George Gascon

More time, same crime

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joe@sfbg.com

Roll up a dollar bill, snort a line of coke, sit back and smile: If your cocaine use leads to a conviction, your drug of choice will be spared from the harsher penalties associated with inhaling the substance through a glass pipe. When it comes to busts for cocaine possession and dealing, those caught with a rock instead of the powdered stuff are kept behind bars longer. But that could soon change.

The drug is the same, the punishment is not — and a new bill may soon end that decades-long disparity, one that critics have called racist. But crack cocaine use is now at a historic low in San Francisco, raising a question: What took so long?

The California Assembly voted 50-19 Friday [8/16] to pass the Fair Sentencing Act, which aims to lower the sentence for possession with intent to sell crack cocaine to be on par with that of powder cocaine.

The bill, authored by Sen. Holly Mitchell (D-Los Angeles), is seen as championing racial justice.

“The Fair Sentencing Act will take a brick out of the wall of the failed 1980s drug-war era laws that have devastated communities of color, especially black and Latino men,” Lynne Lyman of the Drug Policy Alliance said in a prepared statement.

Crack cocaine rocks have tended to be more heavily used by African Americans, while powdered cocaine tends to be the province of rich white folks. The bill would lessen the maximum sentence for crack cocaine possession with intent to sell to four years, down from five. It would still constitute a felony.

In California, having a drug-related felony on record can prevent the formerly incarcerated from accessing housing assistance and food stamps, further feeding a cycle of poverty. The Fair Sentencing Act now awaits Gov. Jerry Brown’s pen. But some say this disparity should have been addressed some 30 years ago.

The 1980s gave rise to the “crack epidemic” narrative, a supposedly sweeping addiction promulgated by media reports on crack’s outsized harm to pregnant women and newborn babies. But those health impacts are now understood to be on par with tobacco use during pregnancy, rather than the terrifying danger it was presented to be.

Still, the images and narratives from that era were powerful.

In a television news report that aired in the 1980s, an unnaturally tiny baby quivers and shakes on the screen. Then-First Lady Nancy Reagan appears and hammers the point home: “Drugs take away the dream from every child’s heart, and replace it with a nightmare.” Flash forward to the future, and university researchers have produced studies showing that the babies born to crack-using mothers that so frightened the country were simply prematurely born, and went on to lead healthy lives.

True or not, people were outraged. The change in laws happened “virtually overnight,” Public Defender Jeff Adachi told us. Crack cocaine hit San Francisco hard.

Paul Boden, executive director of the Western Regional Advocacy Project, remembers it well. He had just come out of homelessness in the Tenderloin in the ’80s. Just prior to starting as a staffer at Hospitality House, he saw the worst of it.

“People were killing each other over the stupidest shit. It got really violent,” he said. “What crack cocaine did is it divided a community against itself. I never thought I’d get to a point where I missed heroin.”

But, he added, “I do think the advent of crack and the assumption that every black male was doing crack gave the cops carte blanche for all of their racist patterns.”

According to the Drug Policy Alliance, people of color accounted for over 98 percent of men sent to California prisons for possession of crack cocaine for sale. Two-thirds were black, and the rest were Latino.

Long since the days when cops regularly raided the Tenderloin on a hunt for every glass crack pipe, the SFPD is now a somewhat more lenient beast in the drug realm. Drug arrests in the city dropped by 85 percent in the last five years, according to California Department of Justice data. Police Chief Greg Suhr downsized his narcotics unit, shifting to focus on violent crime.

“People that sell drugs belong in jail because they’re preying upon sick people,” Suhr told the Guardian, although he added, “People with a drug problem need to be treated, as it’s a public health issue.”

Suhr said he supports the lower sentencing for crack cocaine to make it on par with powder.

“Cocaine,” he said, “is cocaine.”

District Attorney George Gascon’s office also prosecutes mostly violent and property crimes as opposed to drug possession, reflecting a rare show of agreement between the Public Defender’s Office, the SFPD, and the DA. San Franciscans battling drug problems are often diverted to drug courts and rehabilitation programs.

Crack cocaine has largely moved on from San Francisco, leaving its ugly legacy. Meanwhile, heroin use is on the rise, but nevertheless carries the same harsh sentence as crack cocaine for possession with intent to sell.

“It’s the pathetic state of politics today that it took this long for this to happen,” Boden told us, on sentencing reform. “Now it won’t cost me anything, I’ll show what a great liberal I am.”

 

Alternative event to National Night Out shifts focus away from surveillance

Aug. 5 marks National Night Out, an annual event promoted by local governments and law enforcement agencies geared toward ending neighborhood violence and promoting public safety.

In San Francisco, Mayor Ed Lee is scheduled to join Police Chief Greg Suhr and District Attorney George Gascon at a Visitacion Valley playground for a National Night Out gathering. A host of other neighborhood block parties are scheduled throughout San Francisco and Oakland as well.

National Night Out gatherings, which are sponsored by the National Association of Neighborhood Watch, are scheduled to take place nationwide. Block party attendees are encouraged to come out and meet their neighbors as a way of banding together against crime. Yet some have questioned the heavy emphasis this event places on suspicion and surveillance as tools for promoting neighborhood safety.

To offer a different perspective, the Ella Baker Center for Human Rights has organized a community gathering Aug. 5 at the Lake Merritt amphitheater, billed as the Second Annual Night Out for Safety and Democracy.

“We still want to have a celebration of the community – but we really want to reframe the message that it’s not all about setting up a neighborhood watch program,” said Maria Dominguez, a community organizer with the Ella Baker Center. She added that a mass effort to encourage suspicion and neighborhood surveillance can lead to unintended consequences, such as actions that are unnecessarily based in fear, or racial profiling.

Instead, the Ella Baker Center hopes to emphasize restorative justice practices, youth job training programs, and reentry services as tools for promoting community safety. The group is also highlighting the need for more resources to be dedicated toward these programs as state funding becomes available.

“Safety really goes hand in hand with the lack of economic opportunity in our communities,” Dominguez said. This coming fall, she noted, the Alameda County Board of Supervisors will begin discussing allocation of some $30 million in state realignment funding. Historically, only about a fourth of this has gone toward community-based organizations focused on efforts such as reentry services, with the rest being devoted mainly to law enforcement agencies.

“We want to make sure there’s more funding allocated for community based organizations providing restorative justice initiatives, and other organizations that focus on employment and workforce development opportunities,” Dominguez said.

“With the recent rise in local surveillance initiatives and private patrols, it’s more important than ever to encourage neighbors to build connections with one another so that they can see each other,” said Ella Baker Center executive director Zachary Norris, “rather than watch each other.”

The evening’s event will feature talks by practitioners in restorative justice practitioners and representatives from organizations working around reentry programs. There will also be food, art, voter information, and a performance by Turf Feinz. They’re turf dance performers whose moves – consisting of “elaborate footwork, gliding, gigging, contortion and acrobat,” according to the event description – have been known to liven up BART commutes. 

“Rain,” Turf Feinz’ video from 2009 created in memory of a friend, got more than six million YouTube hits.

