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Jury Acquits In Case Involving Snickers, Alleged Air Freshener Assault

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San Francisco, CA — Following a trial that hinged on the sole testimony of a convicted felon, a jury on Wednesday afternoon found a San Francisco man not guilty of a bizarre attempted robbery, residential burglary and assault.

Motel resident Willie Smith, 42, was accused of pushing his way into a neighbor’s room, spraying the man with air freshener, eating his Snickers bar and threatening to urinate on him.

After a nine day trial, a jury acquitted Smith of four felony charges and eight lesser included charges, including attempted robbery, residential burglary, elder abuse and false imprisonment of an elder. The jury, which deliberated one day, hung on two counts of misdemeanor elder abuse. A mistrial was declared on the two misdemeanor charges and Smith will be released from San Francisco County Jail today, said his attorney, Deputy Public Defender Michelle Tong.

The attempted robbery and residential burglary charges each represent “strikes.” If convicted of all counts, Smith faced up to 10 years in state prison.

Smith was arrested March 22, 2010 in his room at the Kean Hotel in the 1000 block of Mission Street.  Neighbor Gordon Gantz, 73, told police that Smith had knocked on his door and pushed his way in when Gantz opened it. Gantz said Smith pushed him once in the chest and slapped his face while telling him he needed money. The men had been friendly before the incident, visiting each other’s rooms and Gantz occasionally giving cash to Smith. When Gantz told Smith he didn’t have any money, Smith allegedly took a Snickers bar off his table and began eating it. Though the door was open throughout the incident, Gantz said he felt trapped in his room. Gantz suffered no injuries in the incident.

Gantz told an investigator that at one point during the struggle, Smith pretended he was going to urinate on him and sprayed him with air freshener.

At trial, jurors simply didn’t believe Gantz, a felon with multiple convictions for making false bomb threats, Tong said.

“His credibility was already shaky and then he lied on the stand,” Tong said.

Gantz’s truthfulness was called into question during the trial over his use of racial epithets. Gantz testified he never used racist language. Two former neighbors, called to the stand by Tong, testified they frequently heard Gantz use slurs against black residents of the motel. One resident testified to being on the receiving end of the abuse.  In her closing statement, Assistant District Attorney Shay Matthews conceded her star witness was a racist. Gantz is white and Smith is black.

Additionally, police never visited the crime scene and Gantz was the sole witness, Tong said.

San Francisco Public Defender Jeff Adachi said the case was overcharged by the District Attorney’s office.

“Proving these serious charges rested on a single witness with a history of lying,” he said. “Fortunately, in this case, the jurors were able to reach the right result after witnesses raised serious questions about Mr. Gantz’s truthfulness.”

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4,500 Kids To Get Backpacks, School Supplies

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SAN FRANCISCO – The MAGIC Program’s Back-to-School Celebration and Backpack Giveaway, the largest of its kind in San Francisco, will kick off the academic year Saturday, Aug. 14 by distributing 4,500 new backpacks stuffed with school supplies to kids and teens.

The BMAGIC event will be held 11 a.m. to 3 p.m at the Bayview Opera House, 4705 3rd St. and the Mo’ MAGIC event at the Ella Hill Hutch Community Center, 1050 McAllister Street, from 10 a.m. to 1 p.m. At the Ella Hill Hutch event, families must visit the health fair to receive backpacks.

Numerous elected officials will be on-hand, including State Senators Mark Leno and Leland Yee as well as Assemblyman Tom Ammiano. SFUSD Associate Superintendent of Bayview Schools Dr. Patricia Gray will also be present.

“School programs for kids in need have been decimated by budget cuts, making this event more important than ever,” said San Francisco Public Defender and MAGIC Founder Jeff Adachi. “Parents continue to struggle to provide the essentials for their kids in this tough economy.”

The MAGIC Back-to-School Celebration and Backpack Giveaway, now in its seventh year, also doubles as a resource, health and activity fair with free food, games, arts and crafts, music, sports and performances.

