Criminal Justice

Stop the homeless sweeps

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EDITORIAL Sister Bernie Galvin and Religious Witness with Homeless People held a press conference Oct. 4 to release some remarkable data: since Mayor Gavin Newsom took office, San Francisco has issued 46,684 citations to homeless people, mostly for what are known as quality-of-life crimes. That’s cost the taxpayers $7.8 million.

Unfortunately, almost no news media showed up — the mayor, it turns out, somehow scheduled his press conference on homelessness at exactly the same time. As Amanda Witherell reports on page 15, Newsom’s staff say it’s all a coincidence — but it reflects how this administration is increasingly treating homeless issues.

Newsom, with the assistance of District Attorney Kamala Harris, is shifting the city back to a model that treats homelessness and poverty as crimes. But years of evidence prove that approach doesn’t work.

Newsom’s plan, outlined in a memo that Sup. Chris Daly made public last week, involves sending a team of social service and outreach workers through the Tenderloin with police officers. Now the cops and the social workers are saying they won’t patrol together, but the message and the impact are the same: people who commit the sorts of offenses that are almost inevitable when you don’t have a place to live — like sleeping on the streets and panhandling — will increasingly be dragged into the criminal justice system.

Frank Jordan, a former police chief, tried that when he was mayor in the early 1990s; he called the program Matrix, and it was an utter failure. The reason is obvious: most homeless people can’t pay the fines for these violations. So either the citation process is a waste of everyone’s time or, if the city pursues the nonpayment and piles on more and more citations, it winds up creating a criminal record for someone who already is going to have trouble finding work. The promise of services implied by the social workers’ involvement in Newsom’s plan means nothing if services aren’t there — and the city still can’t offer, say, substance-abuse treatment on demand or enough housing for all of the people who need it.

Yet despite all the evidence, Harris has now assigned a full-time staffer to do nothing but prosecute these low-level offenses. She and Newsom both say they want to help people use services — but the only service the DA’s Office offers to homeless people who wind up in court is a handout, a single-page list of referrals.

San Francisco has been down this road so many times before that it’s infuriating. Criminalizing homeless people is not only wrong; it’s expensive, inefficient, foolish, and morally offensive. It also clogs the courts and takes the cops even further away from working on serious crimes.

Daly says he’s going to reintroduce his measure allocating an additional $5 million for housing for homeless people. That’s a good move, of course. But the supervisors ought to think about something else: if Harris, Newsom, and the cops want to persist in counterproductive and cruel homeless sweeps, perhaps the supervisors should move to cut funding to those departments by a total of, say, $7.8 million. 2

The crime of being homeless

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› amanda@sfbg.com

Sleeping in the park, urinating in public, blocking the sidewalk, trespassing, drinking in public — these and about 10 other infractions are commonly and collectively known as "quality of life" crimes because they affect the condition of the common spaces we all share in San Francisco.

For a homeless individual, they’re also called "status" crimes, committed in the commons because there is no private place to sleep, go to the bathroom, or crack a beer. For years the District Attorney’s Office hasn’t bothered to allocate time or resources to prosecute these petty crimes, and advocates for the rights of homeless people have contended that to do so results in unfair persecution of those who have no place to call home.

Elisa Della-Piana is an attorney with the Lawyer’s Committee for Civil Rights and has spent much of the past three years in traffic court arguing against fines for homeless people who have received quality-of-life citations. As of this summer, Della-Piana said things have changed down at the Hall of Justice.

Now every time she stands up to represent a homeless person in traffic court, someone from the DA’s Office gets up too, fighting for the other side. Though there’s no way to tell from the traffic court calendar if the defendant is homeless, Della-Piana and Christina Brown, another attorney who represents through the Lawyer’s Committee, have witnessed prosecutors ignore quality-of-life citations that didn’t appear to have been collected by homeless people.

"When the person is homeless and the DA stands up and prosecutes, that’s selective prosecution. They’ve done that in the past with other populations in San Francisco," Jenny Friedenbach of the Coalition on Homelessness said, citing historic crackdowns on queers and Asians.

Deputy district attorney Paul Henderson denied the DA’s Office is selectively prosecuting only quality-of-life citations received by homeless individuals. "We’re prosecuting all of them," he told the Guardian, confirming this is a new task for the office. "In the past the DA’s Office wasn’t staffed to have people in the courtroom. I think we’re there every day now." He said more staff has been hired, and a team he heads is now devoted to the issue.

When asked why this was a new priority for the DA’s Office, Henderson said, "We felt that people weren’t getting the help they needed. The public’s interest wasn’t being served. [These issues] were not getting addressed in the traffic court without the DA being there. Neighborhoods and communities have been complaining about the lack of responsiveness, and so we’re trying to address that."

Henderson called the day in court an open door for a homeless person to walk through and access services. "We want to handle them responsibly to make sure there’s some accountability for breaking the law, but try to do it in a way that’s an intervention."

But advocates for homeless rights say that’s not what happens.

"They’ll tell you we’re there to offer services to homeless individuals," Della-Piana said. "Which is a piece of paper. In fact, what they have is the same list of services the police pass out. They’re not actually doing anything to connect people to the services. They’re just offering the list. They could offer those services in the street. There’s no reason to go through the court system."

This list of homeless resources is updated every six months by the San Francisco Police Department’s Operation Outreach and is offered on the street, according to Lt. David Lazar, leader of the 20-officer branch of the SFPD that interfaces directly with the homeless population.

"The accountability is a problem, and the process they go through is not working," Lazar said. "There’s a large population we’re seeing that doesn’t want services." He listed three reasons: inadequacies in the shelter system, a desire to be left alone, and a mental health or substance abuse problem that impairs judgment. "If we could house absolutely everyone, what would they do during the daytime?" he asked. "You need intensive case management, job support, substance abuse support."

But homeless-rights advocates say the stability of housing is the first step toward improving the quality of life for the homeless. Della-Piana said, "Ninety-five percent of my clients come to me and say, ‘I’m getting social services.’ They point to something on the list and say, ‘I’m doing this.’ They’re doing everything they’re supposed to be doing, but they don’t have housing yet. That’s why people are still sleeping in the park."

Henderson said critics of the new tack "aren’t recognizing that laws are being broken. People’s qualities of life are being dragged down by these violations. If it’s your street, your door, and there’s feces on it every day, that affects your quality of life."

Ticketing the homeless is not a new thing. Two homeless-rights groups — Religious Witness with Homeless People and the Coalition on Homelessness — have a standing Freedom of Information Act request with San Francisco Superior Court that provides a monthly tally of the infractions likely committed primarily by homeless people. According to their data, for the past 15 years the SFPD has averaged about 13,000 quality-of-life citations per year. Last year Religious Witness released a study showing that more than 31,000 citations had been issued during Mayor Gavin Newsom’s administration.

"For the police, the sheriff, and the court cost, we estimated it cost almost $6 million for those 31,000 citations," said Sister Bernie Galvin, executive director of Religious Witness. Galvin said a new study, to be released at City Hall on Oct. 4, shows that citations and costs have skyrocketed in the past 14 months. "Now we’re putting in the dramatic new expense of the DA," she said, adding, "Everyone wants to prosecute a greater number. It’s like it makes it justifiable to issue these 31,000 tickets if we can prosecute them. Actually, it makes it crueler and more expensive."

Media reports have characterized the tickets as empty pieces of paper, issued and then metaphorically shredded when a homeless individual fails to pay the $50 to $500 fine. In a recent San Francisco Chronicle story, Heather Knight reported that "all quality of life citations are getting dismissed." Yet when they don’t — and violators either don’t show up in court or can’t pay the fine — infractions become misdemeanors or an arrest warrant is issued, both of which become problems for people trying to access services.

"It backfires," said Christina Brown, an associate at O’Melveny and Myers who volunteers time in traffic court representing homeless people through the Lawyer’s Committee. "When people are served with warrants, they’re precluded from services." Even if the person cuts a deal with the DA to access services in lieu of paying a fine, they still have to return to court to prove they’ve done that. If they can’t get the paperwork or can’t make it to the court in time, it becomes a misdemeanor.

"The criminal justice system is actually making it harder if they want to find somewhere else to sleep," said Della-Piana, who related an anecdote of a client who had a few open-container infractions. The client was afraid to go to court when she couldn’t pay the fines, so a warrant was issued. She’d spent the past seven years on the Department of Housing and Urban Development’s waiting list for public housing and got kicked off because of the misdemeanor.

Public Defender Jeff Adachi expressed concern that a dragnet is being created for arresting homeless people committing status crimes they have no control over. "We have to be very careful we’re not trying to legislate services through the criminal justice system. We do too much of that already," he said. "This approach assumes that if a person is in trouble, they’re more likely to accept the services. I haven’t seen that is true."

Henderson doesn’t necessarily agree that the criminal justice system shouldn’t play a role in assisting homeless people: "I want this citation to serve as a wake-up call for you." He thinks people need to be held accountable and would like to see the city adopt the plan for a Community Justice Center, modeled after New York City’s, a vision that his boss, District Attorney Kamala Harris, and Newsom also share.

"We believe San Francisco has a unique infrastructure and need for the Community Justice Center. That’s why we are proposing to pilot this initiative in the Tenderloin and South of Market area, where more than a third of the city’s quality of life offenses occur," Harris and Newsom wrote in a May 13 editorial in the Chronicle. "The center promises to give relief to the neighborhoods most affected by quality of life crimes."

