Judge: "It's always the coverup that makes the things worse than the problem to begin with"
The San Francisco Police Department and District Attorney's Office are both implicated in allegations that a deliberate effort was made to conceal defects at the city's troubled forensics lab from state inspectors, according to court records that have been kept from the public eye under a judge's order.
The documents, obtained by SF Weekly, remain under seal at prosecutors' request in an ongoing murder case. They include a transcript of a confidential conversation between a whistle-blowing former consultant to the DA's office and Superior Court Judge Charles Haines.
The transcript reveals former prosecutor and DNA consultant Rockne Harmon's suspicions that "there was a deliberate attempt to subvert the inspection review process by the police department," and that at least one senior official in the DA's office was "right in the middle" of efforts to hide the lab's problems. Harmon also told Haines he believed the head of the crime lab's DNA testing section came close to "out-and-out lying, prevaricating" in testimony in a 2010 murder trial.
The prosecutor's revelations clearly made a serious impression on Haines, who upon hearing them exclaimed, "I have to make a note, it's always the coverup that makes the things worse than the problem to begin with."
The transcript records a lengthy closed-door interview Haines conducted on Sept. 21 with Harmon, a veteran Alameda County prosecutor and expert on cases involving DNA evidence who served as a consultant at the San Francisco DA's office from 2007 through the summer of 2010.
Read the transcript of Harmon's testimony before Haines.
Harmon's complaints about law-enforcement officials' handling of crime lab troubles -- and, in particular, their concealment of a memo outlining problems with DNA testing that Harmon authored -- have previously been reported by SF Weekly. District Attorney George Gascón also came under fire from his opponents in the recently concluded election for his office's handling of Harmon's memo.
But never before have the events of what former DA candidate Bill Fazio called "DNA-gate" been described as fully as in Harmon's in-depth discussion with Haines. Harmon's comments to the judge specifically buttress past claims by defense lawyers, including Public Defender Jeff Adachi, that the failure to share his memo with outside inspectors could jeopardize the validity of the lab's accreditation. That, in turn, could undermine serious rape and murder cases involving DNA evidence.
Harmon told the judge that he wrote a memo criticizing the work of crime lab DNA-unit supervisor Cherisse Boland in March 2010, and that he and former Chief Assistant District Attorney Russ Giuntini shared the document with former interim SFPD Chief Jeff Godown and Capt. David Lazar, among others.
Despite his urging, Harmon asserts, Godown and Lazar did not share the report with auditors from the California Department of Justice who visited San Francisco in April 2010. The audit, which the SFPD crime lab passed, is performed to ensure compliance with FBI-mandated forensics standards. A DOJ spokesman confirmed in August that Harmon's memo was never shared with inspectors.
Among the sealed documents is documentary proof that the police department was prodded by Giuntini to share Harmon's memo with DOJ auditors. In an Apr. 12, 2010 e-mail to Godown and Lazar, Giuntini urged them to disclose the memo.
Read Giuntini's e-mail to Godown and Lazar.
Both the SFPD and DA's office denied they possessed such a document in responses to public-records requests from SF Weekly this summer. The SFPD said it could not locate the e-mail in its records, while the DA's office said all of Giuntini's correspondence during his time as the office's top staff attorney had been erased after he retired in June 2010 per standard office procedure.
Harmon also told Haines that he and Giuntini urged Godown -- who at the time was an assistant chief under then-SFPD Chief George Gascón -- in a face-to-face meeting to share his critical memo with state DOJ auditors.
"I think people were manipulating the fact-finding process by manipulating information," Harmon told Haines.
Godown, who has since left the SFPD, said he does not recall any discussion or correspondence regarding Harmon's memo, but that whatever information came to him about problems at the crime lab would have been forwarded to Lazar and SFPD Capt. Greg McEachern, who were communicating with DOJ auditors about the crime lab.
"Listen, all I can tell you is I received a lot of e-mails from a lot of people," Godown said. "I'm not disputing anything Rock Harmon said or didn't say ... I'm not saying I received it, I'm not saying I didn't receive it."
SFPD spokesman Ofc. Albie Esparza requested that SF Weekly submit questions about Harmon's memo in writing. At publication time, department officials had not responded.
