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Wednesday, September 21, 2011

Over Prosecutor's Objections, Judge Says He Is 'Compelled by Law' to Release DNA Lab Memo

Posted By on Wed, Sep 21, 2011 at 4:35 PM


A judge rejected a prosecutor's pleas today that he reconsider his decision to release a controversial secret memo criticizing the San Francisco Police Department crime lab, stating that he is "compelled by law" to share the document with defense attorneys.

In his rulings, San Francisco Superior Court Judge Charles Haines also gave some indication as to how the memo on DNA-testing lapses at the lab could affect the murder trial where it is now slated to be entered as evidence -- and why he changed his mind about the document after ruling just a day earlier that it was not relevant to the case.

At one point, the judge even hinted that the information he had reviewed might contain evidence of dishonesty or criminal behavior by prosecution witnesses. "I want to emphasize: I am compelled by law to rule this way," he told Braden Woods, chief of the criminal division of the district attorney's office.

Deputy public defenders are seeking the memo in the case of James Mayfield, a

65-year-old Bayview church deacon charged with the rape and murder of

29-year-old sculptor Jenny Read in 1976. The case against Mayfield rests

on DNA evidence analyzed in 2009 by Cherisse

Boland, an employee in the DNA section of the SFPD crime lab.

Rockne Harmon, a former consultant to the DA's office, wrote an internal report criticizing Boland -- and possibly other aspects of DNA testing at the crime lab -- in the spring of 2010. He says the document was circulated among top officials in the DA's office and SFPD.

However, the report was not shared with lab auditors from the California Department of Justice, as Harmon intended, and has been persistently suppressed by law-enforcement officials. The DA's office claimed the document did not exist when SF Weekly first reported on it based on interviews with Harmon, and has continued to make false statements about it since then.

The memo has become an issue in the DA's race, with the opponents of interim District Attorney George Gascón calling on him to release the document.

At a hearing today, Woods requested that Haines allow him to view a transcript of a closed proceeding that took place yesterday between the judge and Harmon. Woods argued that his office needed to view the transcript to decide whether to appeal the ruling through a writ to the state appeals court.

Haines had stayed his order for 10 days to give prosecutors the chance time to make such an appeal.

After Haines denied Woods' motion, Woods asked that the judge simply reinstate his prior ruling, favorable to the prosecution, from Monday. He said the judge might have been "misled as to what the facts are."

At one point, Woods stated in exasperation, "Mr. Harmon's a lawyer. He's not an expert in DNA analysis." It was a curious statement, considering that Harmon -- a nationally renowned former Alameda County prosecutor who became known for his work on DNA evidence in the O.J. Simpson case -- was praised by former San Francisco DA Kamala Harris as a "guru of DNA evidence" when she hired him in 2007 to help improve her office's work on DNA-based cases.

As he rejected Woods' motions, Haines gave some insight into his decision to reverse his own order yesterday and admit Harmon's memo as evidence.

Upon initially viewing the report, Haines said, he had not understood its significance and believed it was exempt from disclosure as attorney "work product," or the raw thoughts and opinions of the DA's office.

However, once Harmon explained it to him, Haines said, "it's clear to me" that portions of the document fall under the U.S. Supreme Court's 1963 ruling in Brady v. Maryland, which holds that prosecutors must share exculpatory evidence in their possession with defendants.

"It's how he explained to me what the memo means," Haines said. "As a layman, I didn't understand it."

In a telling statement, the judge also said that he believes information Harmon provided to him in chambers yesterday is relevant to the Mayfield case under the so-called Engstrom/Wheeler test, based on rulings in a pair of California cases dictating that evidence of dishonesty or criminal behavior by witnesses must be disclosed. He did not specify which witness or witnesses might be implicated.

A partially redacted version of the memo (Haines said some of it is still privileged as work product) is scheduled to be shared with the Public Defender's office on Oct. 4, along with the transcript of Harmon's private testimony to Haines yesterday and additional, unknown documentation provided to the judge by Harmon.

"I think part of the memo has to be redacted as work product," Haines said, adding, "It's clear to me that what [Harmon] told me went beyond work product and into the area of Brady material and exculpatory material."

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