During an Oct. 1 endorsement interview with the Guardian, Newsom said he hoped to open the new center by December. Lazar, who sits on the committee that’s still hammering out the details for how exactly the center would work, agreed with Henderson that it’s the next step in more direct connection with services: "We’re trying to put the criminal justice system and the social justice system together."

Della-Piana said this still ignores the black marks that misdemeanors leave, which become good reasons for some service providers to save their limited resources for people with clean records. "The two ideologies don’t mesh," Della-Piana said. "My homeless clients want housing. There currently is not enough of it to go around. Arresting them instead of citing them for sleeping and other basic life activities will not change the availability of the most needed services."

The tragic tale of Tamesha Tobie

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› gwschulz@sfbg.com

At first, police believed it was a terrible, self-inflicted mishap.

It happened April 15, just after the funeral held for a San Francisco man who’d succumbed to diabetes. Mourners were gathered in the Western Addition home of Tamesha Tobie’s grandmother, Edna Tobie. Tamesha, a 14-year-old first-year high schooler in town from Stockton for the funeral, was hanging out with two teenage boys, her cousins, in a bedroom — a room where, it turns out, another family member had stashed a powerful .357 Magnum revolver. Suddenly, the house filled with the sound of the gun’s pop.

Tobie’s aunt was cooking in the kitchen. She rushed to find out what was going on. The two boys met her in the hallway and told her there was a gun; she found Tobie on the bed, not moving. Nearby lay the pistol, with five live rounds and a shell still visible in the cylinder under the hammer.

The family dialed 911, and soon the area was packed with uniforms. Paramedics arrived with the police, as did a media flack who expected reporters, a crisis response team from the health department, the local medical examiner, and Sup. Ross Mirkarimi, whose district includes Edna Tobie’s Oak Street home.

"These are vivid experiences you don’t lose," Mirkarimi said. "The gut-wrenching part is that it was a young girl."

Fox, CBS, the Associated Press, and the San Francisco Chronicle all reported what the cops told them: Tamesha Tobie had accidentally shot herself with the gun.

But it turns out that wasn’t true. In fact, according to an autopsy completed by the medical examiner June 1, Tobie didn’t pull the trigger.

Her death has become another in a long list of unsolved homicides in San Francisco — and another sign that gun violence, both accidental and intentional, is raging out of control.

THE COPS DON’T KNOW


Months after the killing, the San Francisco Police Department didn’t seem aware that Tobie’s death was anything but an accident.

When we contacted the SFPD’s press office early in September, the staffers weren’t aware that her death had been ruled a homicide, nor was Lt. John Murphy, head of the homicide unit. Department spokesperson Sgt. Neville Gittens even requested that the Guardian fax him a copy of the report.

Now the SFPD acknowledges that Tobie was a homicide victim. "We believe it was done at the hands of someone else," Gittens said a week after receiving the report.

A homicide inspector assigned to the case said he learned of the medical examiner’s final report two weeks ago but explained that he’d already regarded Tobie’s death as suspicious.

Inspector Mike Johnson said he thinks one of the two cousins in the room with Tobie fired the weapon. Police have also concluded that the gun was used in an unrelated San Francisco homicide a few months prior by another young family member before being hidden in the home of Tobie’s grandmother.

Nobody has been arrested in that case either. Despite the fact that this gun has now been used to kill at least two people, Johnson conceded that not enough evidence exists to make an arrest in the first murder, even though a suspect has been identified — an exasperating fact for a city already near last year’s total of 85 murders.

If nothing else, the gun’s owner could possibly be guilty of negligence or child endangerment — but no charges are pending.

"The capacity of government not to do something about this at the pace that it is rocketing is what is absolutely alarming," said Mirkarimi, who’s pushed the Mayor’s Office of Criminal Justice to provide better data on violent crime in the city, "because it’s not going to abate itself…. The way that the number is traveling out of the reach of the Police Department and the district attorney — I think we’re going to need to send red flares up, SOS."

DEADLY HORSEPLAY


The Tamesha Tobie case is tricky; there were only three people in the room, and one is dead. The boy who police believe accidentally ended Tobie’s life won’t confess, Johnson said. Some relatives dispute the police’s view that one of the boys mistakenly fired the weapon and instead believe the story the pair have stuck to so far — that the gun fired on its own from the bed as they horsed around, the bullet smashing through the right rear of Tobie’s jaw.

"Obviously the one boy who did it doesn’t want to say anything to us," Johnson said. "And the other boy is somewhat traumatized, and his parents are worried about any possible criminal charges against him for associating with the first boy. So right now we’re trying to corroborate the stories and what happened through other people who were in the house…. It’s kind of a sensitive thing at this point."

But either way, Tamisha Tobie is the ultimate victim of gun violence, and while her death likely wasn’t intentional, it’s joined the city’s steadily climbing homicide rate nonetheless.

Attempts to reach Tobie’s family for comment were unsuccessful.

Statewide in 2004, 10 kids were killed after being accidentally shot either by themselves or by someone else, according to figures maintained by the federal Centers for Disease Control and Prevention. More recent figures won’t be available until later this year. But according to media accounts and calls to local police jurisdictions, over the past 12 months, three children died similarly just in the Bay Area.

In June a five-year-old boy in Oakland shot himself while playing with a relative’s gun, and a 28-year-old man was arrested for child endangerment — in notably less time than it took San Francisco to complete Tobie’s autopsy.

Just days after Tobie was killed, an 18-year-old girl accidentally shot a younger male teen in the city of Richmond with a revolver he’d found in the home where his death occurred. Last November a 16-year-old boy in Contra Costa County was killed after a friend accidentally shot him in the chest while playing with a .22-caliber revolver. Several other accidents occurred during 2006 in San Francisco and the East Bay, including one involving an Alameda toddler who that spring mistakenly shot his 20-year-old cousin with a .38 that belonged to a family friend.

The gun lobby complains that news stories depicting such deaths overstate the problem of accidents among kids and foster hysteria.

But Shawn Richard of the local nonprofit Brothers Against Guns has a response. The volume of deaths, he argues, isn’t the story.

"It could be a low number. It could be a high number," Richard said. "Regardless, it’s still ridiculous to deal with lives that are being taken by a gun."

Richard founded Brothers Against Guns after two of his siblings were shot to death in San Francisco during the 1990s. He joined the Mayor’s Office, District Attorney Kamala Harris, and the Legal Community Against Violence in drafting a batch of local antigun ordinances that passed the Board of Supervisors last month. One requires local firearms dealers to send inventories of their weapons to the police chief every six months, and another requires all handgun owners to disable their weapons with trigger locks.

Richard is also working with Assemblymember Mark Leno (D-San Francisco) to ban gun shows at the Cow Palace, which is located on state property near the Sunnydale housing project, where violent crimes are a frequent occurrence.

But would all of the antigun news releases in the world have saved Tobie? Homicide inspector Johnson wonders aloud whether they would.

"If the gun’s used in a homicide," Johnson said, "and it’s hidden in the house by children, who’s going to put a gun lock on it?"

Paging Dr. Sumchai

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› sarah@sfbg.com

If mayoral candidate Ahimsa Porter Sumchai were a superhero, she’d be Rescue Girl, her petite athletic form encased in a silver jumpsuit and cape as she swooped in, using her understanding of complicated medical and scientific issues as her secret weapon, to save high-risk communities from environmental racism, economic disenfranchisement, and social displacement.

Instead, she’s the candidate who claims to be thankful her name was excluded from the San Francisco Chronicle‘s Aug. 11 coverage of the mayor’s race, in which Gavin Newsom’s challengers were dissed as a peanut gallery of lunatics.

"I’m glad the Chronicle did not disrespect me in the context of ‘a chicken, a wolf, and a grasshopper’-style jokes, like the race is a big laugh," says Sumchai, 55, as I pick her up at the corner of Third Street and Palau Avenue, which lies a stone’s throw from Sumchai’s campaign headquarters in the heart of Bayview–<\d>Hunters Point and a five-minute drive from the Environmental Protection Agency’s Superfund site at the Hunters Point Shipyard.

This intersection was the main drag for Navy operations when the shipyard was active, Sumchai explains as we pass rows of tightly packed houses and a sprinkling of churches — including Grace Tabernacle Church, which has recently become a rallying point for hundreds of residents concerned about exposure to toxic asbestos dust at Lennar Corp.’s Parcel A redevelopment work site at the shipyard.

Sumchai has made that exposure a central focus of her campaign.

"When I become mayor, Lennar will shut down at Parcel A, and I will establish a plan that includes a human safety component and testing of potentially exposed residents," says Sumchai, who also opposes what she calls "the dirty transfer of the shipyard," through which Newsom has proposed folding Candlestick Point into the shipyard so he can build a stadium for the 49ers — and Lennar can build 6,500 more condos at Candlestick.

Sumchai, whose grandparents came from St. Louis in 1939 and whose father was exposed to asbestos when he worked as a shipping clerk at the shipyard, is an academic success story, emerging from the Sunnydale housing project to graduate from UC San Francisco medical school in 1982.

But while Sumchai is incredibly bright, her eggheadedness sometimes seems to get in the way of letting her make concise, down-to-earth statements. Instead, she often comes across as if she spent too much time in the library, a trait that can leave audiences who don’t have science degrees utterly baffled and uncertain as to what point she just tried to make.

And while the odds are clearly stacked against her in the mayor’s race, Sumchai is using her candidacy to ask tough questions on behalf of a community that is beginning to rally for environmental justice after decades of exposure to pollution from two power plants, two freeways, the shipyard, and a sewage plant that impacts five percent of the city’s population with the smell of treating 80 percent of the city’s solid waste.

