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Former editor chooses jail over probation

by Dave Boyce

Atherton resident Brian Pardee Bothun, a former reporter for the Daily Post and former editor of the Palo Alto Daily News, has decided to serve jail time rather than undergo probation for three years in connection with his no-contest plea in January to charges of possession of obscene material, prosecutors said.

Mr. Bothun, 48, told San Mateo County Superior Court Judge Susan Etizadi that he "did not want to be placed on probation," Chief Deputy District Attorney Steve Wagstaffe said in a report. The judge then denied probation and sentenced Mr. Bothun to 204 days in jail, with one day credit for time served. He is now in jail, Mr. Wagstaffe said.

Asked to explain Mr. Bothun's reasoning, Daniel Barton, his attorney, said that probation would greatly reduce Mr. Bothun's rights to privacy for three years, and that he "doesn't trust" the Atherton Police Department to treat him well because, as a reporter, he once wrote a story that cast a former Atherton police chief in a negative light.

Police arrested Mr. Bothun in April 2009 in Santa Clara on charges of possession and use of dangerous drugs, and in March 2008 in Atherton after a domestic violence call during which police said they found images of child pornography on his computer, images Mr. Bothun's attorney said were put there by someone else.

Probation, Mr. Barton said, typically includes the surrender of all computer passwords, scrutiny of all computer activity, and the right of police to search him, his home and his vehicle without the need of a warrant or probable cause.

"Brian doesn't have a lot of friends in the Atherton Police Department," Mr. Barton said. "He thinks that it is kind of (an) operation set up for people to misuse their authority."

Asked to comment, Assistant District Attorney Karen Guidotti said that defense attorneys can register complaints of police harassment with Superior Court. If it's constant or unreasonable, an attorney should have no trouble establishing that harassment is occurring, and the evidence obtained from such a search would be thrown out, she said.

After seeing the county's probation report, Mr. Bothun exercised his right to go to jail rather than accept a plea bargain that also included 180 days in jail, probation, fines and drug testing, Mr. Barton said, adding that the report contained "Frankenstein monster conditions."

While Mr. Bothun was sentenced to the maximum 204 days in jail, he will actually serve 101 days, which includes his one-day credit for time already served, Ms. Guidotti said.

All convicted offenders serve 50 percent of their sentences unless the offender has to register as a sex offender or the crime qualifies as a strike under the three-strikes law or the offender already has a strike on the record, Ms. Guidotti said.