Illustration by Pete Ryan.
On Feb. 9, 2010, San Francisco residents Emon Brown and Joc Wilson were acquitted of all charges in a double murder trial that had lasted five months. The outcome was undoubtedly a relief to the two men and a coup for the defense lawyers who had represented them. But it was a serious blow to prosecutors in the office of then-District Attorney Kamala Harris. The case against Brown and Wilson had been lost despite the testimony of multiple eyewitnesses to the killing and DNA evidence from the crime scene that matched the genetic profiles of both defendants.
The case's unexpected conclusion caught the attention of Rockne Harmon, a retired prosecutor who worked for decades in Alameda County. Harmon is recognized as one of the country's foremost experts on the use of DNA evidence in criminal cases. He was employed in the winter of 2010 as a consultant on DNA prosecutions for the San Francisco DA's office. At the time of his hiring in 2007, Harris had praised him as a "guru of DNA evidence."
Harmon became convinced that a factor in the courtroom defeat had been shoddy forensic work and damaging testimony by Cherisse Boland, an analyst in the DNA unit of the San Francisco Police Department Crime Laboratory. Among other things, Boland had failed to disclose in her DNA testing write-up — and to the grand jury that initially indicted Brown and Wilson in 2008 — that the majority of the DNA found at the crime scene belonged to neither man, but to a third, unknown person she never sought to identify. When this lapse emerged at trial during Boland's cross-examination by defense lawyers, Harmon reasoned, her credibility in the eyes of jurors took a beating.
Harmon decided to write a formal critique of Boland as one section of a broad-ranging memorandum to his superiors on the workings of the crime lab's DNA unit. It was an appropriate time for such a review. The drug division of the lab — which operates independently of the DNA section — was already under scrutiny because of the actions of Debbie Madden, a narcotics analyst who had been caught stealing cocaine evidence for personal use.
In April 2010, auditors from the California Department of Justice were scheduled to visit the DNA lab to ensure it was complying with FBI-mandated standards for all forensic facilities that receive federal funding. In August, another major body that oversees forensic labs, the North Carolina-based American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB), would visit San Francisco's crime lab to renew its certification. When Harmon completed his memo at the end of March, he requested that the SFPD share the document with these outside inspectors, in the spirit of transparency, so they could be aware of the lab's shortcomings.
That didn't happen. Instead, the report was buried.
The SFPD never shared the document with auditors, and as time passed, the suppression of the memo took on more puzzling forms. In response to inquiries from the press and defense attorneys over the past six months, top police officials and prosecutors have denied the memo's existence or claimed it was not an official report, but an e-mail Harmon sent privately to an acquaintance.
It now appears that neither of these statements is true. After a long silence, Harmon — who left the San Francisco DA's office in July 2010 — has decided to tell the story of his critical memorandum, and express his frustration and disappointment at the false information supplied to the defense bar and the public by the DA's office and SFPD.
"I'm not pleased that the full story — the full, true story — is still not out there," Harmon says. "What happened is wrong, not following up on [the memo] or discussing it or sharing it. It is germane to future legal issues. It's just something I'm not used to seeing as a prosecutor."
Along with further documentation obtained by SF Weekly, the picture that emerges is of an ongoing pattern of misrepresentations by law enforcement officials regarding concerns about the workings of the crime lab's DNA unit. Among them:
• Harmon's full report has never been released. An incomplete document shared with SF Weekly and defense lawyers in December by the DA's office is an attachment to a larger memo on the functioning of the crime lab's DNA unit, according to Harmon. This memo, he says, was coauthored by Braden Woods, now head of the criminal division of the DA's office. Defense attorneys say the failure to disclose the entire document is a violation of prosecutors' ethical and legal obligations, since it could be relevant in cases involving DNA evidence.
• Past assertions about Harmon's memo by officials are directly contradicted by newly released records. In April, the San Francisco City Attorney's office, responding to a Sunshine Ordinance complaint filed by SF Weekly, forced the office of District Attorney George Gascón to turn over documentation revealing that Harmon originally sent his report to Russ Giuntini, who at the time was the chief staff attorney at the DA's office, second only to Harris. This belied statements from DA's office chief of operations Sharon Woo and former chief of administration Paul Henderson that Harmon's memo was only a private e-mail to an outside party.
• The SFPD has also played a role in withholding information about Harmon's report from visiting state inspectors and the press. In response to public-records requests, police have claimed that no communications between the DA's office and police officials on the subject of Harmon's memo exist. However, Harmon has shared with SF Weekly the contents of an April 12, 2010, e-mail from Giuntini to former SFPD Assistant Chief and Interim Chief Jeff Godown and Capt. David Lazar. (In July, Godown was hired as deputy chief of the Oakland Police Department.) In his e-mail, Giuntini urged them to share Harmon's memo with California DOJ auditors.
Taken together, these obfuscations constitute a trend that defense lawyers and other criminal-justice experts say is troubling. A formal critique of the crime lab's DNA testing techniques could be used as evidence to impeach the credibility of forensic analysts when they testify in high-stakes trials. More broadly, it could cast doubt on the reliability of one of police investigators' most powerful evidential tools. The fact that Boland was a primary target of Harmon's criticisms is also significant, since she was later promoted to supervisor of the DNA unit.