Some critics question cost, strategy of Toste murder case

<p>A pre-trial settlement offer to a man later acquitted by jurors of all charges in the Matthew Toste murder case suggests Sonoma County prosecutors knew the evidence against him was weak, yet they pursued first-degree murder charges at considerable expense to taxpayers.</p><p>Paul Whiterock, 30, had been accused of aiding and abetting in the 2006 murder of Toste, a 32-year-old construction worker, in a downtown Santa Rosa parking garage. Joseph Lopez Jr., 21, who admitted pulling the trigger, was convicted of second-degree murder.</p><p>Now, with sentencing less than three weeks away, some courthouse observers are debating the cost of the case and wondering if there will be political fallout in the race for district attorney.</p><p>Before the seven-week trial opened Feb. 10, prosecutors offered a package deal to both men in which Whiterock would plead guilty to lesser charges and accept a three-year, eight-month prison term. Lopez would have to admit guilt to murder and accept a sentence of 29 years-to-life. </p><p>The offer required both men to accept. Lopez didn't agree, requiring Whiterock to mount a defense with a private attorney paid by the county.</p><p>Some said the expense could have been avoided if District Attorney Stephan Passalacqua had charged only the gunman, who was identified by police and witnesses nearly two years ago. </p><p>“The smart thing to do might have been to charge the shooter instead of going for all the fanfare,” said Santa Rosa criminal attorney Chris Andrian, who was not involved in the case. “In my opinion, it wasn't the best use of resources.” Andrian has publicly endorsed Passalacqua's election opponent, Jill Ravitch.</p><p>A spokeswoman for the district attorney said Passalacqua would not comment on the case, citing a gag order from Judge Lawrence Antolini that will remain in place until Lopez's sentencing April 29. Antolini barred all lawyers, police officers and witnesses involved in the case from making statements for fear of prejudicing the jury.</p><p>However, Kristine Burk, Whiterock's attorney, said there were “many off-ramps to the freeway” in a case that also was expensive for prosecutors, yet the district attorney's office chose not to take them. She and her client “were not in the driver's seat,” she said.</p><p>“I look forward to the day when the gag order is lifted,” Burk said.</p><p>No cost estimate has been given by prosecutors, but the attorneys for Lopez Jr. and Whiterock, defense experts and a private investigator have billed the county a combined $392,000. Some invoices for the final 30 days of the trial are still to be submitted, said Jeff Berk, a Sonoma County deputy county counsel, and could add significantly to the total.</p><p>The fees are not covered by the $2 million annual contract the county has with “conflict attorneys,” a stable of lawyers who are assigned when the Public Defender's office is unable to participate in a case because of legal conflicts.</p><p>“They did the case the way they thought it should be done,” said John Abrahams, the county public defender. “Was it the most efficient way? No. It seems like a lot of effort to go through to get the guy who actually pulled trigger.”</p><p>Long-time criminal attorney Steve Turer said prosecutors didn't want to risk looking soft on violent crime. “They didn't want to be accused of not pursuing it vigorously,” said Turer. </p><p>“That's bad judgment and I think part of it is political,” he said, referring to the D.A. election June 8.</p><p>However, other criminal lawyers said prosecutors were right to go after both men. Defense attorney Michael Fiumara said the evidence was unclear and needed to be vetted in open court before a jury. Prosecutors were hamstrung by inconsistent witness testimony and faulty police line-ups — things over which they had no control, he said.</p><p>“To fault someone for not having a crystal ball, I don't think that's fair,” said Fiumara, a Passalacqua supporter. “Not all the facts are known to either side at first. It gets unraveled in the courtroom.”</p><p>Toste, a single-father, was killed in a downtown Santa Rosa parking garage in an attack prosecutors asserted was gang-related. Toste was walking to a nightclub with a date and another woman when they were confronted by at least five men who witnesses said made lewd remarks and grabbed one of the women on the buttocks.</p><p>During a fight, Toste was shot twice in the chest by Lopez and died at the scene. Lopez and Whiterock fled and were arrested the same day. But the district attorney concluded there was not have enough evidence to hold the men. More than a year later, they were indicted for murder by a grand jury along with three other men: the shooter's father, Joseph Lopez Sr., 41; gang member Nicholas Mejia, 31, and Raul Lopez-Granados, 22.</p><p>Trial motions for all five men began in August. Lopez Sr., Mejia and Lopez-Granados were represented by conflict attorneys. Lopez Jr. and Whiterock had other appointed lawyers at the rate of $90 an hour.</p><p>In January, prosecutors made deals with Lopez Sr., Mejia and Lopez-Granados. They pleaded no contest to being accessories to the killing and being members of a criminal street gang. Sentencing is next month for Mejia and Lopez Sr.</p><p>A package deal was extended to Lopez Jr. and Whiterock at the same time. Lopez was to plead guilty to murder and Whiterock to being an accessory after the fact and an active participant in a gang.</p><p>When it was rejected, prosecutors pursued first-degree murder charges against both men despite conflicting witness statements about whether Whiterock helped Lopez get away or provided him with a gun.</p><p>Whiterock was cleared by a jury of all charges April 2 after 22 months in jail. Lopez was convicted and faces a 40-years-to-life sentence.</p><p>Andrian, who has handled many high-profile criminal cases in a career spanning 40 years, said the short prison time offered to Whiterock was a sign that prosecutors knew there were problems with their evidence. </p><p>“They were kind of acknowledging that didn't have a case,” Andrian said. “Yet they brought it to trial.”</p><p>Prosecutors say they will continue to pursue other charges against Lopez Jr. that are not related to the Toste case. He is charged in the grad jury indictment with attempted murder in connection with an earlier shooting at the Fountaingrove Inn and assault in a fight at Finley Park. He faces a second assault charge in connection with a fight at the jail following the verdict.</p>