"To continue with activities that are harmful challenges the fundamental ethics of being a physician, says Sumchai, who practiced emergency medicine for 20 years.

It’s an experience that informs her current crusade to halt Lennar’s construction on Parcel A at the shipyard. The community’s exposure to dust adds up to "an epidemic," she says.

"It gets on their clothing. It’s airborne. And then there’s the geographic proximity to the site of exposure," Sumchai explains, gesturing to the schools, residences, and neighborhoods that lie downwind of Lennar’s site.

From Monster Park, we take the freeway, exiting at Sunnydale, where Sumchai’s family moved when she was seven.

"When we talk about ‘affordable housing,’ what we really mean is affordable to people making $80,000, while people making $12,000 to $20,000, which is the real average median income in the Bayview, have nowhere to go," Sumchai says. She argues that developers on city-owned land should be required to offer 30 percent to 45 percent of their units at prices affordable to very low-income residents.

Crime is another issue that’s important to the candidate. Sumchai, who used to take the bus from Sunnydale to the Lutheran church on Palau and still uses public transit three times a day, says the gangs she saw then had low-velocity weapons and knives, while today they potentially have access to access military assault weapons.

"The lethality of the gang activity has become enormously problematic," she says, noting that the likelihood of getting enmeshed in the criminal justice system lessens for kids involved in after-school activities more than two times a week.

Sumchai has never lived the posh, comfortable life that is often associated in the public mind with successful physicians. In fact, she’s had to be rescued herself from "critical stressors, major traumas [that] could have led me down a path that was not so productive."

In 1999, she had to surrender her medical license. As California Medical Board records tell it, a series of personal catastrophes hit, and Sumchai was diagnosed with post-traumatic stress disorder after she experienced insomnia, anxiety, emotional upwellings, and re-experienced traumatic moments "when threatened-stressed or exposed to reminders of her graphic experiences as a emergency trauma physician." These upwellings became "explosive outbursts of anger and paranoia" and contributed to Sumchai’s problems, according to her records, which indicate that she received a 116-day stint in county jail, three years’ probation, and a $200 fine for resisting arrest.

Claiming that she did not receive the medical care she needed when she was imprisoned, Sumchai says, "I have as a physician been to the mountaintop and also to the bottom of the pit in terms of my experiences of how the sick, disabled, homeless, and mentally ill are looked upon and treated."

Crediting the influences of key mentors "who had the courage to intervene and bring in resources and moral compasses," Sumchai says her medical license was reinstated in December 2005, but she has no interest or intention of returning to work in emergency or trauma operations. Today she works as a personal trainer, a sports nutrition consultant, and a fitness industry administrator in between writing for the San Francisco Bay View, meditating, doing Pilates exercises, and running for mayor.

And she’s still constantly in fights — even with her friends. Joe O’Donoghue, the fiery former head of the Residential Builders Association, hired her as a personal trainer and told her earlier this year — in confidence, he insisted to us — that former superintendent Matt Gonzalez was getting ready to enter the mayor’s race. The moment she left the gym, Sumchai called Gonzalez — and O’Donoghue promptly fired her.

For now, Sumchai is setting her sights on bringing about change by debating issues that otherwise aren’t being voiced on behalf of folks whose needs and concerns are being neglected.

Editor’s note: The original version of this story failed to note that Sumchai is a practicing physician as well as a personal trainer and nutrition consultant. She has an active medical practice in West Portal.

Harm reduction in the park

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OPINION Mayor Gavin Newsom’s moves to sweep homeless people out of Golden Gate Park have generated a lot of controversy — and a lot of people are missing the point.

I’m not so concerned about people sleeping in the park, just as I’m not so concerned about people sleeping on the sidewalks or the streets if there is no other place available, so long as they are just sleeping.

If folks just slept in the park, cleaned up after themselves, and moved on during the day, most of us would probably not notice. If my friends and I decided to take our tents and sleeping bags to the park and spend the night, there probably wouldn’t be any trace of our stay the next day.

My main concern is when ancillary conduct related to a poverty existence, such as defecation, urination, and the dispersal of syringes, becomes problematic. Is it worse when these things happen in Golden Gate Park or Corona Heights than it is when the same behavior occurs around Marshall Elementary in the middle of the Mission? The costs to police the park and the concrete public realm to the extent that one would see a difference in less feces and fewer syringes are probably as significant as the cost of constructing facilities to house and treat the homeless.

A feasible midrange political solution would be to adopt a broad front of harm-reduction policies designed to lighten the annoying footprints of the homeless on our public spaces without attacking them as human beings. Many are seriously messed up for an often overlapping variety of reasons. Outreach workers, instead of forcing homeless people through the criminal justice system, should offer appropriate technology disposal solutions for the most dangerous waste and trash as well as services to help with sanitation. I’d like for the city to initiate a "shit in a bag" program under which city workers would communicate to the homeless the importance of not befouling public space and provide plastic bags, toilet paper, and sanitizers for them to use.

Similarly, syringe-disposal systems are inherently safe, are designed to be unopenable without tools, and should be deployed in sites frequented by injection drug users.

It should be noted that nobody is noticing any more of these annoyances now than they were five years ago. The San Francisco Chronicle is simply tossing Newsom a softball for his reelection campaign so that he can appear tough on crime for his base voters (as if that is going to be an issue this year). It’s not cost-effective to deploy the San Francisco police to deal with homelessness. It’s also not cost-effective for the city to make up for the abdication by the state and federal governments of their responsibility to deal with the mentally ill and drug abusers.

So we can either complain or attempt another approach.<\!s>*

Marc Salomon

Marc Salomon is a member of the San Francisco Green Party County Council.

Black and white and color

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One of the most exciting aspects of being a newspaper editor is recognizing a wave of activity that isn’t connected to government mind control or onslaughts of corporate-sponsored and mass-marketed art. This kind of spontaneous mass energy is happening via photography in San Francisco right now. August is known as a slow month, but the city’s galleries are alive with contemporary photos. Bill Daniel’s latest look at the US landscape is opening at RayKo Photo Center, the Daniel-influenced vagabond spirit Polaroid Kidd has his first Bay Area show at Needles and Pens, Greg Halpern’s moody views of Buffalo and Kelli Connell’s double-minted prints are up at SF Camerawork, and at City Hall — through the San Francisco Arts Commission Gallery — the work of 32 local photographers is on view.

Baptized in arguments regarding its viability as an art form, photography remains as contentious as it is expansive. Witness a veteran such as Duane Michals sharpening his claws on the megapopular likes of Cindy Sherman in last year’s rant-monograph Foto Follies: How Photography Lost Its Virginity on the Way to the Bank (Thames and Hudson). We live in an era when the ready availability of portraiture seems to have made its definition even more reductive; via MySpace and more explicit sites, people use cameras to readily package themselves as products. Yet when black-and-white and color and digital and film collide with unpredictable results, photo portraiture can be as varied and lively as the work you’ll find on these pages.

Thanks to fellow Guardian arts editor Kimberly Chun for suggesting, late in the selection process, a focus on portraiture. This decision necessarily narrowed the Bay Area photographers to choose from; there’s a wave of garden- and eco-driven work being done by Bill Basquin and others, while Dusty Lombardo, R.A. McBride, and Jackson Patterson are discovering tremendous depth in interiors. Thanks also to Basquin, Daniel, Glen Helfand, Chuck Mobley, Katie Kurtz, and Dave and Ray Potes for their suggestions.

Twelve years ago I interviewed therapist and author Walt Odets because he was bringing much-needed humanity to discussions of the AIDS crisis; to find out that he’s also a superb photographer whose subjects have included Jean Renoir and his wife, Dido, is a revelation. In distinctive ways, Vic Blue, Robert Gumpert, and Amanda Herman reveal what journalism usually ignores or renders shallow. The intimacy of Vala Cliffton’s photos makes one ponder her presence within the scenes she depicts. Matthias Geiger shows a city you might not have noticed even when it’s been in front of your face. Stan Banos has an eye for the many shades of gray within the multihued and the cuckoo. Job Piston is that rare Bay Area photographer whose work brandishes a sexual edge that isn’t obvious or predictable. Jim Goldberg’s urban work has been canonically influential since the publication of Rich and Poor (Random House, 1985) and Raised by Wolves (Scalo, 1995). Photography is just one aspect of Désirée Arlette Holman’s hand-fashioned fantasy world, a place that looks like a wicked satire of our own.

If you’d like to see more about some of these artists, go to www.sfbg.com/blogs/pixel_vision. (Johnny Ray Huston)

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Stan Banos

NAME Stan Banos

TITLE The Marine

THE STORY "This photo was taken in San Francisco during Fleet Week in ’04."

INSPIRATION "I’ve always had a vague obsession with time and place, and the camera is the best-suited instrument to record such transient moments (particularly when you can’t draw). I generally try to incorporate whatever signs of irony life can offer within a rectangle."

FAVORITE PHOTOGRAPHERS "I have more favorite photographers as an adult than I had favorite ballplayers as a kid: Bruce Davidson, Josef Koudelka, Diane Arbus, Garry Winogrand, William Eggleston, Stephen Shore, Carl de Keyzer, James Nachtwey, Cheryl Richards, Henry Wessel, Elliott Erwitt, Martin Parr, Lee Friedlander … the list is endless."

SHOW "Our World," at SF Arts Commission Gallery’s City Hall space, through Sept. 21.