In preparation for Saturday’s event, more than 100 adults and youth will volunteer to stuff the 4,500 backpacks with pencils, notebooks, rulers, folders, crayons, and other age appropriate supplies.

“The need has never been greater for families, and fortunately, our sponsors and community supporters have stepped up to the plate to make this year’s event the best ever,” said BMAGIC Director Yvette Robles.

This year’s event was severely threatened by budget cuts before being saved by more dozens of MAGIC’s community partners pooling their resources.

“We decided that no matter what budgetary restraints we face, the event must go on,” Robles said. “A child who shows up on the first day of class without the necessary tools is physically at school, but isn’t present in the learning process.”

The MAGIC program, initiated by the Public Defender’s Office in 2004, convenes more than 100 community organizations and concerned citizens who work to reduce the number of kids who fall through social service gaps by efficiently coordinating opportunities, support and resources. MAGIC started in Bayview as BMAGIC, and was introduced to the Western Addition as Mo’ MAGIC in 2006 at the request of Supervisor Ross Mirkarimi.

Each year, more than 500 youth and their families receive books at BMAGIC’s Annual Literacy is Freedom Fair. More than 200 youth participate in Mo’ MAGIC’s yearly Summer Reading program, which provides books and daily reading classes in the Western Addition.

“Mo’ MAGIC is excited about another backpack giveaway that focuses on supporting the academic and physical health of our children and their families,” said Mo’ Magic Director Sheryl Davis.

This year’s event was made possible by generous donations from the 49ers Foundation, Wells Fargo Foundation, Urban Solutions, Tides Foundation Bayview Hunters Point Community Fund, Bayview Hunters Point YMCA, Veritable Vegetable, UCSF, Koshland Fellows of the San Francisco Foundation, California Pacific Medical Center, San Francisco BayView newspaper, Comcast, Rainbow Grocery, Afrosolo, Kaiser, St. Mary’s Medical Center and Schools of the Sacred Heart.

“We are honored to be a part of the MAGIC Back-to-School Celebration and Backpack Giveaway again this year to further provide youth in Bayview and Western Addition the opportunity to succeed in the classroom,” said 49ers Owner Dr. John York. “The MAGIC Back-to-School Celebration and Backpack Giveaway is a great way to further provide youth with the tools they need and aligns directly with our 49ers Foundation mission to keep youth safe, on track and in school.”

MAGIC will also distribute backpacks to kids and youth in the Tenderloin, South of Market, Sunset, and Mission neighborhoods.

For more information on BMAGIC, visit www.bayviewmagic.org. For more information on Mo’ MAGIC, visit www.momagic.org.

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Judge Rejects DA’s Claim Of Judicial Bias In Crime Lab Ruling

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San Francisco, CA —A court rejected a bias claim lobbed by the San Francisco District Attorney against a judge overseeing evidence issues in the crime lab scandal, ending prosecutors’ efforts to remove the judge from the case.

The San Francisco District Attorney’s office claimed San Francisco Superior Court Judge Anne-Christine Massullo could not fairly preside over narcotics cases being challenged due to possible evidence tampering because she is married to a defense attorney who handled one federal case involving the San Francisco crime lab.

In his Wednesday ruling, Monterey Superior Court Judge Thomas W. Wills wrote that Massullo’s marriage plays no role in her ability to oversee narcotics cases in which evidence may have been compromised by theft and misconduct by crime lab employees.

The San Francisco District Attorney’s office attempted to get Massullo disqualified less than a month after she issued a scathing May 17 ruling against prosecutors. In her 26-page ruling, which compelled the disclosure of crime lab-related documents in 60 narcotics cases, Massullo detailed a systematic withholding by prosecutors of evidence exposing problems in the crime lab and among SFPD employees. Defense attorneys and their clients are entitled to the material under Brady v. Maryland.

