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Tuesday, September 20, 2011

Judge Orders District Attorney George Gascón to Release Secret Crime Lab Memo

Posted By on Tue, Sep 20, 2011 at 5:17 PM

Rockne Harmon
  • Rockne Harmon

A judge ordered prosecutors to release an internal memo criticizing DNA testing procedures at the San Francisco police crime lab today, an unexpected turn of events that could have serious political and legal ramifications for the SFPD and the office of District Attorney George Gascón.

Just yesterday, Superior Court Judge Charles Haines had ruled that the memo -- authored by Rockne Harmon, a renowned DNA expert and veteran prosecutor who formerly worked at the San Francisco DA's office as a consultant -- was not relevant to the murder trial of James Mayfield, a 65-year-old church deacon charged with the brutal 1976 murder of a young sculptor.

Today, however, Haines reversed his ruling, after an extensive one-on-one discussion in chambers with Harmon, who had been subpoenaed by the Public Defender's Office. In a move that shocked both defense attorneys and prosecutors, Haines emerged late in the day to state that the DA's office must disclose the memo under the U.S. Supreme Court ruling Brady v. Maryland, which requires prosecutors to share evidence with defendants that can help their cases.

"I find that, after reviewing all the materials, what Mr. Harmon has to say, in part, constitutes not only discoverable material, but Brady material," Haines said. "I'm reversing my order from yesterday."

Haines said that the memo and a record of his conversation about it with Harmon will become a matter of public record on Oct. 4, although a portion of the memo will remain private under an exemption for prosecutors' "work product," or private thoughts and opinions. The judge stayed his order for 10 days to give the DA's Office a chance to challenge it through a writ to the state appeals court.

The ruling was a serious rebuke to Gascón and his senior staff attorneys, who have fought to keep Harmon's internal report suppressed since SF Weekly first reported on its existence nine months ago. The DA's Office went so far as to initially claim the document did not exist, and has consistently made false statements about it since then.

As we reported last month, Harmon says it was shared with both top prosecutors and senior SFPD officials, who apparently withheld it from visiting state auditors evaluating the crime lab's compliance with federally mandated DNA-testing standards.

The contents of the full memo are unknown, but at least part of it is devoted to criticism of Cherisse Boland, supervisor of the DNA section of the SFPD's troubled crime lab. Boland was also the analyst who handled DNA evidence in Mayfield's case.

Mayfield is charged with the murder of Jenny Read, a 29-year-old woman who was tied up, raped, and stabbed 13 times in her Potrero Hill home in 1976.

Haines also said he was entering a second document brought to court by Harmon as evidence in the case that would become public on Oct. 4. He did not say what the second exhibit was, although it might be records of e-mail correspondence about the memo among senior prosecutors and police officials. Harmon has said that he would disclose those e-mails if subpoenaed.

Haines' ruling marks the first major indication of how Harmon's memo will affect future cases involving Boland. Another judge had previously ruled that Harmon's memo was not relevant to an unrelated rape case. However, Boland was not the analyst on that case, and Harmon was not subpoenaed to explain his findings.

The decision will also result in political blowback for Gascón, who has come under attack from his opponents in the DA's race for trying to keep the memo secret. When asked about the document at debates, he has claimed that it is not Brady material and thus exempt from disclosure.

DA candidate Sharmin Bock released a statement this afternoon assailing Gascón in the wake of the ruling.

"The judge's decision today says loudly and clearly that, under George Gascón's leadership, the San Francisco DA's office has become overly politicized," Bock said. "Problems are being covered up when they need to be fixed up.

As a result our DNA Crime Lab is in crisis and serious murder cases are being potentially damaged. These cases are much too important to undermine the hard work of our prosecutors because people at the top are afraid of what criticisms might come out."

Braden Woods, the prosecutor on the Mayfield case and chief of the criminal division of the DA's office, declined to comment. DA spokesman Seth Steward said the office had not yet decided whether to appeal. "We just received the ruling and are reviewing our options," Steward said.

Deputy Public Defender Bicka Barlow said the judge's ruling came as a surprise, and could have a significant impact on Mayfield's defense, depending on the contents of the memo and the information Harmon revealed to Haines during their closed discussion.

"It could be huge," Barlow said.

Following the ruling, Harmon -- whom Haines barred from further discussing the memo outside of court until his order takes effect on Oct. 4 -- declined to comment, other than to say his appearance upon subpoena had been convenient, since he had already planned to be in San Francisco speaking about capital punishment at St. Mary's High School.

"I'm just glad I was already wearing a suit," Harmon said with a smile.

UPDATE, 8:51 P.M.: DA candidate David Onek released the following statement in response to Haines' ruling: "Today's ruling underscores what I have been saying all along: George Gascón should immediately disclose the Harmon memo and confront the issues troubling the DNA Crime Lab. Cases involving serious and violent offenses could now be at risk because Gascón refused to follow the law as directed by Brady v. Maryland. The public's trust is what holds our criminal justice system together, and Judge Haines' ruling is further evidence that Interim DA Gascón has breached that trust."

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