WEB SITE www.reciprocity-failure.com

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Victor J. Blue

NAME Victor J. Blue

TITLE Honduran immigrants, Detention Center Tapachula Mexico

THE STORY "I went to the Guatemala-Mexico border to photograph immigration there. These guys had been caught trying to ride the freight train to the United States. We only had a few minutes to take pictures inside. They were on a bus back to Tegucigalpa within a day, probably just to try again."

FAVORITE MONOGRAPHS The Mennonites by Larry Towell (Phaidon, 2000), Exploding into Life by Eugene Richards and Dorothy Lynch (Aperture, 1986), Kosovo 1999–2000: Flight of Reason by Paolo Pellegrin and Tim Judah (Trolley, 2002), Under a Grudging Sun: Photographs from Haiti Libere 1986–1988 by Alex Webb (Thames and Hudson, 1989).

WHAT ARE YOU SHOOTING NOW? "The cost of the wars in Iraq and Afghanistan for the people of San Joaquin County."

WEB SITES www.victorjblue.com, online.recordnet.com/projects/iraq/Jose/index.html

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Vala Cliffton

NAME Vala Cliffton

TITLE Unicorn

THE STORY "Unicorn is a portrait of my niece and my brother after their trip to Hawaii. My niece is in love with Hawaii and could not seem to detach herself from her scuba gear that afternoon. My brother was trying to catch a nap before dinner. The combination of elements in this unposed portrait captures an essential and intriguing aspect of their father-daughter relationship."

INSPIRATIONS "The Family of Man [Harry N. Abrams] was the first photography book I can remember picking up and being interested in. Photography was always a part of our family life. One of my projects while at the San Francisco Art Institute was to print the black-and-white snapshots taken of the family over the years."

WHAT ARE YOU SHOOTING NOW? "I have spent the past couple or years working as a filmmaker and producing music videos, some of which I have put up on YouTube at youtube.com/alavala11."

SHOW "Our World," at SF Arts Commision Gallery’s City Hall space, through Sept. 21.

WEB SITE alavala.com

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Matthias Geiger

NAME Matthias Geiger

TITLE Train

THE STORY Train is taken from Geiger’s "Tide" series, which he describes as "an examination of human presence" in "places of transit and momentary rest…. The technique of layering still images allows past, present, and future moments to appear simultaneously, reflecting the notion that each moment in time is a construct of our memories, our presence, and our projections."

INSPIRATIONS "Direct physical experience such as being outdoors, dance, and meditation, as well as readings on metaphysics."

WHAT ARE YOU SHOOTING NOW? A series on utopian subcultures.

SHOW "Matthias Geiger: Tide." Sept. 6–Oct. 20. SF Camerawork, 657 Mission, second floor, SF. (415) 512-2020, www.sfcamerawork.org

WEB SITE www.matthiasgeiger.com

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Robert Gumpert

NAME Robert Gumpert

TITLE Untitled

THE STORY "For the past 13 years I’ve been doing an off-and-on documentary project called ‘Lost Promise: The Criminal Justice System.’ This image was done in August 2006 while I was documenting the closing of San Francisco County Jail No. 3. Built in 1934 and beset by a number of serious issues and several lawsuits ordering its closure, the jail was finally closed in August 2006, when inmates were moved to County Jail No. 5, built on land adjacent to the old jail."

FAVORITE PHOTOGRAPHERS Don McCullin, Lewis Hine, August Sander, Leonard Freed, Gilles Peres, and Philip Jones Griffith.

WEB SITE www.robertgumpert.com

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Amanda Herman

NAME Amanda Herman

TITLE Untitled

THE STORY The image is taken from Herman’s most recent work, the short film Lost Island, which looks at the impact of Hurricane Katrina on one large family two years after the storm forced them from their home in Chalmette, La. Herman met the Morris family in Oakland while doing free family portraits for survivors at a relief day in October 2005, one month after Katrina drove them from their homes, and, she writes, "over time, I became interested in exploring the intricacies of one family’s experience with the disaster." Donations and income from the sale of the Lost Island DVD will go into a family fund to assist the Morrises as they rebuild their lives in Oakland.

FAVORITE PHOTOGRAPHERS Seydou Keita, Allen Sekula, Susan Meiselas, Jeff Wall, Wing Young Huie, Wendy Ewald, Jessica Ingram, Eric Gottesman, and others.

SHOW "Inchoate," through Aug. 11. Patricia Sweetow Gallery, 77 Geary, mezzanine, SF. (415) 788-5126, www.patriciasweetowgallery.com

WEB SITE www.amandaherman.com

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Désirée Arlette Holman

NAME Désirée Arlette Holman

TITLE Something Ain’t Right

THE STORY "This image is from a larger series of video and photo work depicting actors wearing crude, handmade (by me) chimp costumes. Something Ain’t Right was inspired by smoking chimps in zoos in South Africa and China. One zookeeper claimed that the chimps were smoking because they are frustrated. Could captivity make a chimp neurotic and lead it to smoke? Others claimed that the chimps were imitating tourists, recalling the cliché ‘Monkey see, monkey do.’ "

INSPIRATION "I am inspired by psychology, popular culture, figurative sculptures (including toys), art, and various types of fantasy and fiction making. I capitalize on the potential to create fantasy from realistic imagery through the use of the camera."

FAVORITE PHOTOGRAPHERS Currently include Tracey Moffatt, Liza May Post, and Suzy Poling.

SHOWS "CCA: 100 Years in the Making," at the Oakland Museum of Art, and a solo show at San Francisco’s Silverman Gallery. Both open in October.

WEB SITE www.desireeholman.com

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Job Piston

NAME Job Piston

TITLE A Year Later

THE STORY "I was making portraits of young Hollywood and became interested in deconstructing glamour. This is a good friend of mine who was sent away to a facility for a long while. I took this picture the first time I visited him. Today popular figures openly go to rehab; it too has become glamorous."

INSPIRATION "Complicated personalities, intimacy in public spaces, secrets, the figure, and the fountain of youth."

SHOW "Our World," at SF Arts Commission Gallery’s City Hall space, through Sept. 21; "Evidence of Things Unseen," Peninsula Museum of Art in Belmont, through Oct. 21; solo show at Silverman Gallery in San Francisco in October.

WEB SITES www.jobpiston.com, book-of-job.blogspot.com

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Walt Odets

NAME Walt Odets

TITLE Greg Hoffspiegel, Palo Alto, California, 2007

THE STORY "Because it is so instantaneous, there is much chance in photography. This photograph seems to me about the gaze and emotion of the three figures, some combination of attention, reflection, loss, and pathos, as well as the visual organization."

INSPIRATION "I have taken pictures since I was 16. If I can use the camera in a way that forces deconstruction of what we normally see but do not observe, then I feel I have accomplished something."

FAVORITE PHOTOGRAPHERS "Henri Cartier-Bresson, of course, and Ed Ruscha and Lee Friedlander, for their elegance and form, intellect, and relentless literal rendering, respectively."

SHOW An October 2007 three-person show at SF Camerawork, devoted to winners of the James D. Phelan Award for photography.

WEB SITE www.waltodets.com/photo

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Jim Goldberg

NAME Jim Goldberg

TITLE Untitled

PHOTO COURTESY OF STEPHEN WIRTZ GALLERY

THE STORY The image is drawn from "The New Europeans," a project Goldberg started around the time of the 2004 Summer Olympics in Athens. The series focuses on the journeys of refugees and immigrants from war-torn or economically devastated homelands in Iraq, Somalia, Sudan, Palestine, Afghanistan, the Philippines, and elsewhere to settle in Europe, specifically Greece and Ukraine. In June, Foundation Henri Cartier-Bresson in Paris presented Goldberg with the HCB Award so he could travel to his subjects’ countries of origin and tell the complete stories of their migration.

SHOW "Jim Goldberg: New Work." Oct. 3–Nov. 10. Reception Oct. 4, 5:30–7:30 p.m. Stephen Wirtz Gallery, 49 Geary, third floor, SF. (415) 433-6879, wirtzgallery.com

Still censored: the story and debate on the impacts of media consolidation in the Bay Area

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By Bruce B. Brugmann

For years, the Guardian has been publishing on its front page the “Project Censored” story, a list and story of the most “censored” stories of the past year as compiled by Project Censored, a respected 30-year-old media research project at Sonoma State University. We always include our local version of major stories the local mainstream media miss and note that they always “censor” the big local stories involving their own papers. And of course the mainstream press makes the story even better by “censoring” the Project Censored story every year.

The latest “censored” story, as attentive readers of the Bruce blog know, is
the story of the terrible impact of media consolidation in the Bay Area and the documents of secrecy, stonewalling, and collaboration that the nation’s biggest chains are using to censor and obfuscate the story.

This morning April l6, on the widely read Romenesko media newsletter on the Poynter Institute website,
an important story was posted that made the censorship point in 96 point Garamond Bold.
It was headlined “The Crisis of Consolidation in Bay Area News Media” and laid out in a telling argument that the Hearst/Singleton consolidation would mean that “coverage of virtually every level of government, education, sports, criminal justice, arts and business would be in the hands of one organization with a single set of principles, perspectives and purposes. This is the situation one expects in a totalitarian regime, not in pluralistic America.”

