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.
The memo could also call into question the validity of the DNA lab's accreditation by the state DOJ and ASCLD/LAB. Recognition from these bodies is important for buttressing SFPD forensic analysts' qualifications as expert witnesses, as well as securing federal funding for lab resources. During the 2010 fiscal year, San Francisco received $744,381 in such grants, according to National Institute of Justice records.
It is still unclear what Harmon's full memo has to say about the crime lab's DNA unit. Citing concerns about violating his past contractual obligations to the DA's office, Harmon declined to discuss the larger document's contents with SF Weekly. He did say that other sections of the memo dealt with DNA analysis in “cold-hit” cases, in which newly discovered DNA samples or matches revive dormant investigations.
The fragment of the report that has so far been released, however, is highly critical. For this reason, according to Public Defender Jeff Adachi, it is important that the entire document be shared with defense lawyers working on cases involving DNA evidence.
“This kind of memo, written by an expert of Rockne Harmon's reputation, is explosive,” Adachi says. “You're talking about a situation — and I've been around for a couple of decades — which is really unprecedented. You have a prosecutor who is an expert in DNA issues acting as a whistleblower for problems at the DNA unit of the crime lab. And not only was he ignored, but the DA's office denied the memo existed.”
Officials at the SFPD and DA's office declined to comment for this story. “While it is clear from your repeated inquiries that you would like to be provided with more information, we do not have any additional records or information that can be provided without breaching the work product and confidentiality guidelines that allow us to meet our mandate as a law enforcement arm of the state and county,” DA's spokesperson Erica Derryck said in an e-mail.
The consequences of Harmon's findings, and of their suppression by law enforcement officials, will not be known until he releases all the documents in his possession, including his full memo and e-mails about it that he or Giuntini sent to Godown, Lazar, and Woo. While Harmon has concerns about sharing those records with the press, he says he will readily comply with a subpoena or court order for his e-mails and larger memo on the crime lab from defense lawyers, judges, or other official fact finders.
“I will gladly hand [documentation] over to anyone in a position of authority who is interested in pursuing this,” he says. “I'd be happy to testify in court or be deposed under oath.”
It seems that he'll get his chance. Defense lawyers say they now plan to subpoena Harmon to learn what he knows. From early indications, what emerges in these legal proceedings could be an embarrassment — to both the DNA lab whose workings Harmon criticized and the law-enforcement officials who have failed to adequately disclose his findings.
Shortly after 9 a.m. on Sept. 2, 2007, Byron Smith — a Visitacion Valley resident and father of five who police believed was tied to gang activity in the Sunnydale projects — ran from three men riding bicycles at the southeastern edge of San Francisco, near the Daly City border. Finding an open garage on Velasco Avenue, Smith ducked inside. Two of the men pursuing him jumped off their bikes, followed him, and executed him with multiple gunshots, including a shot fired directly into the top of his head at point-blank range.
His killers fled the scene. But they left behind physical evidence that police would quickly seize on: their bicycles. Investigators swabbed the bikes' hand-grips for traces of DNA that could identify the murderers. A forensic analysis performed at the SFPD crime lab in Hunters Point revealed that genetic material found on the grips matched the DNA profiles of Joc Wilson and Emon Brown, two suspects arrested for the murder by police. (The third bicyclist was never arrested.)
On Jan. 31, 2008, Boland appeared before a San Francisco grand jury. She had worked for three years at the crime lab, and it was only her third appearance as an expert witness. Swearing to tell the whole truth, she presented the results of her testing: DNA matching that of Brown and Wilson was present on the two bicycles. As an afterthought, she cautioned that a mix of DNA (some of it present in such small quantities as to be useless for identification purposes) had been found on the grips — not an unexpected finding, since bikes sometimes have several users. The grand jury delivered indictments against both suspects, setting them on the path to a protracted murder trial.
What Boland did not tell the grand jury, and what she had not disclosed in the written and signed report on her analysis, might have led to a different outcome. Scrutiny of her methods and test samples would later reveal that the much of the DNA present on the bike grips came from neither Brown nor Wilson, but from a third, unidentified man. The predominance of this “major” profile could have had an impact on the murder investigation. Assuming it did not come from an incidental source (such as a police officer or storage clerk handling the evidence), the DNA sample could have implicated another murder suspect.