Is the SF District Attorney’s Office biased against cyclists?

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There’s been much discussion over the last year about whether police and prosecutors in San Francisco are biased against bicyclists. And while the San Francisco Police Department has admitted problems in their investigations of collisions that injure cyclists and pledged to do better (with mixed results), the District Attorney’s Office doesn’t seem have gotten the message.

The cyclist community was appalled last month when District Attorney George Gascon refused to follow SFPD recommendations and file criminal charges against the commercial truck driver who killed cyclist Amelie Le Moullac in August, a high-profile case that highlighted SFPD bias and triggered a series of hearings on the issue at City Hall.

Now, a San Francisco jury has voted overwhelmingly to acquit a cyclist who collided with a pedestrian last year, finding that the collision was clearly accidental and that the cyclist tried to avoid the victim who jaywalked to check the parking meter for her car and then abrupted reversed course and collided with the cyclist.

“The evidence in this case was clear: It was an accident, not a crime,” Deputy Public Defender Tammy Zhu said of her client, 20-year-old John Kewin, who faced up to a year in jail after the DA’s office charged him with reckless driving.

But the jury last week voted 11-1 to acquit Kewin, siding with witnesses who said he tried to avoid the collision over one witness (ironically, a cyclist) who testified that Kewin was riding too fast. So the DA’s office this week decided to drop the charges.

Public Defender’s Office spokesperson Tamara Barak Aparton told us charges should have never been filed in the case: “I don’t think it should have been, it was clearly an accident and not a crime.”

The DA’s Office has refused to file criminal charges against any of the four motorists who killed cyclists in San Francisco in the last year, even in cases where the drivers were making illegal turns across bike lanes and making no efforts to avoid the cyclists.

Does the District Attorney’s Office have a bias against bicyclists? We left messages with two different spokespeople from that office, and we’ll update this post with their replies if and when we hear back. 

Claim filed over SFPD shooting of Alejandro Nieto

The family of Alejandro Nieto, the 28-year-old City College student and community activist who was gunned down by the San Francisco Police Department March 21, has filed a claim against the city in preparation for a lawsuit responding to what they allege was an unjustified shooting. 

Friends, family and supporters of Nieto gathered in front of San Francisco City Hall April 14 with attorney John Burris, who is representing Nieto’s family. Burris is a prominent civil rights lawyer known for representing families whose sons have died as a result of officer involved shootings, including the family of Oscar Grant.

An initial examination of the body suggests Nieto died from wounds inflicted by at least 10 bullets, fired by multiple officers, Burris said. Police initially encountered Nieto in Bernal Heights Park in response to a 911 call reporting a man with a gun. Nieto, who was employed full-time as a security guard, actually possessed a Taser and not a firearm. Police said officers opened fire because he pointed the Taser at them, and they confused it with a gun when they saw a red dot emitted from the device after it was drawn, tracking officers.

Burris isn’t buying the police department’s account, but said he faces obstacles obtaining key information that would shed light on the incident.

“We have not been able to obtain the 911 audio,” or other communications records documenting what happened just before and after the shooting, Burris said. So far, the San Francisco Medical Examiner has not released an official report.

“That is part of the problem we are up against. We can make requests and ask for it to be preserved,” he said of the audio files, “but we cannot get it. And unfortunately, lawsuits are one way that we know we’re going to get it.”

Benjamin Bac Sierra, a friend of Nieto’s who is serving as a spokesperson for the family, waved a bundle of petitions he and community members had collected to call for an investigation at the local level. “Besides filing this claim, the family demands that San Francisco District Attorney George Gascon launch an official investigation into Alex’s killing by the San Francisco Police Department,” Bac Sierra said. “We demand that the district attorney fully investigate this case on behalf of Alex and his family.”

Burris said he believed moving forward with an independent lawsuit was necessary even as the Office of Citizen Complaints, an independent agency overseen by the San Francisco Police Commission, advances its own investigation.

“I’ve worked with the OCC on many cases in the past, but that’s on a parallel track. They have one process, we have another,” he said. “At the end of the day, we have to do our own to protect ourselves.”

Burris also said that given the recent history of federal prosecution against the SFPD, he believed the involvement of the U.S. Attorney’s office would be appropriate. “We’re requesting that the U.S. Attorneys here with the Department of Justice conduct an independent investigation into the circumstances surrounding Alex’s death,” Burris said, “and if necessary, file criminal charges against these officers.”

In a later conversation with the Bay Guardian, Bac Sierra noted that an audio recording of the shooting had been obtained from a neighbor of the park, who captured it through a home security system. Bac Sierra said the recording suggests two shots were initially fired, followed by a pause, followed by “a continuous volley” of shots. Bac Sierra, who declined to provide the neighbor’s name, said the sound file did not contain audible verbal communications prior to the shots being fired.

Community members angered by Nieto’s death have set up a website, justice4alexnieto.org, and have planned an event for the one-month anniversary of the shooting. Called Burritos on Bernal Hill, the gathering is scheduled for Monday, April 21, at Precita Park at 5pm.

Avalos: Should SFPD officers wear body mounted cameras?

The fatal shooting of Alejandro Nieto, a man who possessed a Taser that was mistaken for a firearm who was killed in Bernal Heights Park, produced a backlash of community anger toward the San Francisco Police Department. It was the first thing Sup. John Avalos mentioned when he called for a hearing on equipping officers with body-mounted video cameras at the April 8 Board of Supervisors meeting.

Avalos knew Nieto, and the incident struck close to home. He mentioned another recent incident of police violence at City College of San Francisco in which officers targeted student protesters; video footage from a bystander shows an officer releasing his nightstick, making a fist, and throwing a punch at someone already being restrained.

“These incidents show that there’s a great deal of work we need to do … to build trust between members of the community and the police department,” Avalos said. “These incidents involved people I knew and it almost makes me feel how widespread the problem can be.”

Police body-mounted cameras have been tried in New York, Los Angeles, New Orleans and other places as a way to shore up police accountability and provide a record of officer interactions with targeted suspects, Avalos said, and there is support for the technology both among law enforcement communities and civil liberties watchdog organizations.

“Many police support these cameras because they can help protect police officers against false accusations,” Avalos noted. “Watchdog groups support police body-mounted cameras because they can help reduce incidents of police misconduct. The [American Civil Liberties Union] supports the cameras because they allow the public to monitor the government, instead of the other way around.”

Avalos’ request called for a review of the feasibility of equipping police officers with body cams, taking concerns about cost and privacy into consideration, plus a cost-benefit analysis to show how the cost of the cameras would compare with potential savings from reductions in citizen complaints and use-of-force lawsuits.

SFPD spokesperson Sgt. Danielle Newman noted that the SFPD is already in contract negotiations for a pilot program that would equip 50 plainclothes sergeants with body-mounted cameras. The program would be funded through a federal grant, Newman said, and the department has not yet received the cameras or hashed out policies spelling out how long data would be stored, how often they would be used, or whether officers would be able to switch them on and off at will.

