OLD_San Francisco Public Defender's Office

SAN FRANCISCO – Today, on December 4, 2019, the San Francisco District Attorney dismissed all charges against Jose Ines Garcia Zarate, who was accused of murder and other charges relating to the tragic death of Kate Steinle in July 2015.  It took the criminal justice system four and a half years to reach this conclusion, even though, ever since early July 2015, it was clear based on scientific evidence that the shooting was an accident: the result of a single shot ricochet that travelled more than ninety feet.

San Francisco police investigators and crime lab technicians, after conducting an investigation shortly after the shooting, concluded that the case involved a long distance ricochet from a fully loaded weapon with no manual trigger safety.  The fully loaded gun had been unsafely stored in the backseat of a federal agent’s car near the Embarcadero.  The car was burglarized, not by Mr. Garcia Zarate, and somehow the gun ended up under a swivel chair on Pier 14.  Mr. Garcia Zarate, homeless, sat down on the chair, picked up a discarded bundle from under it, and in so doing, accidentally discharged the gun which was wrapped inside the bundle.  Only one bullet discharged from the gun.  The gun was pointed at the ground, the bullet ricocheted off the concrete floor, travelling ninety feet before hitting Ms. Steinle. All facts in this case were the hallmark of a tragic but accidental discharge of a gun — and indeed, due to the ubiquitous nature of guns in this country, more than one person is killed each day from an accidental shooting. 

Even though the prosecution, police, and defense were all aware that these undisputed facts pointed toward factual innocence, the DA nevertheless charged Mr. Garcia Zarate with intentional murder, and aggressively prosecuted him. 

Donald Trump, then campaigning for president of the United States, used the case to promote his false narrative about dangerous Mexican immigrants, rushed to judgment, and called on the public to demonize and deport the undocumented.  The national press, including CNN, the Associated Press, Washington Post, and Fox News, followed suit — simply repeating Trump’s narrative without criticizing it, and without acknowledging that the forensic evidence pointed toward innocence.  They sold stories, but they ignored the facts.

But facts do matter, and by the time an independent jury of 12 people had an opportunity to determine guilt or innocence, they unanimously chose innocence on the charges of murder as well as involuntary manslaughter. The jury did convict Mr. Garcia Zarate of possessing a gun. However, Mr. Garcia Zarate appealed that conviction because the trial judge failed to instruct the jury that momentary possession constituted a defense to the charged crime.  Three independent judges — including a former prosecutor — unanimously held that Mr. Garcia Zarate’s conviction should be reversed because he had a valid defense, namely, that he did not know the bundle he picked up contained a gun.

Yet despite these undisputed facts, President Donald Trump and former Attorney General Jeff Sessions have demanded further prosecution of Mr. Garcia Zarate. He now faces federal charges for gun possession, and is exposed to ten years in prison.

Francisco Ugarte, one of the lawyers on the criminal case, said, “The final outcome in this case exposed Donald Trump’s false and racist narrative about immigration.  We were representing an innocent man, whose place of birth and immigration status are irrelevant to the facts of this case.  We are absolutely convinced that a federal jury will see through the Trump Administration’s politicized motives in this unjust new case against Mr. Garcia Zarate, and will find him factually innocent of criminal charges.”

Mr. Garcia Zarate was represented by the San Francisco Public Defender defense team of Matt Gonzalez, Francisco Ugarte, Michael Hinckley, Zachary Dillon, Danielle Thompson, Clare Kane and the late great Jeff Adachi. 

The federal trial against Mr. Garcia Zarate is scheduled for January, 2020.    

When an SF man was kicked out of a residential treatment program for taking a cookie without asking, Drug Court gave him two choices, go back and start all over again or spend six months in county jail. He chose jail.

SAN FRANCISCO – On Monday, December 2, 2019, Gregory Fields, 42, was remanded to SF County Jail to serve six months because he would rather not start over at Harbor Lights, the residential treatment program that kicked him out for eating a cookie.

Mr. Fields was placed in the residential treatment program through Drug Court while on probation for a 2017 vandalism charge.  Harbor Lights requires a 30-day detox followed by a 30-day blackout period where Mr. Fields, who lives with his mother in San Francisco, was not able to contact her or anyone else. Mr. Fields completed both of these challenging phases and was regularly attending meetings and court. However, after a Harbor Lights outing, where they made and handed out lunches to homeless people, Mr. Fields returned and ate one of the leftover cookies without asking. That’s when Harbor Lights told him to leave.