Boland, for reasons that have never been made entirely clear, was uninterested in this lead. Instead, she stopped short once she had partial genetic matches to the two men police believed had committed the crime. When she testified in December 2009 at the trial of Brown and Wilson (who were charged with the murder of Smith and another man, Brandon Perkins, in August 2007), she came under withering questioning. Brown's defense lawyer, Tony Tamburello, pressed her on why she had not sought a match for the major DNA source in the computerized libraries of violent felons' genetic profiles to which she had access.
It is worth noting that criticisms of Boland's methods don't hinge on a particular opinion as to the guilt of Brown and Wilson. Had Boland attempted to identify the major DNA profile, and been forthright about its presence in her report and grand jury testimony, the case against the two men might still have been strong. So long as the genetic material did not match that of another convicted criminal who could plausibly have committed the murder, it arguably would have had little impact on prosecutors' case. As it was, her failure to perform due diligence in seeking out the contributor of the major DNA profile opened her to accusations of sloppy or even deceitful work.
“It flies in the face of what would be good scientific practice,” says George Sensabaugh, a forensic sciences professor at UC Berkeley. “If it were a minor DNA profile and it were background noise, you might make an argument why it should be disregarded. But if it's part of a major profile, it's very hard to see how you would not disclose that. You're supposed to account for all the data you see.”
Boland did not return calls seeking comment.
In April 2010, two months after Brown and Wilson were acquitted, Tamburello wrote a letter impugning Boland's methods. He sent it to Gascón, who at the time was SFPD chief. (Gascón was appointed interim DA in January, after Harris' election as state attorney general.) Tamburello wrote:
“The failure to include the information about the unknown major male DNA contributor violates the generally accepted standards of competency regarding report writing required by the scientific community. The failure to provide a full and accurate report in compliance with objective scientific standards certainly warrants an investigation regarding the crime labs [sic] protocols. But more importantly, a person who willfully misrepresents or conceals a material fact or makes a misleading statement in violation of his or her oath to testify truthfully before a Grand Jury may additionally constitute criminal conduct warranting futher [sic] investigation.”
In response to this complaint, the SFPD opened an internal affairs investigation into Boland. Last month, SFPD spokesman Officer Albie Esparza said the status of that investigation could not be disclosed because it was a personnel matter.
Following the acquittal of Brown and Wilson, Boland wrote an e-mail to Edward Blake, a Richmond-based forensic scientist who dissected her work on behalf of Brown's defense team. In the messages, she justified her conduct by saying that she had identified the major unknown DNA profile in her report and testimony as present on one of the bicycle grips. (She did not address the thrust of Blake's criticism, which was that she had not disclosed that the profile was present on all of the grips on both bicycles.) Boland also said she had decided not to search for a match for the unknown DNA contributor in the FBI's database because the testing sample did not meet standards intended to protect false matches with innocent individuals who might have deposited DNA at a crime scene.
Blake, a respected DNA expert who has done extensive work for prosecutors and defense attorneys, was unconvinced. He decided to share Boland's e-mail apologia with a veteran prosecutor in San Francisco with whom he had worked in the past: Rockne Harmon.
Harmon is an unlikely whistleblower. A career prosecutor known for his hard-nosed effectiveness, he is past chairman of the California District Attorneys Association Forensic Evidence Committee. He has been an outspoken advocate of familial DNA testing, a controversial procedure that widens investigators' nets to seek DNA matches through suspects' relatives. Defense lawyers and civil libertarians have criticized the process as invasive and overly aggressive.
Harmon's opinion of Boland's work is not yet fully known, since the DA's office has declined to make public, or even acknowledge possessing, his formal memo on DNA lab operations. The memo's existence was revealed by Harmon in an interview for a December SF Weekly cover story [“Missing Links,” 12/15/10] on problems at the crime lab's DNA unit. One day after the story was published, the DA's office, which had previously denied possessing his report, released eight pages of documentation.
The document was confusing. At first glance, it appeared to be an e-mail sent by Boland to Blake about her work on the Brown case. On closer review, it was evident that Harmon had written comments on Boland's explanation of her methods in the margins. His criticisms were underlined, a kind of annotation of her self-justifications. This unusual format could theoretically be one reason officials from the DA's office mistakenly thought the document was a private e-mail by Harmon.