Newman said the pilot program grew out of allegations that undercover officers had stolen property and violated the civil rights of SRO residents during searches of their units, incidents that were initially brought to light by the San Francisco Public Defender and more recently became the subject of a federal indictment.

“When Chief Suhr took over, he was looking at ways to ensure that those things don’t happen again,” Newman explained. The department was under the leadership of former Police Chief George Gascon when the officers now facing charges were caught on film by SRO surveillance cameras.

Despite the planned pilot, Newman said Suhr was less certain about the idea of equipping 1,500 to 2,000 officers with body cameras, as Avalos’ request is geared toward.

“The concern with the chief is that with San Francisco, we haven’t been able to get crime cams put up,” she said, let alone having all officers record all police contact with the public. “That’s something that would need to be ironed out.”

Newman added that there were cost and logistical concerns associated with storage of bulk data generated by the cameras.

Rachel Lederman, an attorney with the National Lawyers Guild who represented Occupy protester Scott Olsen in a police misconduct case that left Olsen with lasting brain injuries and resulted in a $4.5 million settlement, said she was skeptical of body cams as a “quick fix” for police violence.

Oakland police officers are equipped with personal digital recording devices, she noted, but in the incident the left Olsen permanently injured, “there were 11 police officers with less-lethal weapons who were supposed to have PDRDs on – but didn’t.”

Lederman said that based on her experience, the footage that is captured on body cams is kept under lock and key by police, and remains hidden to all but doggedly persistent criminal attorneys. In practice, “journalists and affected people can’t get it without a lawyer,” she said, because police departments tend to withhold the footage with the excuse that it pertains to ongoing investigations.

In order to serve as an effective tool for holding law enforcement accountable, Lederman said, body-cam videos “have to be produced under the Public Records Act.”

Lederman added that the video quality tends to be low, officers can turn them on and off at will, and “they try to use them as evidence against people they are arresting.”

Still, a study in Rialto, California that was undertaken by a group of Cambridge University researchers determined that police use-of-force and complaints against police officers declined dramatically after officers were outfitted with the recording devices.

“The findings suggest more than a 50 percent reduction in the total number of incidents of use-of-force compared to control-conditions, and nearly ten times more citizens’ complaints in the 12-months prior to the experiment,” the authors concluded.

Lederman believes those findings are somewhat misleading, however. “Rialto has 66 police officers,” she pointed out. “It’s not really comparable to San Francisco or Oakland.”

Feds indict SFPD cops, alleging a drug ring and shakedowns of the poor

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Federal grand juries today indicted four San Francisco Police Department officers, an SFPD sergeant, and a former SFPD officer on a variety of corruption, civil rights violations, and theft charges stemming from illegal raids on poor residents of single room occupancy hotels in San Francisco.

“Our department is shaken,” Police Chief Greg Suhr told reporters at a morning news conference. “This is as serious a matter as I’ve ever encountered in the Police Department.”

Yet Suhr also distanced himself from scandal, telling reporters, “This conduct occurred before my time as chief.” Shortly after Suhr was sworn in as chief in April 2011, he changed department policies related to the SROs, including preventing officers from using pass keys to enter the buildings without a warrant or the rooms without probable cause.

The pattern of alleged criminal behavior by SFPD officers was exposed in early 2011 by Public Defender Jeff Adachi, whose investigators found video surveillance from the Henry Hotel and other local SROs that supported defendants claims that police were shaking them down and then submitting false police reports.

“The indictments today are a victory for ordinary San Franciscans,” Adachi told reporters today, emphasizing that in addition to personally profiting from the shakedown, these officers were also submitting false testimony in perhaps hundreds of cases, including 100 that his office has gotten dismissed. “These allegations not only involve violations of the constitutional rights of our clients, but also lying on police records that were used to sent individuals to prison based on the testimony of these officers.”

Once the videos were made public, the investigation was referred to federal investigators because District Attorney George Gascon’s office had a conflict of interest, given that he had just come from serving as police chief in the SFPD, where he presided over the officers involved in this scandal.

Gascon issued a public statement saying, “I am relieved to know that the officers have been indicted after I referred the matter to federal authorities. It is extremely disappointing that the officers violated the trust of the community and tarnished the reputation of all the hard working men and women in uniform. As law enforcement, we must all work hard to ensure our agencies operate with the highest integrity and are deserving of the trust the public bestows upon us.”

Raw video of the press conference via KTVU.

His office didn’t respond to Guardian questions about his culpability in the scandal, but Gascon is likely to be asked about it when he holds a press briefing this hour. [UPDATE 5:30PM: During a brief press availability, Gascon said the indictments shouldn’t be considered a reflection of his leadership of the department: “Anytime you have a large organization, you are going to have people who operate outside the boundaries of what is acceptable.” Asked by the Guardian when he became aware of allegations that his officers were being accused of shaking down tenants in the SROs, he said, “We became aware at the same time everyone else did, when the videos came out.” The press availability was cut off after 10 minutes because Gascon was giving a State of Public Safety speech upstairs, showing up 25 minutes later, but spokesperson Alex Bastian said he would try to get answers tomorrow to Guardian questions about Gascon’s record and independence when it comes to prosecuting police abuse cases.]

Those indicted today were Officers Arshad Razzak, Richard Yick, Raul Eric Elias, and Edmond Robles, and Sgt. Ian Furminger. Also indicted was former officer Reynaldo Vargas, who was caught on videotape appearing to steal a laptop computer from a tenants in the Henry Hotel, and who Suhr said was dismissed from the SFPD before the federal investigation began.

Suhr also said that all of those involved have been on administrative duties throughout the investigation, which the SFPD cooperated with, and that some of them (he couldn’t say how many) were also required to turn in their firearms.

These indictments also don’t appear to be the end of this unfolding scandal. “There were other officers involved and they will be dealt with administratively,” Suhr said without providing details. When asked by the Guardian whether anyone in the command staff may face discipline, Suhr said “no.”

But with these six facing possibly lengthy prison terms, it will be interesting to see what they have to say about what others in the SFPD knew about their actions, which also allegedly involved running a drug ring out of Mission Station, where Furminger, Robles, and Vargas are accused of illegally seizing and selling marijuana.

Adachi wants to see this investigation continue: “It would be hard to believe that nobody who was involved in supervising these officers was aware of it.”

Granny slap

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Lisa Gray-Garcia, aka “Tiny,” led a press conference outside the San Francisco Hall of Justice on Feb. 5 to announce that she and fellow activists were filing elder abuse charges against San Francisco landlords.

Flanked by activists and senior citizens who were facing eviction or had lost housing in San Francisco, the Poor News Network founder condemned landlords who’ve invoked the Ellis Act as “dangerous criminals.”

Gray-Garcia said criminal charges were being filed against the landlords in accordance with California Penal Code 368, which creates a special category for crimes — such as infliction of pain, injury, or endangerment — committed against elders and dependent adults.

The theory is that carrying out an Ellis Act eviction against a senior citizen qualifies as a criminal act under that law, since an elder can suffer physical harm as a result of being turned out of his or her home.