This is the kind of commentary that ought be a regular feature of every daily paper and major broadcast station in the Bay Area. The Hearst/Singleton deal ought to be a major running story in the local media. How many regional stories will be covered by one reporter? Will there be real Washington and Sacramento bureaus? Will there be a joint line on editorial policy and endorsements? Will the same candidates get the endorsements for president, U.S. Senate, the House, and other state and local political offices? How much will local news suffer? Will one critic cover a show or opening for all the papers? How many sports writers will be covering the Giants, Athletics, and 49ers? Who will cover all those local meetings? How can any of the papers be real local watchdogs? There ought to be informed discourse and debate on such serious impact questions, but there isn’t and there most likely won’t be in the monopolizing press.

Instead, the crisis commentary was written by the former political editor of the San Jose Mercury News, Philip J. Trounstine. He wrote the commentary as a consultant to plaintiff Clint Reilly in his antitrust trial in federal court aimed at blocking the monopoly deal. Trounstine was also the former communications director for Gov. Gray Davis and is the founder and director of the Survey and Policy Institute at San Jose State University.

So there you have it: the Hearst and Singleton press that owns all the daily papers from Vallejo to Santa Cruz refuse to do the story on the impact of the deal. Citizen Reilly has to sue to get the story out and bring in Trounstine to do an analysis of the impact. The analysis gets out only by being posted on the Grade the News.com, a media watchdog site, and picked up by Romenesko and the Bruce blog.

Trounstine ends with a crucial point: “The tragedy for the public interest is that instead of reallocating resources to increased local coverage, newspapers across the country and throughout the region are instead using the economic gains made from consolidation for short-term gains in profitability.

“With no meaningful daily competition on significant regional and statewide stories, there is no pressure on news operations to intensify coverage of any issue or event. Just the opposite in fact: consolidation ushers in the decline in the range and depth of information that citizens need to make intelligent civic decisions.”

Now, out of embarrassment or principle, will any Hearst or Singleton or Gannett or Stephens paper anywhere in the U.S. run Trounstine or do a comparable story on the Hearst/Single consolidation and its toxic impact on one of the most liberal and civilized regions in the world.? Let me know. Stay alert. B3

A hammer, a pizza guy, and $60

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› gwschulz@sfbg.com

When Darius Simms walked into Department 25 at the Hall of Justice late last year, dressed in the orange cottons inmates wear at the county’s downtown jail, he received some good news. He was being released.

The bad news was that he was still going to be punished for something a judge said she was pretty sure he didn’t do.

Simms had been on probation when he was arrested for allegedly bashing in the head of a pizza delivery driver for $60. But the District Attorney’s Office couldn’t make a criminal case against him, and the charges of assault, attempted murder, and robbery were dropped.

Still, on the advice of his lawyer, Simms accepted a deal that extended his probation until 2009 just to escape the hoosegow — essentially on the grounds that the normal rules of the criminal justice system don’t count for those on probation, innocent or not.

The way California’s probation system works, it doesn’t matter if law enforcement proves an ex-con committed a crime. Just getting arrested can mean trouble.

It is, one defense lawyer told us, a "dirty little secret" of criminal prosecutions in the state.

The prosecutors may not have a case to take to a jury, in which a defendant is innocent until proved guilty and the evidence has to be proved beyond a reasonable doubt. But they can send people on probation, such as Simms, to jail anyway, and that requires only a hearing before a judge.

"It’s not 12 people agreeing. It’s one," Robert Dunlap, the defense attorney for Simms, told the Guardian. "And it’s not beyond a reasonable doubt, it’s by a preponderance of the evidence. It’s a lower standard of proof."

Deputy district attorney Jim Thompson insisted that Simms was guilty even though he lacked proof, and he wanted to railroad the 26-year-old Western Addition native into more jail time.

Sitting behind the prosecutor that day in the gallery of Department 25 was a man named Tony Portillo. If Simms’s defense attorney hadn’t negotiated an extended probation for his client, Portillo would likely have testified that Simms pounded the pizza driver with what Portillo says was a wood-handled, iron-head hammer — the same testimony Portillo gave during a preliminary hearing for Simms in September 2006.

Portillo was the people’s main witness, an auto mechanic who the DA’s Office had originally believed would help keep Simms behind bars for what Thompson described as a "heinous" crime.

But case number 194817 reveals just how quickly the roles can alternate in Superior Court and how the probation status of a defendant can make a mess of the legal system.

FOR THE PEOPLE


For several months Portillo had been restoring a 1973 Dodge Challenger for his pal Apollo Pacheco’s girlfriend. The car was kept in the garage of Pacheco’s home, on 47th Avenue in the Sunset.

The 28-year-old Portillo has an unassuming stature at two inches shy of six feet and boasts an "SF" tattoo on his right arm. On April 4, 2006, he was in Pacheco’s garage working on the Challenger’s floorboards, wheelhouse, and one of the quarter panels. Portillo says he had seen Simms around the neighborhood, and the day before, Simms stopped by to ask if Portillo was willing to sell his car, which was sitting in Pacheco’s driveway. "He seemed like a fine individual," Portillo would later testify.

Simms is heavyset at six-foot-one and at the time had a short moustache and beard. He’s no stranger to the Hall of Justice. In fact, the very law enforcement office that would later try to pin him for attempted murder had sent him to the Sunset in the first place. He was supposed to be living quietly with his mother by the beach in a witness protection program, poised to testify against a man who’d allegedly shot him five times.

When the Guardian reached Portillo in person, he declined to speak on the record, but he did tell police inspectors that Simms lied at the time of their meeting by telling him he was 22. Simms, who is now 27, was also on probation for a handful of robbery and battery cases stemming from 2001.

The sale of Portillo’s junker never happened, but Simms returned the next day, and Portillo asked for help removing the Challenger’s rear window. "He was there basically for company," Portillo told the court. Throughout that second day the two talked over cans of Olde English, at which point the story began to turn.

According to court records, at some time during the afternoon, Portillo slunk into the house and stole from the fridge a rum drink prepared by Pacheco’s roommate, Ted Langlais. Langlais discovered the theft later, and the two would clash over it.

After sharing the rum, Portillo realized he needed to run to the Kragen Auto Parts store on Taraval and buy a new piece for his welder. On his way out, he asked Langlais for money, who testified that he said no.

Two young women who were visiting stayed behind at Pacheco’s house, where Langlais was painting their nails. (One of the two girls is a witness in the case, but we are concealing her name because she’s a minor. Portillo testified he believed she was Simms’s girlfriend.)

Simms, Portillo, and the girl congregated back at the garage around 7 or 8 p.m. Simms and the girl wanted to order pizza. Portillo promised to pitch in five dollars. After a period during which Portillo stated he was gathering his tools and cleaning up, the pizza arrived.

"I was washing my hands to get ready to eat," Portillo later testified. "I heard a knock on the garage. The garage was slightly open. I looked up. I saw [Simms]. I heard a thump. I looked over. I saw him striking the pizza delivery person with the blunt object."

The pizza guy, Marco Maluf, was screaming, and Simms was telling him to shut up, Portillo told inspectors the night it happened. Maluf had $60 cash on him, which he would later testify was taken.

Simms and his friend left on foot down 47th Avenue. Portillo was in shock and didn’t know what to do. He reported that he collected his tools and threw them into his car.

"Ted came down, and he said, ‘Dude, why is this guy bleeding all over my floor?’ " Portillo told the inspectors. "And I go, ‘I don’t know, Ted. Ask, ask them,’ " pointing toward the couple walking away. He didn’t call 911 but drove back toward his home in the Portola District. He called a childhood friend, a firefighter at Station 42 on San Bruno Avenue named Michael Guajardo, to ask for help. Guajardo encouraged him to go to the Taraval police station, where inspectors recorded Portillo’s version of the story.

He told the inspectors Simms called him afterward to tell him about the $60. "Dude, don’t call me again, dude," Portillo said he told Simms. "We’re done. Don’t ever — we’re done. You fucked up."

Five days later Simms was arrested for the attack. He told police interrogators that he wasn’t in the garage when the pizza arrived. Portillo, he said then, had given him and the remaining girl a ride to his house up the street. But Simms eventually admitted to police he’d returned to the garage with the girl. The girl ultimately admitted the same thing during her interview with the inspectors.

This story is far from complete, however. While Simms waited in jail, defense attorney Robert Dunlap pursued a different narrative for what happened on April 4.

FOR THE DEFENSE


Simms says he never knew Portillo as much by his birth name as he did by a nickname Portillo had given himself: Capone. He says Portillo introduced him to Langlais as a "friend from high school."

"He called me his window man," Simms told the Guardian. Simms had never taken a window out in his life, he admitted, nor had he known Portillo extensively, but he played along. "I said, ‘Cool, it’s a place to hang and drink and everything.’ "

Portillo denied in court that he ever went by the name Capone. But his close friend, Guajardo, testified during a September 2006 preliminary hearing that in recent months Portillo had, in fact, been calling himself by that name. Simms was calling Portillo by that name to police interrogators five days after Maluf was beaten. So was the girl who remained at the home that night.

Simms never testified in court, because the primary charges against him were dropped. But if Simms had testified before a jury, he likely would have told them he and Portillo had dropped by the home of Portillo’s grandfather to get some money for crack during their trip to the Kragen Auto Parts store. That’s how Simms says he knew Portillo’s grandfather had a breathing problem.

Guajardo also told the court that Portillo’s grandfather relied on a breathing apparatus for oxygen. He noted that his fire station had made medical calls to the man’s Portola home to assist him. But when defense attorney Dunlap asked Portillo about it, he denied to the court that his grandfather had any breathing problem.