Fields immediately called his case worker, who persuaded Harbor Lights to let him stay, but only if he started the program over from the beginning, including the grueling blackout period. Mr. Fields did not want to be shut off from the world again for no therapeutic reason and thus went home to his family.

In the interim, Mr. Fields sought outpatient treatment on his own to maintain his newfound sobriety, including showing up at Drug Court for group meetings run by the SF Department of Public Health, but was turned away. He found another outpatient program for himself and was willing to return to his placement without starting over, but those were not options.

At his next weekly appearance at Drug Court, no other treatment programs were offered. The only alternative offered was six months in SF County Jail. Mr. Fields, who has been clean for over three months, told the judge that he would rather go to jail.

Despite the risk to Mr. Fields’s long-term recovery, which ultimately impacts personal and public safety, Judge Michael Begert remanded him into the County Jail to serve six months at taxpayer expense.

“The program’s response was grossly disproportionate to the unauthorized snacking offense, and the court’s response to the low-level rule violation is counterproductive and inhumane,” said Deputy Public Defender Dana Drusinsky, who has seen Mr. Fields’s upward progress over many months. “If the court and providers were in fact focused on Mr. Fields’s recovery, they would not have locked him up for eating a cookie.”

Sacramento Immigration Coalition, Allies to File Complaint Against the Sacramento Sheriff’s Department for Illegally Handing Local Father to ICE for Deportation

SACRAMENTO, CA – On Wednesday, Dec. 4, at 12:30pm, the Sacramento Immigration Coalition (SIC) and allies will host a press conference to file a complaint against the Sacramento Sheriff’s Department in support of Enrique Nambo, a Sacramento father who was illegally transferred to Immigration and Customs Enforcement (ICE) by the Sacramento Sheriff’s Department.

Enrique Nambo is currently in immigration detention and facing deportation after Sacramento sheriff’s deputies transferred him to ICE custody on Aug. 7, 2019, in violation of the California Values Act.

WHAT: Press conference in support of Enrique Nambo and to file a complaint with the Sacramento Sheriff’s Department for illegally transferring him into I.C.E. custody.

• Emi MacLean, San Francisco Deputy Public Defender and Enrique Nambo’s attorney
• Phil Courey, owner of Opa! Opa! restaurant where Nambo worked
• Maria Aguilera, friend of Nambo who arrived at the Sacramento jail to pick him up
• Maria, mother of Nambo’s young daughter
• Dr. Rhonda Rios Kravitz with the Sacramento Immigration Coalition; filing a complaint against Sacramento County and the Sacramento Sheriff’s Department for violations of state law

WHEN: Wednesday, Dec. 4, 12:30 p.m.

WHERE: Sacramento Sheriff’s Department, 711 G St., Sacramento, CA 95814

STATEMENTS:

Janeth Rodriguez, chair of SIC, said in a statement:

“We are gravely concerned about the violations of individuals’ civil rights in Sacramento County as it pertains to SB54. We will continue to hold the Sheriff and the County accountable when we see outright violations of the law. The Sacramento Immigration Coalition in conjunction with other organizations will continue to stand for transparency and accountability to the public and to the rights of immigrants in our region.”

Emi MacLean, Deputy Public Defender at the San Francisco Office of the Public Defender and attorney for Nambo, said:

“Enrique Nambo is a longtime Sacramento resident and father of a 5-year-old daughter who is the light of his life. He should be home with his daughter, and not sitting in immigration detention hours away.”

Enrique Nambo said from Mesa Verde Detention Center:

“I have been detained for four months already after Sacramento Sheriff deputies turned me over to ICE. It is unbearable, except that I am fighting so that I can be reunited with my daughter. I am so grateful for the support of so many people—including everyone who is speaking out today.”

BACKGROUND:

Enrique Nambo is a father, talented chef, hard worker and, for more than 15 years, has been a dedicated member of his community. And now he is in immigration custody, far from his family, and facing the threat of deportation and family separation. He has been detained for nearly three months and needs to be reunited with his daughter.

Nambo was arrested this summer for a DUI, and was due to serve four days at a Sacramento County jail (Rio Cosumnes Correctional Center in Elk Grove).

However, instead of being released to his family and friends after serving his short sentence, he was transferred by local officials directly from the jail to ICE custody. His friend Maria Aguilera was waiting at the jail to bring Nambo home; little did she know that jail officials were in the back handing him over to ICE agents.

Under the California Values Act (Senate Bill 54), law enforcement officials in California are prohibited from transferring people to ICE except in very limited circumstances. Yet, the Sacramento Sheriff’s Department continues to violate this law, sending our community members into the hands of ICE.