“Seniors who live in houses that they’ve lived in for a really long time are being evicted,” said Erin McElroy, who joined the rally. “That could mean homelessness, that could mean poverty, that could mean death, that could mean losing your access to health care.”

“The real criminals are the ones who use paper, and money, and lawyers to evict us,” Gray-Garcia said. “We at POOR Magazine get five to 10 calls a week from elders — 70, 80, 90 years old — at the point where they’re actually going to be evicted,” she added. “In the elder abuse law, if you willfully or unwillfully cause harm or inflict harm on a body of an elder, you actually can do one year jail time or pay a $6,000 fine.”

The targeted landlords were taken from a list compiled by the San Francisco Anti Eviction Mapping Project, a volunteer-led group that published names, property ownership, and identifying information of 12 landlords who had repeatedly invoked the Ellis Act in San Francisco. Garcia read out their names as part of the press event.

Beyond that, however, the announcement was short on specifics. Gray-Garcia told the Bay Guardian she did not want to share the names of the affected seniors because she did not feel comfortable exposing the elderly tenants to potential backlash.

Joining the group of activists was an 82-year-old woman who used a walker and declined to share her name. She told the Bay Guardian she had lived in her Richmond District flat for more than 30 years, and had recently received a verbal warning from her landlord that if she did not move out, he would invoke the Ellis Act.

When Gray-Garcia and others filed into the San Francisco District Attorney George Gascon’s office inside the Hall of Justice, however, Chief Assistant of Operations Sharon Woo discouraged them from filing the charges.

“We don’t actually initiate investigations,” Woo told the activists, but when attorney Anthony Prince, who had accompanied the activists, pushed back on that point, she responded, “We could, potentially.”

However, she urged them to first “go to the normal channels, which is a law enforcement investigation,” then scheduled a follow-up meeting at a later date to discuss the issue further. She discouraged the activists from bringing a large group to the meeting. “There’s a 98-year-old woman being forced out of her home in April and she has nowhere to go,” McElroy told Woo during that interaction. “And we’re filing criminal charges against the people who are forcing her out.”

San Francisco landlords targeted for elder abuse

Lisa Gray-Garcia, aka “Tiny,” led a press conference outside the San Francisco Hall of Justice Feb. 5 to announce that she and fellow activists were filing elder abuse charges against San Francisco landlords.

Clad in a gray pantsuit and flanked by activists and senior citizens who were facing eviction or had lost housing in San Francisco, the Poor News Network founder condemned landlords who’ve invoked the Ellis Act as “dangerous criminals.”

Gray-Garcia said criminal charges were being filed against the landlords in accordance with California Penal Code 368, which creates a special category for crimes – such as infliction of pain, injury or endangerment – committed against elders and dependent adults.

The theory is that carrying out an Ellis Act eviction against a senior citizen qualifies as a criminal act under that law, since an elder can suffer physical harm as a result of being turned out of his or her home.

The targeted landlords were taken from a list compiled by the San Francisco Anti Eviction Mapping Project, a volunteer-led group that published names, property ownership, and identifying information of 12 landlords who had repeatedly invoked the Ellis Act in San Francisco. Garcia read out their names as part of the press event.

Beyond that, however, the announcement was short on specifics. Gray-Garcia told the Bay Guardian she did not want to share the names of the affected seniors because she did not feel comfortable exposing the elderly tenants to potential backlash.

Joining the group of activists was an 82-year-old woman who used a walker and declined to share her name. She told the Bay Guardian she had lived in her Richmond District flat for more than 30 years, and had recently received a verbal warning from her landlord that if she did not move out, he would invoke the Ellis Act.

When Gray-Garcia and others filed into the San Francisco District Attorney George Gascon’s office inside the Hall of Justice, however, Chief Assistant District Attorney Sharon Woo first told them that they should complain to the police department, then scheduled a meeting with them at a later date.

Here’s how it went:

Guardian video by Rebecca Bowe

In order of appearance, speakers include Erin McElroy, a tenants’ rights advocate; Gray-Garcia; a District Attorney staff person whose name we didn’t catch; Woo, and Anthony Prince (there because he is campaign manager to Green Party gubernatorial candidate Luis Rodriguez, who spoke at the press conference).

Is the new iPhone fingerprint reader hacked yet?

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Apparently, the answer is yes. Wired is reporting that a German hacker with the European organization Chaos Computer Club has found a way to fake out Apple’s brand new Touch ID fingerprint reader, rolled out as a security feature.

The hacker, who goes by Starbug, demonstrated that the phones can be hacked with replicas of real fingerprints constructed with pink latex milk or woodglue. It isn’t the first time CCC set out to prove the flaws in biometric security systems – a few years ago, the hackers published the image of a fingerprint belonging to a German interior minister who was strongly advocating for new electronic passports that would be linked to individuals’ fingerprints.

A few weeks ago, we reported that San Francisco District Attorney George Gascon and other law enforcement officials had banned together to call on smartphone manufacturers to implement new security features as a way to address growing theft of mobile devices. Apparently, the fingerprint ID systems don’t offer the level of security Apple was hoping for. The latest iPhones, which include fingerprint readers, were just released Sept. 20.

According to the SFPD, more than 50 percent of robberies occurring every day involve smartphones.

Tragedies remind us to pay attention and share the roads

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A pair of tragic news items involving bicyclists in San Francisco — one cyclist a victim, another a perpetrator — illustrates the need for all of us to slow down, pay attention, and safely and respectfully share the roadways of this crowded city.

The victim of yesterday’s fatal collision between a truck and bicyclist at Folsom and 6th Streets — in which the motorist turned right across the path of cyclist in a bike lane, but was inexplicably yet not surprisingly not cited by police — was today revealed to be 24-year-old Amelie Le Moullac.

Meanwhile, 37-year-old cyclist Chris Bucchere was today sentenced to 1,000 hours of community service and three years probation after pleading guilty to felony vehicular manslaughter after last year trying to beat a red light at Castro and Market streets and fatally striking elderly pedestrian Sutchi Hui.

“Motorists, pedestrians, and bicyclists must share the road in a responsible way because there are dire consequences when traffic laws are disregarded,” District Attorney George Gascon said today after Bucchere’s sentencing.

Both of these incidents were sad for all concerned, and they should remind us to be responsible and attentive travelers, a lesson that we could all use. Everyday on my bike commute home, I see motorists running red lights or darting heedlessly around obstacles, risking people’s lives to save seconds of their days; cyclists impatiently edging their way past pedestrians; and pedestrians stepping out into traffic without looking around them, often because they’re absorbed by their smartphones.

We’re all guilty of bad behavior on the roadways at times, myself included, so I’m not going to presume to stereotype any particular group of road users (I’ll leave that to the trolls). But when we hear about terrible tragedies like these, it’s good to take a moment to reflect on our own behavior and do what we can to civilly share our civic spaces, particularly when wielding the deadly weapons of a fast-moving bicycle or an automobile moving at any speed.  