Prosecutors also claimed that Massullo’s presence on the case would help her husband gain publicity for an appearance on a legal education panel discussing the Brady law.

In his Wednesday ruling, Wills pointed out that the appearance was routine and unpaid.

The record is “devoid of evidence” that Massullo’s husband would have benefitted in any way from his wife presiding over the case, Wills wrote.

“Judge Massullo’s husband is not a witness in these proceedings; he is not appearing before her in these proceedings; he is not even appearing in the same court system where Judge Massullo presides. There is absolutely no evidence of financial gain to her or her husband,” Wills wrote.

The judge also ruled that the challenge was untimely, filed weeks after Massullo addressed the matters in court and asked prosecutors to file all challenges immediately.

Deputy Public Defender Chris Gauger, who argued in Massullo’s courtroom for prosecutors to disclose all misconduct information on SFPD employees, applauded Wills’ decision.

“I agree with and welcome the ruling,” Gauger said. “Judge Massullo was ethical in her conduct and went beyond her duty to avoid any appearance of impropriety. It is unfortunate that the process of bringing these cases to justice was sidetracked.”

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Courtroom Stunner: Case Dropped Mid-Trial, Teen Freed

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San Francisco, CA — A felony burglary case took a dramatic turn today when prosecutors dismissed charges mid-trial, hours after a public defender uncovered key evidence that exonerated her teenage client.

San Francisco resident Dayshon Hunter, 18, was freed after prosecutors dropped their case in light of the new evidence. Hunter had been in jail since April 23 on a first degree burglary charge, which carries a sentence of up to six years in state prison.

“What’s astonishing about this case was the utter failure of police to investigate,” said Hunter’s attorney, Deputy Public Defender Sujung Kim. “Even the smallest follow-up by investigators could have spared Mr. Hunter this ordeal.”

The charge stemmed from an Oct. 30, 2009 burglary in which jewelry and computer equipment was stolen from a Hunters Point home. Thieves ransacked a teenager’s upstairs room, and Hunter’s fingerprint was found on a video game case.

The complaining witness told police he had bought the NBA 2K10 video game a week earlier and had been its sole handler. The police got this sodapdf which is a great editing software for documents where they put this case in.

After matching the fingerprint, the police investigation inexplicably stalled for four months, Kim said. On Feb. 1, investigators contacted the homeowner, who told them his next door neighbor witnessed four men burglarizing the house. Police never followed up with the neighbor.

A warrant was issued March 16 for Hunter’s arrest. He was arrested more than six weeks later.

When shown a photo of Hunter by a public defender investigator, the neighbor excluded him from the men she witnessed burglarizing the house. Hunter also had an alibi for the date and time of the crime, confirmed by numerous witnesses.

But the video game case proved the linchpin to the case.

When Kim examined the game case, the price tag of $19.99 seemed low for a then- newly-released game. Tuesday evening, after prosecutors presented their case to the jury, Kim visited the Game Stop where the game was purchased. After being shown a photo of the game, a manager revealed that instead of being sold from behind the counter in plastic-wrap, this game had been a display model—touched by thousands of fingers before being sold. Hunter, an avid gamer, was a frequent shopper at the same Game Stop branch.

San Francisco Superior Court Judge Mary Morgan dismissed jurors this morning. Hunter was subsequently freed from San Francisco County Jail.

San Francisco Public Defender Jeff Adachi said the mid-trial dismissal was highly unusual.

“This is what happens when the police fail to properly investigate a case and jump to assumptions based on faulty evidence,” Adachi said. “The scary thing here is this could have happened to anyone.”

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Jury Finds Woman Not Guilty Of Muni Robbery

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San Francisco, CA — A San Francisco woman accused of kicking and robbing a fellow Muni passenger was found not guilty of felony charges after a month-long trial, San Francisco Public Defender Jeff Adachi announced today.

