District Attorney George Gascón fought back against attacks on his suppression of an internal memo criticizing the San Francisco Police Department Crime Lab's DNA unit at a public forum for DA candidates last night, asserting that his office was prepared to disclose the memo through appropriate legal channels.
However, Gascón failed to answer some of the basic questions about why the memo has been concealed and misrepresented for more than a year by his staff attorneys, and also appeared to erroneously state that a copy of the memo had been shared with a defense lawyer who had requested it.
The memo was written by a whistle-blower, formerly employed at the DA's office, who criticized practices for analyzing DNA evidence at the SFPD Crime Lab. The former employee, Rockne Harmon, is a veteran prosecutor and nationally recognized DNA expert who says he is disturbed that his report has not been shared with members of the defense bar or outside auditors who performed accreditation inspections of the crime lab.
SF Weekly revealed the memo's existence in a December cover story and reported more fully on the circumstances behind its writing and law-enforcement officials' failure to disclose it in a cover story last month. The DA's office has by turns denied any memo existed or falsely stated that it was a private e-mail rather than a formal report, assertions that have been contradicted by Harmon's statements and public records.
Last night, however, facing repeated criticisms from all three of his opponents in the DA's race -- who put out a statement yesterday calling for the memo to be released -- Gascón said prosecutors have handled the memo through proper legal procedures.
"Contrary to what my opponents are trying to tell you, we don't litigate cases in the Weekly. We litigate cases in court," Gascón said at the debate organized by the Potrero Hill Democratic Club. He said the memo had already been shared with a judge and "parties representing the defense" in a criminal case, and the judge had determined it was not relevant.
"I think it's really important for you to know that this particular memo has been disclosed, not only to the court, but to the parties and the defense in this case, already. And the court decided that it was not Brady [material]," he said. (Under the 1963 U.S. Supreme Court ruling in Brady v. Maryland, prosecutors must disclose information that can help defendants' cases.)
However, the defense lawyer in the case Gascón referenced said today that Harmon's memo has never been provided to him, despite his repeated requests for it.
"The memo was not disclosed," said David Wise, who has sought it as evidence on behalf his client in a rape case. Rather, materials written by Rockne Harmon were provided by the DA's office to San Francisco Superior Court Judge Anne-Christine Massullo, who ruled they were not relevant to pretrial motions in the case.
A significant part of her reasoning, Wise said, was that the memo focused on the work of one DNA analyst, Cherisse Boland, who did not work on his client's DNA sample, although she has worked on many other cases. Harmon himself has said he would have disclosed the document to defense lawyers if he were handling a prosecution involving DNA evidence in San Francisco, and that his memo is "germane to future legal issues."
Wise says the only thing prosecutors have given him was an appendix to Harmon's memo, first obtained by SF Weekly through a public-records request, that was accompanied by a letter from DA's Chief of Operations Sharon Woo that claimed, inaccurately, that it was Harmon's entire memo.
Gascón declined to speak to a reporter following last night's forum, and quickly departed after the end of the formal program.
DA spokesperson Erica Derryck said today that Gascón was referring in his statements at the debate only to the portion of the memo that has been shared with defense lawyers and the press, rather than the entire document, which she said is "privileged work product."
Gascón's statements last night came at a debate dominated by discussion of the memo, which his opponents -- Sharmin Bock, Bill Fazio, and David Onek -- have focused on to attack his commitment to transparency and raise the specter of serious prosecutions failing because of Brady violations.
"If there is information out there that calls into question the integrity of the lab... I would get to the bottom of it, I would investigate it, and I would disclose it," said Bock, a veteran Alameda County prosecutor who specializes in cases involving DNA evidence. "As DA's, we have an obligation to disclose anything that reflects upon the credibility of the witnesses that are testifying."
The candidates will participate in another public forum tonight at 6 p.m. at the Bar Association of San Francisco.
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