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Thursday, December 9, 2010

Exclusive: Prosecutor Says DA Is Sitting on His Report Critical of Crime Lab

Posted By on Thu, Dec 9, 2010 at 3:55 PM

click to enlarge Rockne Harmon
  • Rockne Harmon

DA's Office Denies Memo's Existence, But Prosecutor and DNA Expert Says He Wrote It in March

One of the nation's foremost DNA experts says he wrote an in-house report for the San Francisco District Attorney's office criticizing the DNA unit of the San Francisco Police Department Crime Lab earlier this year -- and is disturbed that prosecutors have not shared the document with defense lawyers or the public.

In an interview today with SF Weekly, former prosecutor Rockne Harmon -- a 33-year veteran of the Alameda County DA's office who also worked on DNA evidence in the O.J. Simpson trial -- says he wrote a memo in March of this year, while he was employed as a consultant at the San Francisco DA's office. The report criticized DNA lab supervisor Cherisse Boland for her testimony and handling of evidence in a murder trial that concluded in February, Harmon says.

Harmon's statements come amid other questions about concealment of problems at the crime lab's DNA section, such as the revelation last week that a DNA sample mix-up had been concealed for close to two years. That news was delivered in another report, this one performed by American Society of Crime Lab Directors (ASCLD) inspectors, and also was not shared with defense lawyers.

Harmon, once described by DA Kamala Harris as "the guru of DNA evidence in the state," declined to discuss his own report's contents in detail. But he said he "was and still am concerned" that the document has not been disclosed by Harris' office. He said he believes it is exculpatory evidence that should be turned over in cases involving DNA.

"It wasn't earth-shattering, but it's something that should be out there," Harmon told SF Weekly. "I think what's earth-shattering is what's happened to it, not what's in there."

Harmon said the report was provided both to officials in the District Attorney's office and to Assistant Chief Jeff Godown of the SFPD. Nevertheless, District Attorney's office Chief of Administration Paul Henderson denied the document's existence, in writing, when SF Weekly submitted a public-records request for it under the Sunshine Ordinance last week. (You can read Henderson's response here.)

Henderson later asked for two weeks, as allowed under the Sunshine Ordinance, to respond to a separate record request seeking all memos on the DNA lab produced by Harmon.

Harmon said he cannot account for Henderson's denial of the existence of his report on Boland's conduct in the murder case. He is also unsure whether it was shared by the SFPD with California Department of Justice auditors who visited the DNA lab -- as he expected it would be. The audit, completed this spring, makes no mention of Harmon's findings. After reading the audit, Harmon said, "there are many areas in there that could have been affected by my evaluation."

Henderson did not respond to calls seeking comment. SFPD Public Affairs officials likewise did not return calls by publication time.

Harmon, who worked at the DA's office from 2007 until July of this year, also says that he suggested during the uproar over drug-lab technician Debbie Madden this year that the DA's office should disclose the record. In May, Superior Court Judge Anne-Christine Massullo ordered Harris to turn over all potentially exculpatory information about the crime lab, in accordance with defendants' constitutional rights.

"I suggested this fell into the category of material that should be included. To this day, no one has sat down to discuss with me why it should be included," he said.

Harris was just elected California Attorney General.

Harmon's review of Boland was launched after defense lawyer Tony Tamburello and DNA analyst Edward Blake complained that she had presented misleading findings about DNA evidence in the prosecution of murder suspects Joc Wilson and Emon Brown. After the two were acquitted, Tamburello wrote in an April letter to San Francisco Police Department Chief George Gascon that Boland concealed from a grand jury during sworn testimony that the majority of the DNA found on critical evidence in a murder case did not come from either man. Both were later acquitted in a jury trial.

Police spokeswoman Lieutenant Lyn Tomioka said last week that Boland's conduct in the case was the subject of an ongoing internal-affairs investigation.

A September inspection report on the crime lab by ASCLD found that Boland had done nothing wrong, but noted that inspectors had not reviewed her trial testimony. Harmon said that makes their findings incomplete, since Boland's handling of the case can only be understood in light of that testimony.
Harmon said, "I just hope that however you write this, it leads to a revelation of the criticism I wrote."

UPDATE, 5:00 P.M.:
Public Defender Jeff Adachi says the DA's failure to disclose Harmon's report is "beyond outrageous. It suggests intentional culpability by somebody" to conceal the document. Adachi says the report "clearly" is exculpatory material that prosecutors are obligated to turn over to defense lawyers. "We'll put in an immediate request for it," he says. "What's disturbing is that the DA's office seems to explicitly deny the existence of a report that one of its own employees or consultants had written."

UPDATE, 5:06 P.M.: A thoughtful reader asks us a good question: Why doesn't Harmon release the report himself? Harmon told SF Weekly that under his contract, the reports and memoranda he produced are the property of the DA's office, and so the document must come directly from that office.

Follow us on Twitter at @TheSnitchSF and @SFWeekly

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