By Erin Sherbert
By Rachel Swan
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By Albert Samaha
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The San Francisco Police Department is launching an internal-affairs investigation based on a whistleblower's allegations that senior police officials and prosecutors may have deliberately tried to deceive state inspectors about the health of the department's DNA-testing lab.
Rockne Harmon, a former Alameda County prosecutor who worked as a consultant to the San Francisco District Attorney's office on DNA evidence from 2007 to 2010, made the allegations in sworn, closed-door testimony before Superior Court Judge Charles Haines in September. Harmon said there was "a deliberate attempt to subvert the inspection review process by the Police Department," and that top-ranking officials in the DA's office might also be involved in what the judge himself characterized as a "cover-up."
The transcript of the conversation between Harmon and Haines had been under seal at the request of prosecutors, along with other documents Harmon provided the judge. Last week, SF Weekly obtained the sealed records and published them online. This week, in light of the documents' exposure, Haines dissolved his protective order and made them part of the public record.
After reading the transcript on the SF Weekly website last week, SFPD Commander Lyn Tomioka, chief of staff to Chief Greg Suhr, said that "any allegation made" in Harmon's testimony "against any [SFPD] member, sworn or civilian, will be investigated by my internal-affairs division." She added, "It's an investigation to find out ... who should have taken action, and what action was taken or not taken." Tomioka likewise said that state Department of Justice investigators have begun reviewing Harmon's assertions about problems at the DNA lab.
Superior Court Judge Anne-Christine Massullo also issued an order last week for the Police Department and DA's office to preserve all e-mails and correspondence among prosecutors and police officers mentioned in the transcript, including DA's office Chief of Operations Sharon Woo; Braden Woods, head of the DA's criminal division; and David Pfeifer, head of the DA's Department of Special Operations. Referring to the transcript, Massullo said a review of communications regarding the DNA lab among those individuals is "prudent, given what is in the public domain."
Harmon's concerns center on the fact that a memorandum he and Woods wrote criticizing the workings of the DNA section of the SFPD crime lab was withheld from the California Department of Justice auditors who visited the facility in 2010 to make sure it was complying with FBI-mandated forensics standards.
In particular, Harmon was worried that a section of the memo criticizing the head of the DNA lab, Cherisse Boland, was not turned over. In the memo, Harmon discussed what he described as "disingenuous" and potentially deceitful sworn testimony given by Boland in a 2010 murder trial, as well as an inaccurate forensic report she produced in the case.
Harmon testified before Haines that he and former Chief Assistant District Attorney Russ Giuntini urged former SFPD Interim Chief Jeff Godown and SFPD Capt. David Lazar to share the memo with DOJ officials, since it contained information about ethically and scientifically dubious forensic practices that could affect the lab's accreditation. Yet the memo was never shared with inspectors.
"I think people were manipulating the fact-finding process by withholding information," Harmon told Haines.
Referring to Boland's testimony and DNA analysis while speaking with Harmon, Haines asked whether her mistakes were "just incompetence." Harmon said her inaccurate statements appeared to be "deliberate."
"It's the closest thing you can get to out-and-out lying, prevaricating," Haines said.
"Yes," Harmon replied.
Boland did not return calls seeking comment.
Tomioka said Boland will be a subject of the coming internal-affairs probe, as well as Godown — who has since left the SFPD — Lazar, and Capt. Greg McEachern. She said the Police Department cannot directly investigate employees of the DA's office, but that any evidence of wrongdoing by prosecutors uncovered by internal-affairs investigators will be shared with District Attorney George Gascón.
Among the sealed records published by SF Weekly last week was a copy of an April 2010 e-mail from Giuntini to Godown and Lazar, urging them to share the memo and make Harmon and Woods available to speak directly to the auditors about the workings of the DNA lab. In a telephone interview last week, Godown said that he did not recall the e-mail or Harmon's memo, but that any information pertaining to the DOJ audit would have been shared with Lazar and McEachern. "Listen, all I can tell you is I received a lot of e-mails from a lot of people," Godown said. "I'm not disputing anything Rock Harmon said or didn't say.... I'm not saying I received it, I'm not saying I didn't receive it."
