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As SF Weekly went to press, Federal Public Defender Shawn Halbert said she was planning to use the sample switch to discredit Nelson's testimony in a federal firearms possession trial. Last week, Wise and Doug Rappaport, another private defense attorney, filed motions to dismiss two rape cases, arguing that their clients' due-process rights had been violated by the withholding of the ASCLD report by the DA's office.
In both cases, DNA evidence forms a significant part of the state's case. Even if their clients' samples were not directly affected by mistakes at the lab, Rappaport and Wise argue, they should have been provided with evidence of systemic problems at the facility that could be used to question the integrity of its work.
"What is unclear at this juncture is the extent of the problems involving DNA testing as well as the ultimate remedy for law enforcement's willful failure to turn over this information," Rappaport wrote. "The Prosecution has not provided any information pertaining to the sample switch and subsequent coverup to the Defense, nor has it taken any role in preserving the evidence which it now appears was destroyed."
Public information officers at the DA's office did not respond to repeated requests to interview prosecutors who specialize in DNA issues or who work in the office's new trial integrity unit, formed to ensure the DA's legal obligation to hand over exculpatory material to defense lawyers is met. Jerry Coleman, the veteran prosecutor who heads the unit, declined to comment without the permission of the office's public-affairs officials.
Meixner of the SFPD's Forensic Services Division said she never provided the ASCLD report to prosecutors, since "nobody asked for it." This explanation is no excuse under Massullo's ruling. The judge placed particular emphasis on what lawyers call the prosecution's "affirmative duty" to make sure defendants are supplied with information that could aid their cases: "It has long been recognized that it is the prosecutor — the People's representative in court — who has the responsibility to put in place procedures to secure and produce exculpatory evidence."
The DA's office has likewise refused to comment in writing on its apparently false statements, denying its possession of Harmon's report on Boland's handling of forensic evidence in the investigation into Brown and Wilson. Harmon says he has urged administrators at the office to release the document. "I just hope that however you write this, it leads to a revelation of the criticism I wrote," he says.
Ironically enough, following her nail-biter win over Los Angeles DA Steve Cooley, Harris made a point in her victory speech of the need to reform crime labs throughout the state. In April, she also called for "a law that makes it an automatic felony for a civilian employee of a law enforcement agency to steal or tamper with evidence." With troubling indications of distorted DNA evidence piling up in her own backyard, the state's new attorney general may soon have an opportunity to put her stated convictions to the test.