Jury members on Tuesday afternoon acquitted San Francisco resident Shanti Rhodes, 22, of robbery and felony assault likely to produce great bodily injury. Rhodes was convicted on a lesser charge, misdemeanor simple assault, and released Tuesday on time served. Rhodes, who had no previous convictions, faced five years in state prison if convicted of the felony charges, said her attorney, Deputy Public Defender Vilaska Nguyen.

Rhodes faced trial with two co-defendants, San Francisco residents Kristian Longino, 23, and Ebony Espinoza, 26, who both faced robbery charges. San Francisco Superior Court Judge Carol Yaggy directed an acquittal of  Longino on July 15 due to insufficient evidence. The jury on Tuesday found Espinoza not guilty of robbery, but convicted her on a lesser charge of grand theft.

The jury reached its verdict after five days of deliberation.

“Jury members carefully questioned the testimony they heard and were extremely diligent about weighing each piece of evidence,” Nguyen said.  “This was a fair verdict by an exceptionally thoughtful jury.”

Rhodes, Longino and Espinoza were arrested March 15, 2010 after an argument with a fellow passenger broke out aboard the 21 Hayes bus.  The passenger, a 19-year-old Pacifica woman, reportedly began trading insults with the women after stepping on Rhodes’ shopping bag and refusing to apologize.

Witnesses told police a scuffle broke out as all four passengers exited the bus at Market and Eighth streets. The Pacifica resident claimed Rhodes, standing on the bus steps, kicked her in the face while the other women pulled her hair and stole her cell phone and iPod. She refused medical attention.

Police detained the three women as they sat in a nearby taxi. No iPod was found in their possession. The passenger’s phone, which was found inside the taxi, was returned.

Adachi said the jury made the right decision.

“Jury members were able to untangle this chaotic scene and determine there was little solid evidence against Ms. Rhodes,” Adachi said.

Of the three women, only Rhodes was a Public Defender client. Attorneys Andrew Tursi and Marsanne Weese represented Espinoza and Garry Preneta represented Longino.

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*Video* Public Defender’s Campaign Takes Aim At Bias

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San Francisco, CA — An African American man runs through the streets of San Francisco, prompting wary glances from onlookers. As he reaches his home and scoops up his smiling toddler in a hug, a police siren wails. “Show me your hands,” commands a voice off-camera.

The 30-second video, Innocent Until Proven Guilty, was created pro bono by Tom Donald Films for the San Francisco Public Defender’s Office. The PSA is part of a national campaign launched by the San Francisco Public Defender’s office to remind people of their Constitutional right of presumed innocence.

Jeff Adachi introduces Innocent Until Proven Guilty:

“People should be judged by character, not color,” San Francisco Public Defender Jeff Adachi said. “In this PSA we are trying to get people to reflect about their own possible biases and racial profiling. It’s a reminder that nationality, race or sexual orientation doesn’t matter—everyone has a right to be judged individually.”

Watch Innocent Until Proven Guilty:

Adachi decided to launch the campaign a series of high-profile studies and news reports, including:

· An analysis of arrest data in San Francisco’s prostitution stings (SF Weekly, Stung,6/16/10) found that Latino men may be unfairly targeted and that some men are being cited without agreeing to sex.

· A string of violent incidents in the Bay Area earlier this year that ignited tensions between the area’s Asian and African American communities.

· A comprehensive study of racial bias in jury selection by the Equal Justice Initiative (Illegal Racial Discrimination in Jury Selection: A Continuing Legacy 6/10/10) found widespread evidence of discrimination aimed at keeping minorities off of juries in the U.S., with prosecutors asserting pretextual reasons to justify their removal.

Note to PSA directors: PSA can be downloaded in high resolution at http://www.psamedia.org/

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Jury Acquits SF Man of Murder

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San Francisco, CA — A San Francisco man who stabbed an attacker who burst into his residence was found not guilty Tuesday of second degree murder.