Changing the metaphor

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news@sfbg.com

With my partner-in-crime Keith Chandler at the wheel, we’re driving through San Francisco on our way to Stanford University Law School for the Three Strikes Summit, a deeply personal topic to both of us. Three Strikes is partly why I served 15 years in prison, and Stanford’s Three Strikes Project is a big reason why I was released earlier this year.

Chandler is a renowned activist, ex-lifer, and my comrade in the struggle to reintegrate inmates back into life in the outside world. I have become a fanatic on a mission, and this May 2 event will feature many of the top criminal justice players responsible for last year’s Three Strikes reform measure, from Attorney General Kamala Harris to San Francisco District Attorney George Gascon.

So the path we carve through the City takes us deep into the heart of the reform movement that changed my life. Change is in the air, and I’m following the scent back to its roots.

POSTER CHILD

Three Strikes as a metaphor made perfect sense. In the 1980s, the justice system was a revolving door. Relatively short sentences for serious and/or violent crimes were the norm, sentences often cut in half by parole. Lengthy records of arrests and convictions fueled a movement to get tough on crime.

As per usual, bad things happened. In 1993, sexual predator Richard Allen Davis killed Polly Klaas, a 12-year-old girl from Petaluma. A general consensus formed that repeat offenders needed to be punished to the fullest. So prison industrialists came up with a catchy solution: three strikes and you’re out. Commit three violent crimes, the authors sold to the public in 1994, and you’ll serve 25 years to life.

However, the fine print expanded the concept to any third felony — even crimes that would be misdemeanors to non-parolees — and California’s prisons swelled.

In many ways, I was a Three Strikes poster child. As a wild youngster in Sacramento, I was a menace. At 18 in 1984, I began a four-year spree of crimes that included armed robbery, assault with a deadly weapon, and residential burglary. For those transgressions, among others, I received a 12-year sentence in 1988.

I embraced sobriety, college, and writing as I served six discipline-free years. Back then, we had a right to participate in rehabilitative endeavors. Effective programs like cognitive restructuring and life-skills classes might have been foreign concepts, but I benefitted from college, weight training, and family visiting.

But I was still trapped by my criminal thinking — plagued by my nefarious associations. Though I hid it well, I was all fucked up.

In 1994, I was paroled into a whole new ball game: the era of three strikes. As soon as the law passed, the horror stories began to amass. Guys were being struck out for stealing from stores or possessing small amounts of drugs. California became the republic of the intolerant. Mired by myriad imperfections, I stepped up to the plate and swung for the fences.

A 28-year-old undergraduate with a range of goals, I started a construction company and contemplated graduate school. And instead of taking my construction company seriously, or even finishing my undergraduate education, I started using and selling meth — partying like there was no tomorrow.

In my broken way of thinking, I convinced myself that supplementing my income made perfect sense. In reality, it was an excuse to get high for free and it all fell apart. Two parole violations for drug cases seamlessly lead to a felony drug case in 1999. I went from baller to squalor, and hit a line drive right to the catcher. I struck out and faced a lifetime behind bars.

When my life came to an end, I chose to change the rules of my game. I found purpose by advocating for my demographic. As the system began to shift towards smart-on-crime principles in the mid-’00s, I managed to shift with it. My two-pronged litigious and literary activism — a lifestyle that regularly put me at odds with my captors — morphed into rehabilitative advocacy.

As a result of voters approving Prop 36 last fall, my life sentence was lifted on March 22. The merits of my rehabilitative record coalesced with a successful one-time review. As I walked out of prison a week later and jumped into the arms of my childhood sweetheart, I told Charlotte, “Let’s get the hell out of here before they change their minds.”

ROAD TO REFORM

After all the craziness of 15 years of incarceration, I have been decompressing in a transitional housing program. With a bachelor’s degree and multiple drug counseling certifications, I’m establishing myself as rehabilitative consultant. Moreover, I received the ultimate welcome home gift when The Sacramento Bee covered my reentry.

As we arrived on the Stanford campus, I thought of the friends and foes I left behind in prison. To me, this is serious business, a personal progression of nonstop advocacy. Keith’s gig as a criminal justice consultant now includes a new task — delivering me into the apex of reform.

Stanford Law School started the Three Strikes Project in 2006. The human lessons learned from securing the release of 26 three strikers motivated project director and law professor Mike Romano to shift tactics. He decided to take a bigger swing at a very bad law. By avoiding the mistakes from a catastrophic 2004 reform initiative, Romano could secure the release of thousands rather than dozens.

The project decided a narrowly drafted initiative would have the best chance for success. To qualify for a reduced sentence, minor third strikers without murder or sex offenses in their backgrounds would be vetted by the courts to determine whether they currently posed an unreasonable risk to public safety. He took down one of the nation’s toughest laws with 69 percent of the vote.

Of the 9,000 three strikers in California prisons, Prop. 36 made nearly 3,000 eligible for review. On the day of the summit, a prison official reported 460 had already been released — a number that will climb daily. While most counties have over 100 candidates — and some hotly contested cases are on the horizon — Los Angeles has a staggering 1,325 cases. San Francisco, by contrast, only has two, the result of SF’s sober, compassionate approach to charging three strikes cases.

Hearing the statewide cries from their landmark measure, Stanford invited all relevant parties to discuss how to move forward. Harris, the keynote speaker, wrapped her entire speech around a unique prosecutorial career that began in San Francisco.

As the author of Smart on Crime: A Career Prosecutor’s Plan To Make Us Safer, Harris models cutting-edge thinking as the state’s top cop. She pursued data-driven policies as she learned to look at “other issues through the lens of public safety.” By doing so, Harris avoided the sensationalism mentality that leads to hyper-incarceration.

Her successor, Gascon, followed her approach. Research showed Gascon that “higher levels of incarceration don’t translate into increased public safety.” So he teamed up with Stanford, the NAACP, and other like-minded officials as early supporters of the Three Strikes Reform Act of 2012.

Overall, the summit included a range of panelists who discussed a number of relevant topics. But how to adjudicate all these cases was juxtaposed by the need to find resources for reentry services. Stanford professor Joan Petersilia has been instrumental in every recent criminal justice policy change in California, and she warned of the need for more reentry programs.

“What goes down can easily go up,” Petersilia said, warning the crowd about prison populations and crime rates. “Roughly $1 million is being spent on the average three striker, and zero is being spend on their reentry.”

FREEDOM

Most of us are being released without any supervision or any type of state or county funds associated with probation or parole. Since we have far exceeded our sentences, the average three striker is leaving prison with little to no resources, let alone being able to tap into existing programs. I’m paying for my program out of my own pocket.

While it took decades to create the worst justice and prison system in the country, it’s definitely going to take years to correct. I advocated for more than a decade while buried under draconian measures buttressed by dreadful prison policies. Thus, I am excited groundbreaking issues are being discussed by people like this.

For those officials still trapped in their broken thinking, I also know how hard it is to abandon criminal thinking. However, like Gascon said, “Prop 36 is changing the metaphor.”

Seated in Keith’s sports car with the top down, we are making our way up 280 towards the city. Heading back home to Sacramento, I felt like a passenger on the Titanic with an alternate ending. While I am still in the honeymoon stage of my reentry — and reluctant to let this feeling go — I am at the beginning of a new era. We all have work to do.