The memo at the heart of the controversy concerned, in part, DNA analysis Boland performed in a murder case that went to trial late in 2009. Harmon took Boland to task for failing to disclose in a forensics report and in testimony before a grand jury that she discovered, but did not try to identify the source of, a major DNA profile on bicycles believed to be used by the killers of Byron Smith, who was gunned down in Visitacion Valley in September 2007.
Emon Brown and Joc Wilson were charged in the case, but acquitted by a jury in February 2010. After the trial, Boland wrote a series of e-mails to another forensic scientist involved in the case explaining her decision not to seek a match for the DNA sample in the databases of criminals' DNA profiles to which she had access.
According to Harmon's testimony before Haines, her repeated attempts to justify herself reveal she was "disingenuous" in her report and testimony.
Referring to Boland's sworn testimony and forensic analysis, Haines asked, "Is that just incompetence?"
Harmon replied, "Well, if you read her explanation, it was deliberate ..."
Said Haines, "It's the closest thing you can get to out-and-out lying, prevaricating."
"Yes," Harmon replied.
Boland did not return calls seeking comment.
SFPD brass and forensic scientists were not the only ones implicated in Harmon's testimony to Haines. Braden Woods, chief of the criminal division of the DA's office, was also singled out by Harmon for his opposition to sharing the memo with DOJ auditors.
"I hate to bring Braden into this, but he's right in the middle of this," Harmon said, according to the transcript.
"The day that Braden told me the [DOJ] inspection was imminent, I said: 'We can't do that,'" Harmon recalled in his testimony. "And he said to me: 'Well, Rock, what happens if the lab ends up getting closed because of this?' And I said: 'Hey, if that is what is supposed to happen, that is what is supposed to happen.'"
Harmon said he also called David Pfeiffer -- who was later promoted and is now chief assistant district attorney -- to alert him to his concerns.
DA's office spokesperson Stephanie Stillman declined to comment on the transcript, citing Haines' protective order. "The transcript is under a protective order by the court, and we can't comment further," she said.
The DA's office, when first questioned about Harmon's memo in December 2010, denied the document existed. It later released an appendix to the memo, but not the report itself. In January 2011, Sharon Woo, chief of operations in the DA's office, sent a letter to defense attorneys falsely suggesting that this appendix was the memo in its entirety.
Prosecutors only acknowledged the memo's existence when defense attorneys requested it following an August cover story on its suppression by SF Weekly. The public defender's office has sought the memo as exculpatory evidence in the case of James Mayfield, a Bayview church deacon charged with the 1976 murder of Jenny Read, a young sculptor. The case against Mayfield is based largely on DNA evidence analyzed by Boland.
In September, after his closed-door session with Harmon, Haines ruled that the memo -- as well as a transcript of Harmon's testimony to him -- were exculpatory evidence that should be shared with defense lawyers. The DA's office appealed the ruling, but a panel of state appeals court judges unanimously affirmed Haines' decision. Nevertheless, the documents have remained under a court protective order preventing attorneys from sharing them with the public.
On Monday, the case was back in court, with Woods -- who is the prosecutor on the Mayfield case -- arguing that the transcript should remain under seal and not become part of the public record. Woo also made an unusual personal appearance at the hearing in an effort to persuade the judge that Harmon's testimony was one-sided and that the judge did not get "the full flavor" of the circumstances surrounding the memo.
"There's significant evidence that goes against what Mr. Harmon said," Woo said. "The more important, the more salient information is information Mr. Harmon did not provide to you."
Deputy Public Defender Mark Jacobs said at the hearing that the DA's office was merely "stalling" the memo's release to the public. "It's time to release this," he said. "We can let the chips fall where they may."
Haines agreed to keep the transcript under seal until a hearing next Monday, even as he unsealed the page of Harmon's memo that deals with Boland. The rest of the memo, the judge has ruled, is not immediately relevant to the Mayfield case and falls under an exemption from disclosure for attorneys' private thoughts and opinions.
The page largely echoed past criticisms Harmon has voiced about Boland's actions in the Wilson/Brown case, which Harmon states in the memo "show that the lab is making investigative and prosecutorial decisions without the knowledge of investigators and prosecutors."
Read the page of Harmon's memo unsealed by the judge.