An internal memo criticizing DNA analysis procedures at the San Francisco Police Department crime lab has become an issue in prosecutors' efforts to obtain a conviction based on DNA evidence in the rape and murder of a San Francisco woman in 1976.
San Francisco Superior Court Judge Charles Haines ruled today that the memo itself would be kept under seal at the request of the district attorney's office. However, he said that he would allow the memo's author, veteran prosecutor and DNA expert Rockne Harmon, to testify in court about the document's significance.
Deputy Public Defender Mark Jacobs is seeking the memo to aid the defense of James Mayfield, 65, who has been charged with killing a 29-year-old sculptor, Jenny Read, in her Potrero Hill home 35 years ago. Read was allegedly tied up, raped, and stabbed 13 times. A "cold hit" on DNA evidence found at the scene led to Mayfield's arrest in 2009. At the time of his arrest, Mayfield was living and working at a Bayview church.
The SFPD crime lab employee who analyzed Mayfield's DNA, Cherisse Boland, was criticized by Harmon for shoddy forensic practices in a portion of the memo obtained and published by SF Weekly. Specifically, Harmon took issue with her decision not to search for crime-scene DNA evidence in a 2010 murder case -- in which both defendants were acquitted -- and her writing a "misleading" forensic report on the case.
The heated debate over the memo today in court would have been difficult to imagine in December, when SF Weekly first reported on the document's existence, based on interviews with Harmon, who created it in 2010 while working as a consultant to the San Francisco DA's office.
He believed it should be disclosed to defense attorneys in cases involving Boland's work, in accordance with prosecutors' constitutional obligation to provide defendants with information that can help their cases. The report could be used to impeach Boland's credibility as a witness in DNA cases.
However, the DA's office repeatedly denied that any memo existed when asked about it by SF Weekly and other publications. It was not until the memo became an issue this month in the DA's race, with opponents attacking interim DA George Gascón over his office's handling of the document, that authorities first openly acknowledged that Harmon had created an internal report on the crime lab.
In a cover story last month, we reported that the report had been shared with top officials in the DA's office and SFPD. Former Chief Assistant District Attorney Russ Giuntini actually urged SFPD officials to share the memo with visiting state auditors who were evaluating the crime lab's compliance with federal DNA-testing standards. For reasons that remain unclear, that was not done.
In a motion filed Friday, the Public Defender's office requested access to the memo, arguing it could be used to impeach Boland's testimony in the Mayfield case.
Today, however, Haines said he did not believe the entire memo was relevant to the case.
"Having looked at the memo that's sealed, I don't see anything in there that would ... deny someone a fair trial," he said. He also ruled that the document was covered under an exemption from disclosure for attorneys' "work product," or thoughts and opinions that don't amount to factual evidence in a case.
Jacobs was at times openly exasperated over his inability to access the report. "I don't know what's in it," he said. "The only reason I'm interested in it is they're hiding it. They're waving it in front of me like a dog." He also compared the secrecy surrounding the memo to a "veil on a belly-dancer."
Haines hinted at the hearing that he did not believe the memo's actual contents would be so enticing. "When you get back and see what's behind the veil, it's so disappointing," he said.
That echoed similar assertions in the past by Harmon, who has said the memo -- while he believes it relevant to legal issues in criminal cases -- is less troubling in itself than the persistent efforts by the SFPD and DA's office to withhold it from defense lawyers and visiting lab inspectors.
Braden Woods, chief of the criminal division of the DA's office, said that Jacobs was "filibustering" to stall court proceedings and "pontificating" what on the memo's possible contents. According to Harmon, Woods was co-author of the memo, and has believed from the start that it should not be disclosed to defense lawyers or auditors.
While Haines' refusal to unseal the memo was a blow to the defense, he left the door open for a subpoena of Harmon, who could describe his findings -- and, just as significantly, the efforts to suppress them by the DA's office -- either in open court or in closed testimony before the judge.
The ruling "would not necessarily preclude you from bringing him in.... I wouldn't cut you off from doing that," Haines told Jacobs. "Mr. Harmon had something he wanted to say.... Let's ask him to come in."
Harmon has said that he will readily comply with a subpoena, and share e-mails and other documents indicating the origins of his memo and who saw it in the DA's office and SFPD, so long as he does so through appropriate legal channels.
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