In more recent interviews, Harmon has clarified the origins of the annotated e-mails. He says they were only an appendix to his more formal memorandum on the DNA lab. He declined to discuss the exact contents of the complete memo, but said one section of it was devoted to problems with DNA analysis as revealed in Boland's work on the Brown/Wilson case.
Even the observations that emerge in the incomplete documentation released by the DA's office are highly critical. Harmon notes that Boland does not deal with the question of why she omitted the full presence of the unknown DNA profile from her forensics report. “Because of this misleading writing of the report … no one knew or should reasonably have been expected to know that this Major profile was there,” Harmon writes. He also picks apart Boland's argument that the profile could not have been uploaded because of standards designed to protect innocent people from false matches. By Boland's erroneous standards for profile searching, Harmon points out, many previous successful SFPD investigations based on DNA evidence could not have been conducted.
In a letter released with the documents, Paul Henderson, former chief of administration at the DA's office, wrote, “Mr. Harmon's statements were not made on behalf of the District Attorney's Office, and were sent directly to an outside party.” This explanation was amplified by Woo in a letter she subsequently sent, along with the same documents, to defense lawyers who had inquired about it.
“There is an e-mail correspondence between Edward Blake, Cherisse Boland and Rockne Harman [sic] that we believe to be the 'document/report/memo/internal investigation' reflected in news articles regarding the subject of Boland's testimony,” Woo wrote. “We do not believe that this material constitutes either Brady material or discoverable material… Nevertheless, we are providing this correspondence to you in the spirit of transparency.” (Under the U.S. Supreme Court's ruling in the 1963 case Brady v. Maryland, prosecutors have a legal duty to turn over evidence that could help defendants' cases.)
Of course, there was nothing “transparent” about Woo's disclosure. Harmon, when he learned of it, says he tried to contact her so she could correct her public misrepresentation of his work. He never heard back from her, though the two apparently traded unanswered phone calls and short e-mails. In a February 2011 e-mail to Woo, provided by the DA's office in response to a public records request, Harmon implored her to take the time to understand his memo's significance. “You never had a substantive discussion with me about what I wrote. You said you were too busy,” he wrote. “I was always available to do so.”
Today, Harmon says, “She has never — no one has ever — taken me up on my offer to explain anything.”
Harmon says he is all the more puzzled by Woo's inaccurate statements because another top staffer in the DA's office, Braden Woods, chief of the criminal division, is fully aware of the circumstances under which the memo was produced and should have communicated them to his colleagues. Woods, who worked with Harmon on improving prosecutions of cold-hit cases, helped write part of the formal memo, according to Harmon. He also argued against disclosing the report to visiting auditors because of the negative information about crime-lab practices it contained, Harmon asserts.
“Braden Woods knows all of this, absolutely, because he was worried about the impact of this,” Harmon says. “Braden Woods didn't want this to happen. He told me that he didn't want this to be presented to inspectors.” He adds, “It really begs the question, because you have a guy who's one of the top guys, Braden, who knows all this, and the DA's office has a responsibility to be candid.”
Woods declined to comment. “I'm going to refer everything” to Cristine Soto DeBerry, Gascón's chief of staff and head spokesperson, he said. DeBerry did not respond to repeated requests for comment and to interview Woods.
Worries about the report's impact are best understood in the context of events at the crime lab in the spring of 2010. Having survived a bout of negative publicity brought on by Madden, the lab employee caught stealing drug evidence, Gascón, at the time SFPD chief, announced the closure of the lab's hopelessly tainted narcotics-testing unit. At a May 2010 press conference on the shuttering of the drug lab, Gascón emphasized that police would now be able to concentrate on DNA testing, which he described as “frankly of greater importance to our crime-fighting efforts.”
The public release of a memo impugning the DNA lab, or the lab's failure to pass outside audits based on such a memo, would have been a major blow to the police department's already staggering forensics operation. Nevertheless, in an e-mail sent to top police officials, the day before state DOJ auditors arrived, Giuntini urged that the memo be provided to inspectors. The recipients of his e-mail were Godown and Lazar, who at the time were overseeing efforts to get the crime lab back on track.
“I know that DOJ is starting the DNA audit soon,” Giuntini wrote on April 12, 2010. “May I suggest you show them Rock's memo and I am happy to make both Rock and Braden available to the auditors since they are the users of that service and understand the technology as experts in the field.”