The San Francisco jury acquitted Mikel Harris, 44, following a nearly month-long trial and two-and-a-half days of deliberation. Jury members also found Harris not guilty of involuntary manslaughter. They could not reach a verdict on voluntary manslaughter and a mistrial was declared.

Harris was arrested May 8, 2009 for allegedly killing Andre Fluker, 41.

Harris was chopping garlic in his small room in a Tenderloin residential hotel when Fluker, who had been banned from the property for previous violence, entered and immediately punched him, said Harris’ attorney, Deputy Public Defender Kleigh Hathaway.

“Mr. Harris was cornered in his 11 x 13 room and did what any of us would have done—he raised his arms to defend himself,” Hathaway said.

As the 206-pound Fluker lunged toward the 135-pound Harris to strike him again, the steak knife Harris was holding entered Fluker’s chest, Hathaway said. The incident lasted less than five seconds, based on surveillance that captured Fluker storming to Harris’ room and then stumbling out.

The jury heard testimony from numerous witnesses who described Fluker’s extensive pattern of violence, including choking, robbing and beating men and women. Hotel employees testified they often called police on Fluker for trespassing and terrorizing residents.

San Francisco Public Defender Jeff Adachi commended the jury for examining all the evidence and rendering a fair decision.

“Imagine being in Mr. Harris’ position, making lunch inside your home when someone attacks you without warning. He didn’t intend to kill the decedent, only to protect himself,” Adachi said.

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Judge Dismisses Vehicular Manslaughter Case In 2009 Crash

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San Francisco, CA — A judge dismissed a vehicular manslaughter charge Tuesday against a motorist involved in a 2009 fatal crash after determining that prosecutors unreasonably delayed the case and police lost critical evidence.

Oakland resident Valerie Evans, 52, faced up to a year in county jail if convicted on the misdemeanor charge, said her attorney, Deputy Public Defender Kwixuan Maloof.  The case was dropped by San Francisco Superior Court Judge James Collins after Maloof argued that prosecutors violated Evans’ due process and right to a speedy trial by waiting six months to bring the case and failing to preserve key evidence from the crash.

The case stemmed from a Sept. 18, 2009 accident on Cesar Chavez Street near Florida Street that killed motorcyclist Brian Caton, 21, of Santa Rosa.  Witnesses told police that Caton was speeding eastbound on Cesar Chavez Street just as Evans pulled out of a parking space and made an illegal u-turn from eastbound Cesar Chavez to westbound Cesar Chavez. Caton was thrown from his 2002 Kawasaki Volcan as it hit Evans’ 2006 Toyota Corolla.

Evans, who immediately stopped to render aid, was cited for making a u-turn in a business district. Caton, who was taken to San Francisco General Hospital, died five days later.

On March 16, 2010, Evans was charged with vehicular manslaughter.

Maloof said there was no justifiable reason for the delay in charging Evans. The law requires prompt charging so that the accused can prepare a defense and critical evidence can be preserved.

“The district attorney cannot explain why Ms. Evans was charged six months after the incident,” he said. “There was no new evidence and it wasn’t a case in which Ms. Evans couldn’t be found. She has lived in the same address for the past decade and has worked at the same job since 1994.”

While police preserved Evans’ car, they released Caton’s motorcycle to a towing company the day of the crash and can no longer locate it.  In his ruling, Collins acknowledged that the motorcycle was reasonably expected to play a significant role in Evans’ defense.

San Francisco Public Defender Jeff Adachi applauded Collins’ decision to dismiss the case.

“This case was a terrible, tragic accident. It was not a homicide,” Adachi said.

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Case Tests DA’s Willingness To Disclose Officers’ Violent Pasts

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San Francisco, CA — A police officer and potential witness in an upcoming narcotics trial was once suspended for gouging a handcuffed man’s face with a broken crack pipe. Friday, prosecutors declared they were ready for trial, despite never disclosing the incident to the public defender.