Both the SFPD and DA's office denied possessing the e-mail, in response to public-records requests for the document from SF Weekly in August. The DA's office has subsequently asserted that all of Giuntini's electronic correspondence was erased in April 2011, some 10 months after he resigned, per standard office procedure. Tomioka said the investigation will look at why the document was not found in SFPD records. "I don't see how an archive search couldn't find that," she said.
In addition to the SFPD investigation, Tomioka said the state DOJ independently revisited the subject of Harmon's memo. In October, she said, DOJ inspectors pored over the memo in her office, taking "a lot of notes." She said she did not allow them to leave with a copy since it was under a protective order by Haines, and that she has not heard back from the inspectors. DOJ spokesman Shum Preston did not return calls seeking comment.
Tomioka said Suhr has also written a letter to the American Society of Crime Lab Directors Laboratory Accreditation Board asking them to redo an audit of the crime lab that took place in the summer of 2010. Officials at the lab accreditation board and the DOJ have both said Harmon's memo was not shared with them before SF Weekly reported on its existence.
SFPD brass and forensic scientists were not the only ones implicated in Harmon's testimony to Haines. Braden Woods, chief of the criminal division of the DA's office, was also singled out by Harmon for his opposition to sharing the memo with DOJ auditors. "I hate to bring Braden into this, but he's right in the middle of this," Harmon said, according to the transcript.
"The day that Braden told me the [DOJ] inspection was imminent, I said: 'We can't do that,'" Harmon recalled in his testimony. "And he said to me: 'Well, Rock, what happens if the lab ends up getting closed because of this?' And I said: 'Hey, if that is what is supposed to happen, that is what is supposed to happen.'" Harmon said he also called Pfeifer to alert him to his concerns.
Haines was clearly impressed by the importance of the information Harmon laid out in their interview. "I have to make a note, it's always the cover-up that makes the things worse than the problem to begin with," Haines said to Harmon. "It makes things look worse than perhaps what they are in reality."
The DA's office, when first questioned about Harmon's memo in December 2010, denied the document existed. It later released an appendix to the memo, but not the report itself. In January 2011, Woo sent a letter to defense attorneys falsely suggesting that this appendix was the memo in its entirety.
Prosecutors only acknowledged the memo when defense lawyers requested it following an August cover story on its suppression by SF Weekly. The public defender's office has sought the memo as evidence that could help prove the innocence of James Mayfield, a Bayview church deacon charged with the 1976 murder of Jenny Read, a young sculptor. The case against Mayfield is based largely on DNA evidence analyzed by Boland, and defense attorneys could use the memo to discredit her testimony at trial.
In September, after his closed-door session with Harmon, Haines ruled that the memo, as well as a transcript of Harmon's testimony to him, were exculpatory evidence that should be shared with defense lawyers. The DA's office appealed the ruling, but a panel of state appeals court judges unanimously affirmed Haines' decision.
Nevertheless, the documents remained under a court protective order preventing attorneys from sharing them with the public, except for a single page of Harmon's memo dealing with Boland. The rest of the memo, Haines has ruled, is not immediately relevant to the Mayfield case and falls under an exemption from disclosure for attorneys' private thoughts and opinions.
The public defender's office inadvertently e-mailed the sealed transcript and correspondence from Giuntini to SF Weekly last week, along with the unsealed portion of Harmon's memo. The DA's office threatened to move for Deputy Public Defender Mark Jacobs to be held in contempt of court as a result.
On Monday, however — after Jacobs apologized in court for the mishap, and recounted how he and Public Defender Jeff Adachi had urged a reporter in "strong terms" not to publish the sealed documents — prosecutors relented. Haines said he would not have punished Jacobs for the accident. "You don't want to hold him in contempt? Well, I wasn't going to, anyway," Haines told Woo, who spoke on behalf of the DA's office at the Monday hearing on the documents' release.
Woo and Woods declined to comment on the allegations in the transcript.
Massullo is expected to convene a hearing in the coming weeks on how the revelations in the transcript will affect four separate rape cases that rely on DNA evidence. Last week, when she ordered the DA's office and SFPD to preserve communications among the officials mentioned in the document, she signaled that Harmon's memo, and his testimony, would likely be significant for those cases.
"I think if you read the transcript, and match it up with the memo, it's pretty clear why Judge Haines found it exculpatory,"she said.
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