My life of crime and activism has been an open book — and so is my reentry. After spending the day with journalists and actors in the field of justice, now I feel an even greater obligation to repay my debts. For the first time the light at the end of the tunnel is no longer blurred by the cold hard steel of the penitentiary, or maintained by tone-deaf policy-makers.

I still can’t believe it — I am free.

Check, please

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steve@sfbg.com

San Francisco restaurants that have been cheating their customers and employees — charging diners for city-required healthcare coverage that they aren’t fully providing to workers — will finally be exposed in the coming weeks, with some notable names in foodie circles among the likely culprits.

City Attorney Dennis Herrera is working on settlements with dozens of restaurants that responded to his investigation and partial amnesty offer, which had an April 10 deadline. His effort augments the complaint-driven enforcement actions by the city’s Office of Labor Standards Enforcement, which has collected millions of dollars for thousands of employees of negligent local businesses in recent years.

At issue is the Healthcare Security Ordinance, the landmark 2008 law authored by then-Sup. Tom Ammiano that requires San Francisco businesses to provide a minimal level of healthcare benefits to their workers. Businesses are also required to report spending and surcharge figures to the OLSE annually, with the next report due April 30.

Last year’s data show celebrity chef Michael Mina’s Mina Group LLC — which includes the restaurants Michael Mina, RN74, Bourbon Steak, and Clock Bar — to be the top violator, collecting $539,806 in surcharges from customers and spending just $211,809 on employee healthcare.

Herrera used that list to ask more than 70 businesses to show they are in compliance with the law or reach discounted settlements now to avoid punitive fines or criminal charges later, and Herrera told us he received 60 responses and had his inquiry snubbed by fewer than a dozen.

“It’s too early to talk about how large a recovery we’ll be getting for workers, but I’m pleased with the response rate,” Herrera told us. He refused to estimate how many of the respondents were found to be in violation, but in an April 11 message to reporters covering the issue, his spokesperson Matt Dorsey wrote, “Based on our investigation so far, we anticipate that the majority of these establishments will be required to pay money to compensate their workers.”

WHAT THE FIGURES SHOW

The Guardian contacted many of the restaurants that topped the OLSE list. Some wouldn’t respond, some said they’ve changed their policies since the controversy erupted, and some wouldn’t talk until after a settlement is announced — including the Mina Group. That seems to indicate they’re about to pay for past violations.

Nicole Kraft, who handles public relations for the Mina Group, responded to Guardian inquires by writing, “I wanted to let you know that Mina Group will soon be releasing a joint statement with the City Attorney’s office, which should answer many of your questions. We’ll be sure to send it your way ASAP.” [UPDATE 4/29: Mina Group settled its case for $83,617.]

Sources in the City Attorney’s Office say settlements with as many as 10 restaurants that admit clear violations of the HCSO could be announced in the next week or two, while another 10 or so have provided data showing they are not in violation. The rest are more complicated and could take weeks or months of investigations, which are being led by Deputy City Attorney Sarah Eisenberg.

“There are going to be some that are given a clean bill of health,” Herrera told us. Herrera also told us that his investigation is just getting started and that it will look at businesses that haven’t made required annual reports to the OLSE. “When we get to a place where we’re announcing settlements, we’ll have more to say,” he said when asked for details and dimensions of his investigation.

GGRA Executive Director Rob Black has maintained that the OLSE figures don’t accurately reflect whether businesses are in compliance because the reporting requirements are confusing. GGRA held a compliance workshop on April 17, and Black told us about 40 restaurateurs attended.

“It was very informative and we got really good feedback from the restaurants,” Black told us. “We had people saying, ‘knowing what I know now, we should redo my 2011 form because I did it wrong.”

Black was initially critical of Herrera’s focus on the restaurant industry, but told us last week, “He made a commitment that the process would be efficient and fair, and he’s lived up to that so far….I still believe that the majority [of violators] didn’t have a mal-intent…Many people on the list that was reported have done nothing wrong.”

Cheesecake Factory — which was seventh on last year’s OLSE list, allegedly taking in $159,242 more in surcharges than it spent on employee health care — insists that it is in compliance and expects the City Attorney’s Office to confirm that.

“We believe the City Attorney’s initial review was erroneous,” Richard J. Frings, the company’s vice president of compensation and benefits, told us. “We are in full compliance with HCSO. Our healthcare costs in San Francisco have far exceeded the surcharge that we have collected. Once the City Attorney’s office has an opportunity to review our filings, we believe this matter will be closed without any further action.” He refused to provide figures to support the assertions.

THE HSA PROBLEM

Most of the restaurants that have been accused of stiffing employees use health savings accounts, which health officials say is a far worse option than private health insurance or the city’s Healthy San Francisco plan, which was created in conjunction with HCSO. Federal law bars cities from prescribing how health benefits are delivered.

San Francisco’s restaurant industry has always been hostile to the HCSO’s employer mandate, with the Golden Gate Restaurant Association unsuccessfully challenging the law all the way to the US Supreme Court. Controversy then erupted in 2011 with revelations (first in the Wall Street Journal, followed up by local media outlets) that some of the city’s most high-profile restaurants were shirking their responsibilities even as they charged diners 3 percent to 5 percent surcharges, sometimes essentially pocketing that money at the end of each year.

That verges on consumer fraud, but District Attorney George Gascon has refused to investigate, telling the Guardian and other papers that he was deferring to the OLSE and the City Attorney’s Office.

In 2011, a progressive-led majority on the Board of Supervisors passed legislation authored by Sup. David Campos to require that businesses keep the money they are required to spend on employee healthcare — which is currently $2.33 per employee-hour for large companies or $1.55 per employee-hours for businesses with less than 100 employees — for employees to use as needed.

But under aggressive lobbying by the GGRA and San Francisco Chamber of Commerce — which asserted the right of business owners to raid these funds, calling the set-aside a multi-million-dollar annual loss to the local economy — Mayor Ed Lee vetoed the measure. He later signed watered-down legislation requiring the money be set aside for two years, setting standards for letting employees know how to access the funds, and explicitly calling for all customer surcharges to remain in escrow accounts.

The OLSE, which also monitors compliance with the city’s paid sick leave and minimum wage laws, can only investigate businesses when an employee files a complaint. But then complaints trigger investigations that cover all of a given business’s employees, who are often compensated for past violations. To file a complaint, just write hcso@sfgov.org or call (415) 554-7892.

OLSE figures show the agency has investigated more than 100 complaints since 2008, resulting in $8.1 million in health care benefits provided to more than 6,400 employees and $244,000 in penalties paid to the city. Herrera’s office also reached a $320,000 settlement with the owners of Patxi’s Chicago Pizza in January, just before announcing his broader investigation.

“The vast majority of San Francisco employers have complied with their obligation to make health care expenditures pursuant to the HCSO,” OLSE Manager Donna Levitt told the Guardian. “With respect to the minority of businesses who fail to meet their obligations, the OLSE works tirelessly to ensure that workers receive the benefits to which they are entitled and that all businesses compete on a level playing field.”

