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Crime Lab Confidential: DA and SFPD Withheld Damaging Memo About DNA Lab Failings 

Wednesday, Aug 24 2011
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Page 4 of 5

In a letter released with the documents, Paul Henderson, former chief of administration at the DA's office, wrote, "Mr. Harmon's statements were not made on behalf of the District Attorney's Office, and were sent directly to an outside party." This explanation was amplified by Woo in a letter she subsequently sent, along with the same documents, to defense lawyers who had inquired about it.

"There is an e-mail correspondence between Edward Blake, Cherisse Boland and Rockne Harman [sic] that we believe to be the 'document/report/memo/internal investigation' reflected in news articles regarding the subject of Boland's testimony," Woo wrote. "We do not believe that this material constitutes either Brady material or discoverable material... Nevertheless, we are providing this correspondence to you in the spirit of transparency." (Under the U.S. Supreme Court's ruling in the 1963 case Brady v. Maryland, prosecutors have a legal duty to turn over evidence that could help defendants' cases.)

Of course, there was nothing "transparent" about Woo's disclosure. Harmon, when he learned of it, says he tried to contact her so she could correct her public misrepresentation of his work. He never heard back from her, though the two apparently traded unanswered phone calls and short e-mails. In a February 2011 e-mail to Woo, provided by the DA's office in response to a public records request, Harmon implored her to take the time to understand his memo's significance. "You never had a substantive discussion with me about what I wrote. You said you were too busy," he wrote. "I was always available to do so."

Today, Harmon says, "She has never — no one has ever — taken me up on my offer to explain anything."

Harmon says he is all the more puzzled by Woo's inaccurate statements because another top staffer in the DA's office, Braden Woods, chief of the criminal division, is fully aware of the circumstances under which the memo was produced and should have communicated them to his colleagues. Woods, who worked with Harmon on improving prosecutions of cold-hit cases, helped write part of the formal memo, according to Harmon. He also argued against disclosing the report to visiting auditors because of the negative information about crime-lab practices it contained, Harmon asserts.

"Braden Woods knows all of this, absolutely, because he was worried about the impact of this," Harmon says. "Braden Woods didn't want this to happen. He told me that he didn't want this to be presented to inspectors." He adds, "It really begs the question, because you have a guy who's one of the top guys, Braden, who knows all this, and the DA's office has a responsibility to be candid."

Woods declined to comment. "I'm going to refer everything" to Cristine Soto DeBerry, Gascón's chief of staff and head spokesperson, he said. DeBerry did not respond to repeated requests for comment and to interview Woods.

Worries about the report's impact are best understood in the context of events at the crime lab in the spring of 2010. Having survived a bout of negative publicity brought on by Madden, the lab employee caught stealing drug evidence, Gascón, at the time SFPD chief, announced the closure of the lab's hopelessly tainted narcotics-testing unit. At a May 2010 press conference on the shuttering of the drug lab, Gascón emphasized that police would now be able to concentrate on DNA testing, which he described as "frankly of greater importance to our crime-fighting efforts."

The public release of a memo impugning the DNA lab, or the lab's failure to pass outside audits based on such a memo, would have been a major blow to the police department's already staggering forensics operation. Nevertheless, in an e-mail sent to top police officials, the day before state DOJ auditors arrived, Giuntini urged that the memo be provided to inspectors. The recipients of his e-mail were Godown and Lazar, who at the time were overseeing efforts to get the crime lab back on track.

"I know that DOJ is starting the DNA audit soon," Giuntini wrote on April 12, 2010. "May I suggest you show them Rock's memo and I am happy to make both Rock and Braden available to the auditors since they are the users of that service and understand the technology as experts in the field."

Giuntini, who retired last summer, declined to comment for this story. His e-mail was dictated over the phone to SF Weekly by Harmon, who has a copy. Harmon says he will release the e-mail only to lawyers or investigators who seek it through appropriate legal channels, so he can be sure that he does not violate the past terms of his employment at the DA's office. Harmon says he and Giuntini also discussed his memo and its relevance for the audit in a face-to-face meeting with Godown at the police department before inspectors arrived.

The e-mail is a vital part of the paper trail surrounding Harmon's memo, indicating as it does that the top staff attorney of the DA's office was aware of the report, believed it important enough to be shared with inspectors from the state DOJ, and communicated those concerns to at least two members of the SFPD brass. Without Harmon's intervention, however, it would never have come to light. In response to public records requests, both the DA's office and SFPD denied the existence of any correspondence from Giuntini to Godown or Lazar during March or April 2010.

Godown and Lazar declined to be interviewed through SFPD spokesman Esparza, who said simply, "We're not going to be able to facilitate that request, and that's all there is to it."

Reporters don't have the legal authority to make public officials speak against their will. Defense lawyers do. Charged with the responsibility of ensuring due process for their clients, they can subpoena witnesses and documents that could undermine the prosecution's case. And San Francisco attorneys have begun to take an interest in what Harmon has to say.


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Peter Jamison

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