In late October, an immigration judge refused to release Enrique, asserting incorrectly that the law does not allow him to be released. Enrique is not a danger to the community and should be home with his daughter.

He must now return to court to seek both release and an opportunity to remain in the United States with his family.

A DUI should not mean permanent family separation. Jails should not be transferring our community members to ICE for deportation.

Enrique’s case is so important because he should be home with his daughter and it illustrates the heartbreaking impacts of this nation’s immigration policies that tear families apart. But it is also important because Sacramento law enforcement officials should not be transferring people to ICE custody.

#

The Sacramento Immigration Coalition is a network of individual organizations that meet to strategize and support efforts for Health Care for All, DREAMERS, drivers’ licenses for the undocumented, TRUST Act, etc. SIC wants to push for a pathway for the 12 million immigrants in the U.S. that find themselves without documentation.

The mission of the San Francisco Public Defender’s office is to protect and defend the rights of our indigent clients, through effective, vigorous, compassionate, and creative legal advocacy.

SAN FRANCISCO – On November 25, 2019, a San Francisco man, Robert Thomas, was released from the county jail after being wrongfully identified as the perpetrator of an assault. Deputy Public Defender Ilona Solomon, who represented Mr. Thomas, directed the Deputy District Attorney handling the prosecution to compare the photos of the perpetrator with her client, which unequivocally showed Mr. Thomas was not the assailant.  Other than being a black man and carrying a bag from a nearby Target store, Mr. Thomas did not resemble the perpetrator.

On November 11, a man used a bicycle helmet to assault a San Diego man while he and his family were waiting for an elevator at the Powell Street BART station. The assailant fled and was identified as: a black male, 30-40 years old with some facial hair, shiny squared glasses or sunglasses, a dark blue old-style bike helmet, and carrying a Target bag. No clothing description was given. 

After the assault, while speaking to BART police, the victim’s wife saw Mr. Thomas carrying a bag from Target and identified him as the assailant to police. The identification was only corroborated by general agreement from other family members who saw her pointing out Mr. Thomas. Mr. Thomas was arrested though he did not understand why. Importantly, Mr. Thomas had no bike helmet, nor facial hair, nor any type of glasses, and had just entered the BART station.

Nearby surveillance footage from the Union Square area later showed the man presumed to be the actual assailant wearing a bike helmet, carrying a Target bag, and wearing square sunglasses and distinctive clothing (a teal jacket and a small child-size backpack being worn on the front of this body) walking in the area right outside the BART station immediately following the assault. 

On November 16, BART Police Officer Ian Reid observed this same distinctive character at the Powell Street BART station wearing a teal jacket, square sunglasses, with a small child-size backpack worn on the front and a bike helmet. Officer Reid detained, questioned, and photographed him. Two days later, Officer Reid submitted a supplemental report to the District Attorney who was prosecuting the wrongful case against Mr. Thomas, alerting them to the possible misidentification.

Meanwhile, Deputy Public Defender Ilona Solomon had repeatedly requested evidence from the District Attorney, including surveillance footage of the attack itself, demonstrating that Mr. Thomas was wrongfully arrested. Charges were dismissed on November 25 and Mr. Thomas was released later that day.

“Robert Thomas spent two weeks in jail because of faulty eyewitness identification and racial profiling,” Solomon said. “The prosecution and its agencies, including BART police, should be required to turn over all evidenceto the defense immediately, so that innocent persons are not jailed without cause.”

Mr. Thomas’s case adds to the growing momentum to reevaluate cases based solely on eyewitness identification. Danielle Harris, Director of Public Policy for the San Francisco Public Defender commented, “For over 100 years, social scientists have taught that uncorroborated eyewitness identification is not reliable, especially when stress is high and those involved are of different races.”

Interviewing witnesses together can also be problematic and lead to wrongful accusations with serious consequences for innocent people like Mr. Thomas. Although the eyewitness identification was corroborated by the family members in this case, it resulted in them accusing a person who did not even fit their own description of the assailant.

SAN FRANCISCO – On Friday, November 15, 2019, a jury found Carlos Gordon not guilty on all counts of assault with a deadly weapon, making criminal threats, and a misdemeanor assault. The jury agreed with the defense that Mr. Gordon’s act of tossing a few decorative pebbles in the direction of a construction worker was not a crime, but rather no more than a nuisance.

Mr. Gordon has been in San Francisco county jail since April when prosecutors charged him with premeditated attempted murder, a charge that could have carried a life sentence if convicted.