Among the restaurants near the top of the OLSE list that did not respond to the Guardian inquires are Squat & Gobble, Wayfare Tavern, and Trinity Building Services.

“We are actually in complete compliance,” Larry Bouchard, manager of One Market restaurant, told us, explaining its inclusion on the OLSE list by saying, “It’s my understanding that we reported the wrong information.” He said the restaurant uses health savings accounts, but that they are widely used by employees, who get their expenditures repaid within three weeks.

Scott Carr, general manager of Boulevard — who sources say was one of the first restaurants to use the healthcare surcharges on customer bills, and whose parent company, Reroute LLC, was fifth on the OLSE list, underspending by $169,777 — told us the figures didn’t fully reflect the company’s spending on employee health care.

He wouldn’t say whether the company will be settling with Herrera for any past violations, but he did say that the restaurants decided to abandon health savings accounts in favor of health insurance policies for employees starting on Jan. 1. As he told us, “We feel we’ve made a positive step.”

DA’s office makeover may have skirted the rules

In a San Francisco Chronicle article published March 31, District Attorney George Gascon was quoted as saying he would not “even bother to defend” his decision to accept payments and in-kind donations for office furniture, valued at $26,445, from a roster of influential donors.

Although San Francisco’s top law enforcement official minimized the issue when questioned by reporters, it appears the DA may not have followed a number of state disclosure regulations when he accepted and reported the donation, which consists of a new glass-top desk and other trimmings to spruce up his executive office and the DA’s victim services lounge.

And the Guardian has learned that a formal complaint will be filed with the California Fair Political Practices Commission, a government accountability agency, alleging violations.

Charles Marsteller, a public ethics advocate and former co-coordinator of San Francisco Common Cause, sent the Guardian a copy of a complaint he intends to file with the FPPC, charging that Gascon either failed to properly disclose political contributions, or violated a gift limit imposed by state law.

“The District Attorney appears to be actively disregarding the applicable state law regarding the furniture payments,” a statement attached to Marsteller’s complaint notes.

Thirteen well-connected donors contributed payments toward the office set, with billionaire angel investor Ron Conway outspending the rest with a monetary contribution just shy of $10,000.

Other contributors, who gave between $1,000 and $2,000, included the Nibbi Brothers Contractors, who have worked on public housing renovations and other residential housing projects within San Francisco; Victor Makras, a member of the San Francisco Employees Retirement System board; Pius Lee, who previously served on the Police Commission; Charlotte Schultz, who holds the position of San Francisco’s Chief of Protocol, and Ryan Brooks, who formerly served on the city’s Public Utilities Commission.

The kind of disclosure form Gascon filed to report the new furniture, known as a behested payment report, is filed in cases where an elected official solicits a donation to a nonprofit entity or a government agency, and successfully secures a payment exceeding $5,000. In the case of governmental agencies, behested payments benefit a department as a whole, rather than any particular individual.

The fact that the donation was reported on a behested payment report, rather than a gift disclosure form, suggests that the new office furniture arrived only after Gascon requested it specifically, to benefit the DA office as a whole. But Marsteller’s complaint charges: “Since the furniture payments at issue were made for the benefit of Gascon’s own use, they would not constitute a behested payment that must be reported on Form 803.”

The complaint goes on to state that payments for Gascon’s furniture should either be counted as “contributions” or “gifts,” but not “behested payments.”

According to a memo prepared by the San Francisco City Attorney in 2008, department heads must obtain Board approval before accepting donations made to public agencies.

“Generally, the Board of Supervisors must approve, by resolution, any gift with a value greater than $10,000 before a City agency or department accepts such a gift,” according to a 2008 memo drafted by San Francisco Deputy City Attorney Jon Givner. The total value of the new office furniture is $26,445, but the funding was divided up among numerous donors, with payments submitted over the course of several months. Conway contributed $9,999 – exactly one dollar under the $10,000 disclosure threshold.

However, Gascon did not solicit Board approval before accepting the furniture payments. Instead, he submitted a resolution and memo to the Clerk of the Board on March 19, to be introduced at the April 2 Board meeting, seeking retroactive approval.

“Apparently, Gascon decided that he should seek to sanitize any violation of San Francisco’s Charter provision regarding acceptance of gifts by requesting retroactive approval,” Marsteller’s complaint suggests.

Reached on his cell phone and asked to comment for this story, Gascon told the Guardian that he was unable to answer questions at that time because a family member was undergoing surgery.

The 2008 memo from the City Attorney also states that city agencies “must report gifts worth more than $100 on the department’s website.” Visitors to the DA’s website will find a section on the “About” page, titled “Supporters of the San Francisco District Attorney’s Office,” which links to a PDF disclosing the donors’ names and individual gift amounts. However, a search on the Wayback Machine, a historical webpage snapshot service provided by the Internet Archive, shows that as of March 12, that disclosure section had not yet been created.

It’s possible that it was created as a result of questions raised. Larry Bush, who maintains a government watchdog news site called CitiReport, told the Guardian he began raising questions about the gift in March. Marsteller’s complaint is endorsed by Friends of Ethics, an ad hoc government accountability group that has also been scrutinizing the furniture payments.

Reached by phone, City Attorney spokesperson Matt Dorsey said he was unable to offer an official comment on the matter. “I wouldn’t be able to comment on, or even acknowledge whether, we gave advice or were asked for advice,” Dorsey told the Guardian.

Gascon, Adachi and conviction rates

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Public Defender Jeff Adachi just released his annual report, and it’s impressive: According to the statistic his office complied, of the 60 felony trials handled by deputy public defenders, 62 percent resulted in acquittals or hung juries. That means that the office of District Attorney George Gascon has a trial conviction rate of just 38 percent when the DA’s office is up against the PD’s office.

That’s a pretty abyssmal conviction rate — and the DA’s office has a different spin. According to DA spokesperson Stephanie Ong Stillman, the overall conviction rate on felonies in 2012 was 67.7 percent. But that includes plea bargains, which officially count as a conviction; she didn’t dispute Adachi’s contention that public defenders win far more than half of their actual trials.

There are a couple of ways to interpret this. Not all criminal trials are handled by public defenders; the better-off defendants hire private counsel. And there’s an old assumtion in the world of criminal justice that rich people get better legal defense because they can hire high-priced private counsel.

But if the DA’s figure are accurate, it’s entirely possible — although nobody has the figures — that the San Francisco PD’s office actually does better in criminal trials than private law firms. Tamara Aparton, spokeperson for Adachi, said she has no data on that, but “I wouldn’t be surprised.”

And there’s no way to dispute the fact that low conviction rates indicate the DA is sending weak cases to trial. If criminal defendants are getting off more than half the time, either the cops are making very bad busts (true all too often) or the DA is trying cases that should have been settled.