Today, Public Defender Jeff Adachi said the failure to disclose Officer Reynaldo Vargas’ misconduct flouts the law and ignores a May 17 order by San Francisco Superior Court Judge Anne-Christine Massullo. In the ruling, the judge details a systematic withholding by prosecutors of evidence of misconduct in the crime lab and among SFPD employees. Defense attorneys and their clients are entitled to the material under Brady v. Maryland.

“It is outrageous that the district attorney is refusing to provide evidence of an officer’s violent history,” Adachi said. “This trial was the first to test prosecutors’ willingness to comply with the Judge Massullo’s order and they failed.”

Adachi has set a July 1 deadline for District Attorney Kamala Harris to turn over the criminal records and misconduct histories of an estimated 135 SFPD officers. He has received no response.

Vargas’ background was highlighted Sunday in a San Francisco Chronicle story about officers’ misconduct histories and criminal records. In 2005, Vargas was suspended for six months after cutting the man, who was suspected of sneaking a free ride on a cable car. Vargas was also accused of lying about the incident, but that charge was dropped in a settlement.

Vargas is one of several police officers who could be called to testify in the trial of Josefino Rufino, scheduled to begin by July 6.  Rufino is charged with possession of methamphetamine and maintaining a home where drugs are sold.

Vargas was among six officers who served a search warrant on Rufino’s San Francisco home on April 29, following a tip from a confidential informant. Rufino, 44, was arrested after officers allegedly found a baggy of methamphetamine lying on his computer desk.

Rufino is represented by Deputy Public Defender Mamta Ahluwalia.

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Ruling: DA To Blame For Madden Fiasco

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San Francisco, CA — In a 26-page ruling, a Superior Court judge lays responsibility for hundreds of dismissed drug cases squarely at the feet of the District Attorney, stating prosecutors hid behind a procedural mechanism after failing multiple times to disclose evidence involving SFPD witnesses.

In her May 17 order, which compels the disclosure of certain crime lab-related documents in 60 narcotics cases, Judge Anne-Christine Massullo details a systematic withholding by prosecutors of evidence of misconduct in the crime lab and among SFPD employees. Defense attorneys and their clients are entitled to the material under Brady v. Maryland.

District Attorney Kamala Harris has said that her office could not conduct background checks on Madden — or more than 80 police officers who were later revealed to have criminal or misconduct records — because of confidentiality rules surrounding police employees.

But in her ruling, Massullo dismisses the explanation, noting it is contrary to all case law and stating that prosecutors—not police—are ultimately responsible for turning over the information.

“…the District Attorney cannot hide from her affirmative obligation behind a procedural mechanism designed for a separate and unrelated purpose,” Massullo wrote.

San Francisco Public Defender Jeff Adachi said the judge’s decision reinforces that there is no excuse for the District Attorney’s failure to disclose police background checks or information regarding evidence tampering in the lab.

“This ruling blows huge holes in the DA’s claim that she cannot run background checks due to the confidentiality of police officer records,” Adachi said. “Withholding this critical evidence from the defense violated the Constitutional rights of hundreds or perhaps thousands of people charged with crimes.”

Adachi said that his office would have to begin reviewing cases of individuals whose convictions may be set aside because evidence of police officer misconduct was not disclosed by prosecutors.  Adachi has asked Harris to provide the records of the officers, but has received no response.

Massullo noted that by at least Nov. 19, 2009, “individuals at the highest levels of the District Attorney’s Office knew that Madden was not a dependable witness at trial and there were serious concerns regarding the Crime Lab.”

Not only did the District Attorney lack a Brady policy regarding SFPD witnesses, “Its failure to produce information actually in its possession regarding the Crime Lab is a violation of the defendants’ constitutional rights,” Massullo wrote.

Adachi said that the Public Defender’s office would begin demanding that the District Attorney comply immediately with Massullo’s order in all criminal cases.

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