore in the District Attorney’s letter — was that she stated that both the evidence AND the legal theory used was “insufficient” to justify opening both a criminal complaint and/or sending the issue to the Civil Grand jury.

Now, there is a difference between a criminal and a civil case.   Criminal cases, as we all learned from watching Law & Order and other crime dramas on the TV requires a finding of guilt “beyond a reasonable doubt.”   It’s a rigorous standard, but there because when you are charging someone with a crime you better be damn sure that they did it.   (I’ll caveat this by saying that mistakes happen all the time and innocent people are often found guilty while guilty people are sometimes set free, that’s just how the legal system works out sometimes, it’s imperfect, but the only one we have.)

Civil cases, on the other hand, as we have learned from watching the People’s Court and other such mediation type tv shows dressed up like courtroom cases, requires a much less rigorous standard.  More likely it will be a finding based on the “preponderance of the evidence” (meaning that there simply needs to be a be a finding that it more likely happened than not) or “clear and convincing evidence” which is between “preponderance of the evidence” and “beyond a reasonable doubt.”   The District Attorney and her office found that the evidence offered by Michael Colantuono was insufficent for the biggie “beyond a reasonable doubt” and the lesser “clear and convincing evidence.”

While some folks want to dismiss this finding and decision by the District Attorney, she and her officials acted as the judge and jury by assessing the evidence and legal reasoning and found it lacking and unconvincing.  If the evidence and legal reasoning is uncompelling for the District Attorney’s office, the chances of it going anywhere with a judge or jury (or in this case Grand Jury) is fairly slim.  So while some people continue to cling on to the idea that there is some wrongdoing on the part of Lena Tam, a reasonable person would consider this analysis by the DA and conclude that a judge and/or jury would also reach the same conclusion that the DA did.

Of course, for some, the simple fact of being accused is enough to forever tar someone regardless of the outcome and that is unfortunate, but speaks more about the person’s perception than the accused individual’s acts.

Absolving Councilmember Lena Tam by not prosecuting or not sending the “case” to the Grand Jury was indeed an exoneration, it was not a “failure” to prosecute, it was an acknowledgement that there was no there, there.