Giuntini, who retired last summer, declined to comment for this story. His e-mail was dictated over the phone to SF Weekly by Harmon, who has a copy. Harmon says he will release the e-mail only to lawyers or investigators who seek it through appropriate legal channels, so he can be sure that he does not violate the past terms of his employment at the DA's office. Harmon says he and Giuntini also discussed his memo and its relevance for the audit in a face-to-face meeting with Godown at the police department before inspectors arrived.
The e-mail is a vital part of the paper trail surrounding Harmon's memo, indicating as it does that the top staff attorney of the DA's office was aware of the report, believed it important enough to be shared with inspectors from the state DOJ, and communicated those concerns to at least two members of the SFPD brass. Without Harmon's intervention, however, it would never have come to light. In response to public records requests, both the DA's office and SFPD denied the existence of any correspondence from Giuntini to Godown or Lazar during March or April 2010.
Godown and Lazar declined to be interviewed through SFPD spokesman Esparza, who said simply, “We're not going to be able to facilitate that request, and that's all there is to it.”
Reporters don't have the legal authority to make public officials speak against their will. Defense lawyers do. Charged with the responsibility of ensuring due process for their clients, they can subpoena witnesses and documents that could undermine the prosecution's case. And San Francisco attorneys have begun to take an interest in what Harmon has to say.
Last week, officials in the Public Defender's office said they plan to subpoena Harmon and the documents he possesses in an ongoing homicide case. The specific case hinges in part on DNA evidence analyzed by Boland. However, Adachi says his office plans to use information provided by Harmon in other cases, arguing that any DNA evidence, even that tested by other analysts, could be impeached based on the contents of Harmon's full memo.
“This evidence has obvious relevance to any criminal case involving Cherisse Boland,” Adachi says. “It also would be relevant to any case involving DNA evidence. It goes to the practice and protocol of testing DNA evidence in that lab.”
In June, David Wise, a private defense attorney, sought to obtain documentation produced by Harmon in pretrial hearings in a rape case. Superior Court Judge Anne-Christine Massullo ruled that it wasn't relevant so early in the court proceedings because Boland had not worked on the case, but Wise says he will seek to subpoena Harmon and obtain his full memo at his client's trial.
A more wide-ranging question concerns the consequences of the repeated failures by the SFPD and DA's office to disclose Harmon's criticisms to outside inspection agencies. Harmon, in particular, has questions about whether the DNA lab can still lay claim to its accreditation if facts emerge indicating that law-enforcement officials deliberately concealed damaging information from auditors.
“If there is withholding of negative information from inspectors — and that's a big if — that would seem to undermine the integrity of the whole investigative process,” Harmon says.
Ralph Keaton, executive director of ASCLD/LAB, says that Harmon's memo was not shared with inspectors from his organization. “To my knowledge, the answer is no,” Keaton says. He adds that he cannot determine whether that omission would compromise the San Francisco crime lab's accreditation until he knows what is in the report.
Shum Preston, spokesman for the California DOJ, says that state auditors were not given Harmon's memo. He also says he does not know whether the withholding of the report would invalidate the lab's success in the audit, and declined to make the auditors who visited the lab available for comment.
Preston's boss is Attorney General Kamala Harris, who might have something at stake in questions about the memo's suppression. In December, both Harris and Gascón — at the time San Francisco's DA and police chief, respectively — said they had no knowledge of Harmon's memo. Today, Harmon says he does not know whether Harris was apprised of the report or its contents. “I never dealt with her. I would see her once in a while in the hallway,” he says. Gascón declined to comment through his public-relations office.
Both the findings of Harmon's memo and the unexplained failures on the part of police and prosecutors over the past six months to share the report or describe it accurately in public statements could revive questions about ethical and scientific lapses related to the crime lab. They could call into question the soundness of evidence used in much more significant and emotionally charged cases — rapes, murders, assaults, burglaries, and more — than the low-level narcotics cases affected by the now-resolved scandal in the lab's drug unit.
Such consequences have so far been forestalled by misinformation. Now Harmon is preparing to take the stand and tell his story. Once the whole truth is out, some of San Francisco's highest-ranking law-enforcement officials could have some things to explain.