Portillo also couldn’t clearly recall for the court if he’d ever been convicted of a felony. But in 2000, records show, police did arrest Portillo for cocaine and marijuana possession, and at the time, he had a suspended driver’s license. The day before Maluf was attacked, Portillo had also received a ticket for running a stop sign while taking Simms for a spin in his car along the Sunset’s Great Highway. At that time, he had a 30-day restricted license, the result of a DUI case.

After returning from the trip to Kragen and drinking a couple more beers, Portillo took Simms and the girl to Simms’s house for a change of clothes, and Portillo left alone, Simms told us.

Langlais was livid by then, having realized Portillo took his rum from the fridge. On Portillo’s way back to the house, he and Langlais argued over the phone. When he arrived, Langlais was armed with a baseball bat, according to Portillo’s court statements.

"I called Tony," Langlais testified last September, "and basically was just yelling at him on the phone for a little while…. He apologized profusely, broke down, and started crying, and I just didn’t expect that."

"I go, ‘Hey, look,’ " Portillo told the court. "’I’m not here to fight with you over this rum.’ … And he was pretty mad, so I got a little emotional."

Much of April 4 seemed charged with anxiety. Portillo by then sounded drunk, according to the testimony of Pacheco, who also argued on the phone with Portillo about the stolen rum.

The rum fiasco was resolved delicately. Simms and the girl returned to the garage with more beers. They ordered pizza. Portillo promised to pitch in. Simms says that he stepped outside for fresh air, his head spinning from the drink. The pizza man arrived.

"As soon as I step outside, I hear, ‘Uh! Uh!’ He just cavin’ this guy’s head in," Simms says. "Kickin’ him. Hittin’ him with the hammer. Just blowin’ him out of the water with it. This guy is cryin’, sayin’ some shit in some other language [Portuguese]. And [Portillo’s] yellin’, kickin’ him, sayin’, ‘Shut up! Shut the fuck up now!’ Ted comes down. He looks. ‘What the fuck is goin’ on?’ [Portillo’s], like, ‘We gotta get up outta here. I’m goin’ to Mexico.’ "

Simms says it was the start of the month and he had just cashed a Supplemental Security Income check. He didn’t need to rob the pizza man. He says police arrested him because of his background and because he lied to them about being in the garage — "I just panicked. I know how it is. I got priors."

He didn’t bother with a coat of sugar.

"The guy was small. I’m a big boy. I don’t need no fuckin’ hammer to get him. I’m just sayin’. I’m 300 pounds. If I would have used that hammer on that man, he would have been dead."

The pizza driver survived after being transferred to San Francisco General Hospital but suffered a skull fracture and lacerations that took 30 staples in his head to repair. He still gets headaches and can’t remember anything about that night.

STANDARDS OF PROOF


Nearly two decades ago the California Supreme Court declared that a lower standard of proof was sufficient to put suspects behind bars for vioutf8g the terms of their probation.

A judge convicted Juan Carlos Rodriguez of vioutf8g his probation in 1988 after a convenience store employee in King City testified that Rodriguez had shoplifted several pairs of utility gloves. The judge relied on a diluted standard of proof known as "a preponderance of the evidence" to revoke his probation rather than the "beyond a reasonable doubt" required from juries at full-blown criminal trials.

Rodriguez appealed and won. But prosecutors took the case to the state’s highest court, and in 1990 the justices decided that state case law already permitted a lower standard of proof known as "clear and convincing evidence." In effect, the court ruled, the state could send a person on probation back to jail on as little proof as it wanted. Besides, the justices argued, a higher standard amounted to retrying a criminal who’d already been granted the court’s grace and would unnecessarily burden the system.

Coincidentally, former San Francisco DA Arlo Smith filed a friend of the court brief in People v. Rodriguez supporting the state’s position.

But at least one concurring judge worried ominously that with a lower threshold for alleged probation violations, "an unfortunate incentive might arise to use the revocation hearing as a substitute for a criminal prosecution."

Former supervisor Matt Gonzalez, who worked as a public defender prior to his time at City Hall, says that’s exactly what’s happened. He recalls a case that surfaced years after Rodriguez involving a woman named Mary Elizabeth Alcoser. Although she had a long history of trouble ranging from severe narcotics abuse to prostitution dating back to the 1970s, according to criminal records, after police charged her with assault in a 1997 case, she was fully acquitted by a jury, citing self-defense.

"Even though she was acquitted," Gonzalez said, "the judge sent her to prison on a probation violation, because he determined that by a lower standard of proof, she was guilty…. The real question is, who benefits when you don’t have the higher standard of proof employed?"

In another case, Gonzalez represented a Hispanic man facing robbery charges following an incident at a Mission bar. A witness described the assailant during testimony as African American. But the judge sent Gonzalez’s client to prison on a probation violation anyway, claiming that a piece of jewelry snatched during the encounter and later found on the suspect implicated him, even though he’d never even been charged with receiving stolen property.

Gonzalez calls it the "innuendo of a case unproven."

Speaking in general terms, longtime local defense attorney Don Bergerson said it’s far from uncommon for the DA’s Office to use an alleged probation violation as leverage for getting tough jail sentences when a case otherwise looks lifeless.

"To hide behind the fact that the standard of proof required to revoke probation is ostensibly less seems to me to be morally and practically dishonest," Bergerson said, "even if one can justify it semantically."

When we reached deputy district attorney Thompson, he refused to talk about the Simms case. But spokesperson Debbie Mesloh said outright that the DA’s Office was seeking to take advantage of the lower standard of proof and added that there was at least enough evidence to hold Simms for trial.

"The charges in this case were dismissed because we await crucial DNA evidence that was not available at the time that the defendant was scheduled to go to trial," Mesloh wrote in a January e-mail. "We currently await the findings of this evidence."

Her office confirmed in a follow-up e-mail, however, that the DNA analysis has so far gone nowhere. To this day, no reasonably good physical evidence from the case has been identified.

FOR THE RECORD


Somebody almost killed Maluf, and the two most likely suspects are Portillo and Simms. Neither is a Boy Scout, and both have an obvious incentive to finger the other.

That’s exactly why courts require strong evidence — enough to convince a jury beyond a reasonable doubt — before sending someone to prison. Using shortcuts such as probation revocations leads to slipshod prosecutions and wrongful convictions.

Strong evidence standards are particularly important for a case as muddled as this one.

Portillo told the court he doesn’t do drugs, let alone smoke crack.

While he’s "got no love for Tony" over the stolen rum, Langlais told us he’s certain he heard Simms yelling at Maluf, and he saw Simms standing over him when he entered the garage from upstairs. He’s "enraged" that San Francisco’s "revolving-door" criminal justice system put Simms back on the street.

But defense attorney Dunlap said Portillo’s testimony, which the lawyer described as "inconsistent," wasn’t nearly enough to prove the assault, robbery, and attempted murder charges.

"When Jim Thompson got the case assigned to him upstairs," Dunlap said, "I think he took an honest look at it and realized he was going to have a hard time convincing a jury beyond a reasonable doubt that [Simms] was guilty of the crime. Because [Simms] was on probation, [Thompson] opted to dismiss the trial and proceed on a motion to revoke instead…. It was more or less a practical way to try and salvage something from a sinking ship."

After reluctantly accepting the extended probation deal for Simms at the hearing Dec. 13, 2006, Thompson still complained that Simms deserved more jail time.

"Your honor, this disposition is over the people’s strenuous objection," he indignantly informed Judge Charlotte Woolard. "The defendant has a lengthy criminal history…. And I do believe there is sufficient evidence that the defendant was the culprit in this matter."

But Woolard had a different opinion, based on a reading of Portillo’s testimony from the preliminary hearing, a telling example of how difficult it will always be to turn a real-world criminal prosecution into a fictionalized television drama and why the resolution of this case might actually be the worst possible outcome.

"The people’s main witness," she said, "in this court’s opinion is quite likely the person that committed this offense." *

Editor’s Notes

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› tredmond@sfbg.com

I made it through the week without anyone calling to complain about my analysis of the mayor’s race, so maybe for once I got it right: unless Gavin Newsom drops out or a third strike drops and it’s pretty bad, we already know what things are going to look like in the fall.

So we might as well get on with it: Matt Gonzalez and Ross Mirkarimi should get together and talk it out, then one of them should just go ahead and announce.

For a long list of reasons, there has to be a real mayor’s race this fall — and Tony Hall plus a few nutcases against Mayor Newsom doesn’t count. The progressives need someone to rally around, to get the old troops out and in the streets and some new ones trained and energized. We need to keep Newsom on the defensive, to keep our issues out there, to hold him accountable not just to his donors but to the rest of the city.

Never discount what a good challenge can do: there are a lot of reasons why Sup. Bevan Dufty has moved a few steps to the left over the past few months, but one of them is absolutely the fact that he had a progressive candidate running against him in the fall.

Besides, I actually think Newsom can be defeated.

Just look at his record. Since he hasn’t accomplished much of anything, he’s vulnerable on almost everything. Other than same-sex marriage, his major legacy at this point seems to be trying to hand out the city’s information technology infrastructure to Google and EarthLink. Go team.

And the city’s two leading Greens both have a distinct advantage at this point — nobody is going to accuse them of jumping into the race to take advantage of Newsom’s personal problems. Long before city hall got all steamed up, Mirkarimi and Gonzalez were talking about running — on the issues.

Gonzalez can raise a lot of money. Mirkarimi has done something few progressives ever pull off: turning public safety into one of our top issues. Like almost all candidates, they both have strengths and weaknesses, but in the end, it looks like one of them is going to be our contender this fall, and that’s not at all a bad thing.

