City Attorney Contradicts DA George Gascón's Statements on DNA Lab Memo
The memo, which was authored by nationally recognized DNA expert and veteran prosecutor Rockne Harmon, has become a hot-button issue in the DA's race, with Gascón's opponents attacking him for his office's suppression of the report and calling for its release.
At a debate organized by the Bar Association of San Francisco last Wednesday, Gascón said a judge had decided that the memo did not have to be released to defense attorneys under the evidential rules of the U.S. Supreme Court case Brady v. Maryland, which requires prosecutors to release information that can help defendants' cases.
He also asserted that the city attorney's office had reviewed the document and decided that it was exempt from disclosure as "work product," or raw opinions and discussions that prosecutors are not obligated to share with defendants or the public.
"This particular memo was actually presented to a, judge, in court, and the court, the judge, determined that this memo was not Brady material," Gascón said. "Further, we went one additional step, and had a discussion with the city attorney. The city attorney has also reviewed this and has opined that this is work product. And given that we have a court that's stated very clearly that it's not Brady material, and we have advice from the city attorney that indicates this is work product, we are protecting that accordingly."
However, a spokesman for City Attorney Dennis Herrera said yesterday that the city attorney's office has never reviewed Harmon's memo. Instead, deputy city attorneys decided that the work-product privilege applied to e-mails about the memo exchanged between Harmon and Sharon Woo, the DA's chief of operations. SF Weekly made a public-records request for those e-mails, which was subsequently denied by the DA's office.
"The district attorney's office did approach us and wanted to know if the communications between Rockne Harmon and Sharon Woo -- what was the nature of that, is it public record," Herrera spokesman Jack Song said. "We provided the advice, orally, that the communication was work product."
Song said the city attorney's office, contrary to Gascón's assertion at the bar association debate, had not given an opinion on the legal rationale for withholding Harmon's memo itself. "I don't think we provided advice for that," Song said.
It was the second apparent misstatement on the subject of the memo in as many days by Gascón, who served as chief of the SFPD until his appointment as interim DA earlier this year. The night before the bar association debate, at a forum held by the Potrero Hill Democratic Club, he claimed that the memo had been deemed irrelevant in a criminal case by a judge and shared with the defense attorney on the case.
The next day, however, the defense lawyer in question said the memo was never shared with him. Moreover, the case Gascón referred to was one in which the DNA analyst who was the primary target of criticism in Harmon's report was not a witness.
DA spokeswoman Erica Derryck explained the conflicting accounts last week by saying that Gascón meant to say that an appendix to the memo, which had already been obtained and published by SF Weekly, was in the hands of the defense lawyer.
David Onek, one of the contenders for the DA's seat, said the holes in Gascón's statements are further evidence that his office's suppression of Harmon's memorandum is ill-advised.
"George Gascón can solve this problem very easily: Just release the memo," Onek said. "He's starting to sound like an unreliable witness whose story keeps changing."
Officials in the DA's office did not respond to requests for comment.
Harmon's memo has been the subject of a bizarre saga of obfuscation and misrepresentations by the DA's office and SFPD over the past nine months. In response to repeated queries from the press and defense lawyers, the DA's office has alternately claimed that the memo did not exist; asserted that it was not a memo at all by a private e-mail Harmon sent to an acquaintance; and, in the latest official statements, acknowledged the memo's existence but refused to disclose it.
The memo concerns the operations of the DNA section of the SFPD's crime lab, focusing on mistakes made in a homicide case by analyst Cherisse Boland and broader issues with the handling of "cold-hit" DNA evidence. Harmon himself has refused to disclose the memo to the press, but says he will provide it if subpoenaed in a court case.
We reported in a cover story last month that the former top prosecutor in the DA's office, Russ Giuntini, urged SFPD brass to share the report with visiting crime-lab auditors from the California Department of Justice, but they did not do so. Harmon and others have raised questions about whether the crime lab's accreditation could be at risk as a result.
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