NO RULING ON DROPPING EX-MAYOR’S INDICTMENT
By Barry WittMercury News
A judge on Friday appeared highly skeptical of the bribery and other criminal charges filed last year against former San Jose Mayor Ron Gonzales, his former budget aide and a city garbage hauler. But he did not immediately rule on whether he would throw out any part of the case.
At a hearing on motions to dismiss the seven-count indictment brought by a Santa Clara County grand jury, Superior Court Judge John Herlihy reserved nearly all his sharp questions and comments for Deputy District Attorney Julius Finkelstein, whose legal theories have been under constant assault by defense lawyers since the charges were filed 11 months ago.
Potentially most troubling for the prosecution was the judge’s apparent rejection of three cases Finkelstein used as precedents to justify the charge that Gonzales accepted a bribe.
The bribery charge was based on Gonzales’ alleged October 2000 request that the garbage company, Norcal Waste Systems, persuade its recycling subcontractor to recognize the Teamsters union as the representatives of its future workforce rather than the Longshoremen’s union. Gonzales allegedly promised to support a future $2 million annual addition to Norcal’s city contract to cover the cost of using Teamsters, whose wages under prior contracts were higher than Longshoremen’s.
Although Gonzales received no money from the transaction, Finkelstein argues that because bribery covers situations in which third parties receive a benefit – in this case, the Teamster workers – and that Gonzales also received political support from the union in exchange for his actions, he could be found guilty of taking a bribe from Norcal.
Herlihy indicated he saw nothing in three of the prior bribery cases Finkelstein cited to support the charge against Gonzales.
One of those precedents was a U.S. Supreme Court ruling from 1959 in which the court said bribery charges could be brought against a man who offered to donate money to the Republican Party if a congressman would use his influence to make him a postmaster. But Herlihy said the decision in that case “doesn’t really support your position in the Gonzales case.”
During a break in the hearing, the judge researched part of the evidence in the Gonzales case to knock down an argument Finkelstein had made earlier regarding whether the former mayor’s actions actually influenced which union wound up representing the workers. Defense attorneys have argued that because the Teamsters already represented employees of the contractor that preceded Norcal – and because those employees had to be retained by terms of the new city contract – federal law required that the union remain in place.
Other counts in the indictment include a broad conspiracy to defraud the city, falsification of public records and misappropriation of public funds. Herlihy raised questions on the latter two matters, even wondering whether Finkelstein had charged the public records counts under the appropriate statute.
The judge didn’t say when he would rule on the motions. But he did offer the defense an additional bit of hope after Alan Lagod, the attorney for Gonzales aide Joe Guerra, argued that the prosecution has frequently changed its theories of why the defendants’ actions constituted crimes.
“I noticed the changes that you just alluded to,” Herlihy commented.