We went after District Attorney Kamala Harris a couple weeks ago when she tried to make some changes in the pretrial diversion program that would have cut back on its effectiveness. Harris did the right thing; she and Public Defender Jeff Adachi reached an agreement that preserved the best of the program, which tries to steer first-time misdemeanor offenders into counseling and out of the criminal justice system.

Harris didn’t have to do that; the program is entirely under her control, and she could have told Adachi (and us) to take a hike and done it her way. But she showed that she’s a reasonable DA who is willing to listen.

Now, however, the thugs at the Police Officers Association are attacking her for her willingness to include misdemeanor noninjury assaults on cops as crimes that are eligible for diversion. (This is typically stuff like someone spitting at an officer or brushing against him or her during an arrest. We’re not talking about serious assaults here.)

Harris is standing up to the POA, but the rest of the city, including the mayor, needs to get behind her. *

The numbers game

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By G.W. Schulz

The police department sent out a press release earlier today complaining about an Examiner article from last Friday highlighting the city’s dismal homicide arrest rate. The department’s press office wants you to know that the article appears to have relied exclusively on statistics from a state criminal justice Web site.

First of all, here’s what they had to say:

“The statistics as presented in the article did not include many homicide arrests. For example, they do not reflect the recently much publicized federal gang indictments for murder … The department does not believe the statistics as presented in the article were intentionally misleading, but we believe that it is important to provide accurate data to set the record straight. The department has asked the Examiner to correct these errors to ensure that the public’s perception of our efforts in violence reduction [are] not undermined.”

Well isn’t that sweet. The department just wants clean numbers. That’s all. The problem is, their numbers don’t inspire much faith.

Leave pretrial diversion alone

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EDITORIAL The San Francisco Pretrial Diversion Project is one of the most successful programs in the city’s criminal justice system. The project works with first-time misdemeanor offenders — people who have committed fairly minor crimes — and gives them the chance to enter a treatment program, avoid jail time, and ultimately clear their records. Over the past three years almost 94 percent of the program’s graduates have stayed out of the criminal justice system — a phenomenal track record.

And yet District Attorney Kamala Harris, who by state law has ultimate control over the program, wants to eliminate the option for a significant number of people. Under her plan first-time battery offenders will no longer be eligible (and remember, battery in this case doesn’t mean aggravated assault; misdemeanor battery is any kind of unwanted touching). Neither will people accused of child endangerment, criminal threats, or indecent exposure.

It’s not that these crimes are always trivial, but a lot of them don’t merit jail time. Jeff Adachi, the city’s public defender, has a real-life example: a middle-aged woman with no prior criminal history left her five-year-old foster child in the car while she ran into a hospital to pick up a medical prescription. Then she passed out in the hospital. When she regained consciousness, she was charged with child endangerment. She would have automatically lost her child if convicted of the crime. Instead, she was able to participate in diversion, avoiding a criminal conviction and its devastating consequences.

The program also saves the city money — potentially big money. More than 500 cases a year go to diversion, and taking any one of those cases to trial could cost the public as much as $100,000. Adachi estimates that the number of offenders eligible for diversion might fall by as much as 25 percent, meaning 125 more needless cases clogging the courts, using up public time and resources — and quite possibly adding to the county jail population.

Harris argues that some violent offenders are getting diversion, but the program has been operating under the same rules for the past 20 years, and its successes have vastly overshadowed any problems.

More important, at a time when even the Republican governor of California seems to realize that the system of locking people away for ever-longer sentences isn’t working, this is a bad statement for a San Francisco district attorney to make. Harris ought to back down and leave the diversion program the way it is. *

Prosecute election theft

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EDITORIAL There’s no doubt at all that a group of downtown businesses operating through a series of supposedly independent political committees organized in part by attorney Jim Sutton have used every tool at their disposal to influence the outcome of the District 6 supervisorial election. And there’s no doubt that what these folks have done violates at least the spirit of the city’s election laws, which were designed to offer, as much as legally possible, a level playing field for candidates and full disclosure of campaign expenses.
There’s also no doubt that Sutton has been willing to bend and at times break the rules: in 2002 his law firm was fined $240,000 — the largest penalty of its kind in city history — for failing to disclose late contributions from Pacific Gas and Electric Co. to a campaign to defeat a public power initiative.
At some point this sort of conduct rises to the level of a crime — and at least some respectable, credible activists and observers think the attacks on Sup. Chris Daly have reached that level. In a letter to the Guardian, published on page 8, former ethics commissioner Joe Lynn argues that Sutton and his allies are guilty of attempting to steal an election.
There’s no crime in the books called “Grand Theft, Election,” although there probably should be. But Lynn says that what’s happened here — unregulated committees raising and spending tens of thousands of dollars and not fully disclosing it until late in the cycle — is not merely sleazy and unethical but criminal.
We’re always nervous about bringing the criminal justice system into political disputes (we still remember how then-mayor Art Agnos pushed the district attorney into conducting a witch-hunt investigation into the opponents of a downtown ballpark ballot measure). But we’re also sick of seeing the likes of Sutton, Don Fisher, and SFSOS operate with virtual impunity when what they are doing comes very, very close to a conspiracy to subvert local election laws. The Ethics Commission needs to conduct a full investigation here, but that body can impose only civil penalties, which means cash fines — and for billionaire Fisher, whose money is behind a lot of these shenanigans, a stiff fine is just the cost of doing business.
District Attorney Kamala Harris ought to look into this. The problem is that Sutton was her lawyer in a heated campaign in 2003 during which her opponent, Terence Hallinan, raised similar charges. So Harris is conflicted; the best solution would be to appoint outside counsel — a special prosecutor, to use the Washington terminology — to investigate whether Sutton, Fisher, SFSOS, or anyone else ought to face criminal prosecution. The sooner that process gets started, the better. SFBG

A real war on crime

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OPINION Once again, with their backs against the wall, Republicans are attempting to stave off political defeat in November by playing to Americans’ fears about safety and security. Central to the conservative playbook for years has been the lie that progressives cannot keep our communities safe.
The reality is that the current, shortsighted approach to public safety, which touts punishment without rehabilitation, has been a failure. One of the starkest examples is the crisis in California’s prison and parole system — and every day that crisis comes home to San Francisco. Thousands of people are being released from behind bars with no plans and few skills or opportunities. More than 1,500 parolees are living in San Francisco at any given time, and thousands more are being released from county jail every year. Of the estimated 125,000 California prisoners who will be released this year, three out of four will end up back in prison by 2009. California has the highest recidivism rate in the country.
Behind every rearrest is a new crime, often with a new victim. Taxpayers also foot the bill — to the tune of more than $34,000 a year for each person who ends up back in prison.
It’s time for a change. We can no longer accept the fact that three out of four former prisoners will be back behind bars within three years. In this progressive city, we are committed to working together to break that cycle of recidivism by channeling former prisoners into productive lives. These programs must target the crucial process of what’s called “reentry,” the release of individuals from state prison or county jails back into their families and neighborhoods.
Two weeks ago, more than 200 reentry experts and service providers, along with government and criminal justice agencies, gathered for the city’s first-ever Reentry Summit. This past year, Supervisor Ross Mirkarimi sponsored a $1.2 million budget allocation to support new reentry programs. We’ve also spearheaded the San Francisco Reentry Coordinating Council, bringing together members from the business sector, labor, key city agencies, the clergy, and community organizations.
Members of the council have pioneered concrete reentry programs that are delivering results. District Attorney Kamala Harris has created a new accountability and workforce reentry initiative for drug offenders called Back on Track. Public Defender Jeff Adachi’s Clean Slate program provides community-education services and programs to clear criminal records to nearly 2,500 people a year. Sheriff Mike Hennessey is poised to open the Women’s Reentry Center, which will provide direct practical support services to women coming out of jail and prison.
While the city is more than doing its part at a local level to address this issue, we cannot do it alone. It is time for the state to own up to its responsibility for rehabilitating parolees and probationers and ensuring their successful return home. With a detailed, sustained, statewide reentry effort, we can guide former prisoners away from crime, reduce corrections costs, and keep our neighborhoods safe. SFBG
Kamala D. Harris, Jeff Adachi, Ross Mirkarimi, and Michael Hennessey
The writers are, respectively, the district attorney, public defender, District 5 supervisor, and sheriff of San Francisco.

The 2006 political candidates let loose with us

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(For our 2006 endorsements, click here.)

Guardian endorsement interviews are, well, unusual: We bring in candidates for office, set aside as much as an hour or more, and quiz them about local issues. Sometimes we argue; sometimes the candidates yell at us. Nobody pulls any punches. They are lively political debates, fascinating discussions of political policy – and high political theater.

For the first time this year, we’re posting digital versions of these interviews, so our readers can get front-row seats for all the action.

Participants include Editor and Publisher Bruce B. Brugmann, Executive Editor Tim Redmond, City Editor Steven T. Jones and reporters Sarah Phelan, G.W. Schulz and Amanda Witherell. If you’re confused about who’s speaking, here’s a handy guide: If the question is long and involved and about tax policy, it’s probably Tim. If it’s about an incumbent’s record or personal style, it’s probably Steve. George asks about criminal justice a lot; Sarah has a British accent. Everybody knows Bruce’s voice; you can’t miss it. Enjoy.