The defense filed a motion arguing that the D.A. had given misleading statements to the judge at the initial preliminary hearing. A second judge reviewed the defense’s motion and threw out the attempted murder charge, but Mr. Gordon remained in custody.

After the adverse ruling, Deputy District Attorney Tom Ostly decided to dismiss and refile the case charging Mr. Gordon with attempted murder again along with three other counts of assault with a deadly weapon. The charge of attempted murder was again dismissed for lack of evidence. The case eventually went to trial, with Mr. Gordon facing eight felony charges.

In a clear example of overcharging, the prosecution had charged six felony counts of assault likely to cause great bodily injury; one for each pebble.

Judge Bruce Chan presided over the trial, and dismissed several counts due to lack of evidence. The jury decided that Mr. Gordon was not guilty on the two remaining felony charges and a misdemeanor. If Mr. Gordon had been convicted on all of those charges, it would have carried a sentence of nearly fifteen years in prison.

In the end, the jury found Mr. Gordon not guilty on all counts, and he finally walked free after spending almost eight months in custody in San Francisco county jail.

“The D.A. wanted a life sentence for attempted murder, but the jury didn’t even concede a simple assault,” said Deputy Public Defender Martina Avalos. “Thankfully, judges and jurors ensured that Mr. Gordon’s freedom was not stolen as a result of egregious overcharging.”

SAN FRANCISCO – On Tuesday, November 12, 2019, a jury acquitted a homeless man of two felony charges after police pulled him over at gunpoint for riding a stolen motorcycle on Division Street and San Bruno Avenue at 6pm on June 26, 2019. However, he may still serve four years in prison for driving without a license.

Charles Mabrey, 50, a native of Oakland, was homeless living in his car in San Francisco, but having a car was becoming a nuisance. He asked some people about where he could get an e-bike or a motorcycle. He said that a friend told him of a motorcycle that his cousin was selling. When the cousin showed up, Mabrey mounted the motorcycle, which was already turned on, and took it for a test ride.

The prosecution argued that he should have seen the punched in ignition and assume it was stolen. However, he never saw or touched the ignition, which is in an unusual place on the Triumph Scrambler.

Mabrey stalled in an intersection where an observer noticed him not wearing a helmet. The observer called 911 to report an African American man struggling to operate the motorcycle and suggested that it might be stolen. Police responded promptly and found the man and the motorcycle described on the 911 call nearby.

When the first police car arrived, both officers exited the vehicle, drew their guns and proceeded to yell commands at Mabrey. More police arrived, and the reporting officer, Trevor Magallanes, himself a long-time motorcyclist, was not able to immediately locate the oddly-placed ignition. Mabrey said that he saw other officers reach under the handlebars and pull down some loose wires, indicating that the bike had been hotwired.

Mabrey was charged with two felony counts for possession of stolen property and joyriding without consent of the owner. The prosecutor, Brittney Delgado, failed to prove that he had actual knowledge that the bike was stolen, and even suggested that the person who had tried to sell it to him was not real. Rather, deputy public defender Crystal Carpino argued that Mabrey was reasonably mistaken that he had permission from the person he thought was the owner.

It turned out that the bike had been stolen, but not by Mabrey. The real owner’s home surveillance camera showed two helmeted men – which it was agreed was not Mabrey – arrive on one motorcycle and ride away on two around 1am that same day.

The jury found Mabrey not guilty on both felony counts. However, he did admit to driving those few blocks without a license, which is a misdemeanor.

Mabrey remains in custody because he is currently on probation for drug charges. One probation carries an ESS (execution of sentence suspended) which is an agreement that any violation of his probation would cause him to serve four years in prison. Judge Ross Moody has the discretion whether or not to detain him on the ESS, or whether to release him for time served for the misdemeanor.

“Trying to put someone in prison for four years on such a minor probation violation is inhumane and unnecessary,” said Carpino.

Mabrey has a history of convictions, but also of family tragedy. When he was a teenager, his whole family was murdered by his sister’s violent on-and-off boyfriend.

“It was a long time ago, but it will affect his life forever. Some people can’t understand what life is like on the streets,” said Carpino. “Prosecutors just want to put somebody in prison for a while and forget about them. It doesn’t solve anything.”

Public Defender, Mano Raju, said, “We are pleased that the jury understood that Mr. Mabrey didn’t know the bike was stolen, and proud that he had a public defender who was able to illustrate the reality of the situation.”

Mr. Mabrey is scheduled to appear for a sentencing hearing on Wednesday, November 20, at 1:30pm.