Sup. Sophie Maxwell
“Redevelopment in the Bay View is different.”
Listen to the Maxwell interview

Sup. Bevan Dufty
“I’m willing to piss people off on both sides of the [landlord-tenant] issue.”
Listen to the Dufty interview

Jaynry Mak, candidate for supervisor, District 4
“I would have to look at it.”
Listen to the Mak interview

Alix Rosenthal, candidate for supervisor, District 8
“We’re going to make it extremely expensive to build market-rate housing, in terms of the community benefits.”
Listen to the Rosenthal interview

Mauricio Vela, candidate for school board
“I probably would lean toward getting rid of [ROTC} … but it would be difficult.”
Listen to the Vela interview

Marie Harrison, candidate for supervisor, District 10
“The one thing I did learn from Willie Brown is that an MOU means I understand that you understand that I don’t have to do a damn thing on this paper.”
Listen to the Harrison interview

Starchild, candidate for supervisor, District 8, and Philip Berg, Libertarian candidate for Congress
“Nobody will invade Switzerland. Everyone has guns, M-16s and AK-47s and grenade launchers in their living rooms.”
Listen to the Starchild-Berg interview

Bruce Wolfe, candidate for community college board
“When you ask where the money is, you want a trail where the money is, the answer you get is it’s in a fungible account.”
Listen to the Wolfe interview

Kim-Shree Maufas, candidate for school board
“My kid was in JROTC …. I like the community, I liked the structure, I liked the commitment to family… I absolutely could not stand the military recruitment.”
Listen to part one of the Maufas interview
Listen to part two of the Maufas interview

Hydra Mendoza, candidate for school board
“There are some schools that are not serving our children.”
Listen to the Mendoza interview

Krissy Keefer, Green Party candidate for Congress
“I’m running against a ghost”
Listen to the Keefer interview

John Garamendi, candidate for lieutenant governor
“Phil Angeledes is wrong [about taxes] in the context of our time.”
Listen to the Garamendi interview

Dan Kelly, school board member
“I don’t think JROTC is a terrific program … it doesn’t teach leadership skills, it teaches follow-ship skills.”
Listen to the Kelly interview

Rob Black, candidate for supervisor, District 6
“Developers have fancy lawyers and they know how to get around things.”
Listen to the Black interview

Prop. A reality check

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› gwschulz@sfbg.com
The greatest irony of Proposition A’s failure last month seemed to be what took place just a few short weeks after the June 6 election.
Prop. A would have budgeted $30 million over the next three years to fund violence prevention services for at-risk populations, such as anxious teens looking for a break from order during the warm summer months. It was a clear response to the city’s headline-grabbing homicide rate, which has continued its stubborn ascent this year, making life politically difficult for Mayor Gavin Newsom, District Attorney Kamala Harris, and the Police Department.
But with the mayor and the cops in opposition, the measure lost by less than a single percentage point. And just two weeks later, 22-year-old Andrew Ele — known among his friends as DJ Domino — was shot and killed at a bus stop near 24th Street and Folsom. Ele was a regular teen-outreach volunteer at Coleman Advocates for Children and Youth, a San Francisco nonprofit that helped run the Prop. A campaign with Sup. Chris Daly.
On June 20, as Ele waited for a bus with his brother André, a gunman walked to the middle of 24th Street and fired several shots at each of them before escaping in a waiting white Mazda MPV, the Police Department told the Guardian. André survived with non-life-threatening injuries, but Andrew was pronounced dead at the hospital.
The police still don’t know who killed Andrew, but as we’ve reported previously, the department hasn’t had the best luck with recent homicide investigations. As of January 2006 police had made arrests in fewer than 20 percent of the homicide cases that were opened the previous year, and the district attorney’s office has managed to file charges in only a fraction of those cases.
BACK TO THE BUDGET
The day after the election, the San Francisco Chronicle framed Prop. A’s failure as a big political win for Newsom rather than what it really was: an enormous letdown for groups such as Coleman Advocates that are offering something other than increased law enforcement. The $30 million may not have immediately improved DJ Domino’s chances of remaining alive, but neither did $18 million the city paid police overtime last year prevent a Mission bus stop from being filled with bullet holes.
The issue of violence prevention is still alive, though, and it surfaced again during the recent budget negotiations.
The press release accompanying the mayor’s late-May budget proposal for the next fiscal year boasts that Newsom set aside $2.7 million for violence prevention and intervention, which he combines with $7 million the board supplemented for the current fiscal year. Featured more prominently in the press release is his bid for 250 new cops — and yet more money to pay them overtime.
However, the board’s budget committee, chaired by Daly, found $4 million more for violence prevention, including $1 million to save the Trauma Recovery Center, which assists victims of violent crime and was close to shutting down in November for lack of funds. Not to be outdone, the mayor unveiled “SF Safe Summer 2006” last week, just as the Guardian was putting together this story, which includes an expansion of the Community Response Network, a Police Department program.
The budgetary give-and-take reflects the city’s growing frustration over a homicide rate that has at times resulted in tense Police Commission meetings. Last month a meeting at the Ella Hill Hutch Community Center — held the day after Prop. A failed — was commandeered by Western Addition and Bayview–Hunters Point residents angry over a perceived failure by the city to respond to chronic gang and street violence. (Police Chief Heather Fong and Sup. Sophie Maxwell were literally shouted down at the meeting.)
The campaign for Prop. A forced the city to address its ongoing philosophical divide on how to face off against violence. More cops or more outreach? More patrols or more job training? More overtime or more murals?
“Their approach is suppression,” Coleman Advocates youth coordinator José Luis said of law enforcement. “They get rats; they send in informants. They don’t want to use prevention.”
Luis knew Ele for eight years and said the latter used to help provide security at drug- and alcohol-free hip-hop shows that cops in the Mission eventually stopped.
“[Ele] on countless occasions jumped into a brawl and stuck his neck out to stop it,” Luis said of the events.
Ele, who often performed at clubs in the city with the DJ troupe Urban Royalties, had big plans for his life. He was going to record an album at CELLspace in the Mission once construction of a recording studio was completed there. Then he’d planned to teach young people how to spin and record hip-hop themselves.
THE OTHER APPROACH
CELLspace is a 10,000 square foot warehouse on Bryant Street that has for the last several years served mostly as an outpost for industrial artists. Locals know it best for the acrylic bombs that cover its exterior honoring fallen graf heads and Mexican revolutionaries. The building hosted dance parties for teens in the ’90s, but they were eventually shut down by the city.
By 2003, however, CELLspace had recharged its outreach efforts, slowly building an administrative staff, acquiring grant money, and implementing new after-school programs. Staffers are working with ex–gang members and specifically targeting recent Latino immigrants, who are often recruited by gangs.
“Those of us who sort of grew up in street culture, we have more experience with what could work now,” said CELLspace’s 25-year-old executive director, Zoe Garvin, who was born and raised in the Mission.
The place is brimming with ideas. There’s talk of outfitting a low-rider car with a biofuel engine and solar-powered hydraulic suspension. Staffers are building low-rider bikes and collaborating with other Mission-based groups to teach kids screen printing and break dancing. They even have a class for skaters, but the ramps that quietly appeared a couple of months ago at the Mission Flea Market, across Florida Street on the west side of the warehouse, will soon have to make way for a moderate-income housing complex, Garvin said.
CELLspace, she said, would have applied for Prop. A funding, but is looking elsewhere now. The Mayor’s Office of Criminal Justice in early July passed over their $600,000 grant application, which would have funded a street outreach and case management program for 18- to 24-year-olds.
“I think we’ve done a really good job creating a sanctuary in here,” she said. “You have to be careful how you do it. You can’t just hire anyone.”
While the city eventually found money for community-based organizations through the budget process, it’s doubtful the debate over how to take on street violence issues will cease.
“Something like Prop. A,” Luis of Coleman Advocates says, “was long overdue.” SFBG

DNA

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For proof – as if any is needed – that television is overwhelmingly a right-wing medium, one need only contemplate the manner in which DNA evidence is cited in the glut of true crime shows that crowd A&E, CourtTV, and other networks. Almost without fail, DNA is shown being used to convict the guilty. It is presented as proof that the legal system – with scientific help – is just and right.

Jessica Sanders’s new film, After Innocence, is devoted to the kind of true-life stories you probably won’t find on Cold Case Files. The DNA evidence here exonerates men who have been sentenced to life, men who’ve already spent decades in prison on false charges. With this type of subject matter, Sanders can’t help making an emotionally affecting movie.

But After Innocence also looks beyond the entwined grief and relief in these men’s lives to the bullheadedness of the system that put them there. For example, in the case of at least one of the film’s subjects, a prosecutor continually refutes seemingly irrefutable evidence because he can’t face up to the fact that he made a – knowing, not innocent – mistake at trial.

I’ve read reviews of After Innocence that complain that Sanders doesn’t stick to her theme – that her dedication to these men’s lives after imprisonment wavers, giving way to an advert-like portrait of prisoner’s-aid group the Innocence Project. These complaints from a too-literal view of Sanders’s title. After Innocence is by no means perfect, but its name refers not only to the lives of those exonerated but also – and just as crucially – to the actions of the criminal justice system. How will it treat a prisoner after his (or her) innocence has been established?

The answer isn’t a satisfying or inspiring one – it’s maddening. Quite often robbed of more than half their lives, the men of After Innocence are expected to be grateful that they’re "free" today. Compensation? Not a chance. Rather like a certain commander in chief, the legal and criminal-justice forces at play here consider themselves above even having to make an apology. (Johnny Ray Huston)