Gascon skips valuable reform panel

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District Attorney George Gascon didn’t show up for the town hall meeting that Sen. Mark Leno held on criminal justice reform last night. Gascon was scheduled to appear on a panel with Sheriff Ross Mirkarimi, Chief Probation Officer Wendy Still, Public Defender Jeff Adachi, and Police Chief Greg Suhr (who also didn’t show, sending Commander John Murphy instead).

Gascon spokesperson Stephanie Ong Stillman minimized the decision to forego appearing on a panel with Mirkarimi, whom Gascon prosecuted for a domestic violence incident and continues to persecute with calls to resign or abdicate some of his official duties, telling us, “There was just a change in his schedule.”

But Gascon, who has only lived and worked in San Francisco for three years, might have benefitted from the discussion, which focused on how San Francisco has for decades pioneered a successful approach to criminal justice emphasizing rehabilitation and redemption rather than the punitive “zero tolerance” approach to crime pushed in Sacramento and other jurisdictions, which has been costly in human and fiscal terms.

“This team of individuals you see in front of you have had the most extraordinary results in leading San Francisco,” Leno said, focusing much of the discussion on how well-prepared San Francisco was for Realignment, the year-old state policy of transferring low-level offenders from the overcrowded state prison system to the local level.

David Onek, the UC Berkeley criminal justice professor who ran against Gascon for DA last year, was added to the panel after Gascon bailed out. He said, “San Francisco by all accounts is way ahead of the curve and can really provide leadership to the rest of the state for how to do Realignment right.”

The main reason for that, as most panelists acknowledged, was because of a variety of programs created by longtime Sheriff Michael Hennessey, who endorsed Mirkarimi to continue his legacy over two traditional law enforcement challengers. Mirkarimi noted that Hennessey didn’t have a law enforcement background when he became sheriff, and that the SFPD and other local agencies long resisted the progressive reforms that he instituted.

“The constellation of what we’re all addressing is unique to San Francisco,” Mirkarimi said, describing the city’s current multi-agency approach as “one that recognizes where redemption comes into the criminal justice system.”

Still, whose department oversees Mirkarimi’s three-year probation for his misdemeanor false imprisonment conviction, emphasized how much her department’s approach has changed in recent years, adopting “evidence-based” approach that respects  probationers, which she now calls “clients,” and addressing their needs.

“We created a plan for success instead of supervising for failure,” Still said. “We changed the culture.”

That cultural change came from the Sheriff’s Department, she said. “Sheriff Hennessey developed a litany of programs over the years, so we were well-positioned for [SB] 678,” the legislation that created Realignment. Despite all the recent talk about having “zero tolerance” for crimes like domestic violence, Hennessey’s controversial approach brought ex-offenders into key leadership positions and refused to dehumanize criminals or see them in black-and-white terms.

“In San Francisco, we kind of live in a bubble. You don’t know how crazy it is outside San Francisco,” Adachi said, noting how politicians in other jurisdictions have aggressively sought to block sentencing reforms and demonize criminals for political reasons.
“In San Francisco, we’ve been so fortunate that we’ve had progressive criminal justice policies,” Adachi said, recognizing that the last three DAs refused to bring the death penalty and Mirkarimi for six years ago creating the Reentry Council to address recidivism.

“It might seem like common sense, but it’s radical to other counties,” Mirkarimi said. “It makes me proud to be part of a criminal justice system that is looking forward.”
  

Gascón’s challenge to Mirkarimi belies his own official shortcomings

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The backlash against Sheriff Ross Mirkarimi’s reinstatement by those who oppose him has often been biting and bitter – an indicator that coming together around real solutions to domestic violence, something most supervisors pledged, could still be difficult – but the most hypocritical reaction came yesterday from District Attorney George Gascón.

“Ross is now reinstated as our Sheriff and I accept that. What I will not accept is any compromise of public safety as a result of his reinstatement. Ross Mirkarimi is on probation in this county for a crime of domestic violence. He is, at a minimum, incapable of adequately performing the functions of his office that relate to crimes of domestic violence,” Gascón said in a public statement, calling for Mirkarimi to “wall himself off” from all domestic violence programs and inmates and hire an independent special administrator to oversee them.

Gascón didn’t explain why he believes Mirkarimi can’t oversee these functions, although that’s been a common refrain among Mirkarimi’s critics, almost an article of faith that to them needs no explanation. I understand the sentiment, but as a practical matter, it still doesn’t make sense to me (I’d welcome comments that could offer insights or explanation). I’ve also posed that and other questions to both Gascón and his spokesperson, Stephanie Ong Stillman, and I’ll include an update when I hear back.

Maybe the issue is a conflict of interest, the belief that Mirkarimi will either be too easy or too hard on domestic violence inmates or programs, which seems to be stretch. But if that’s the case, Gascón should get off his high horse. Gascón was the police chief when then-Mayor Gavin Newsom appointed him as DA, and there were many voices in the community who questioned such an unconventional move, one that raised obvious questions about whether Gascón could be objective about cases of police abuse, evidence tampering, or assorted other cases in which he would be called upon to make tough judgments about the SFPD. There were calls for Gascón to wall himself off from such cases, which he refused to do, even though that was arguably a more serious and direct conflict of interest than Mirkarimi overseeing the jail.

Also, let’s not forget that it was Gascón who started this whole ordeal by deciding to charge Mirkarimi with domestic violence crimes, accept the plea bargain to misdemeanor false imprisonment, and recommend the punishment that the court accepted – which included the highly unusual requirement that Mirkarimi issue a public apology to his neighbor, Ivory Madison, who went to police against the wishes of Mirkarimi’s wife. At the time, Mirkarimi was serving as sheriff and overseeing all the department’s functions – and he wasn’t letting the batterers run free or battering them himself – and Gascón didn’t raise this issue of then or make it a condition of Mirkarimi’s plea, which he certainly could have.

Finally, there was this sanctimonious statement by Gascón: “As the chief law enforcement official in this City and County, I will stand unapologetically with the victims. I will work tirelessly to be sure both victims and witnesses know this city does not tolerate domestic violence.” Yet the record of his office indicates something that falls far short of tireless efforts to combat domestic violence.

As a San Francisco Public Press investigation revealed last month, San Francisco has by far the lowest rate of domestic violation prosecutions of any Bay Area jurisdiction, a terrible record that has gotten even worse since Gascón took over. Whether judged by the number of domestic violence cases filed per capita (29.5 per 10,000 residents, compared with 58.5 in the region) or the number cases it received that it declined to prosecute (it dropped 6,200 of the 8,600 cases that it received from police), Gascón has no business claiming to show zero tolerance for domestic violence. His prosecution of Mirkarimi was more aberration than rule.

We’ve been trying to get a comment out of the DA’s Office on this issue for weeks, and they still haven’t replied (Stillman told me today that “we’re still working on it”). Gascón was also asked about his office’s poor record on domestic violence recently on KQED’s Forum and gave only a deflective non-answer. Perhaps he’d be better off figuring out how his office could so consistently fail the victims of domestic violence rather than worrying so much about the too-few of them that he’s managed to send to jail.

We all understand what an emotional and important issue domestic violence is, and even how unsettling it may be to many to have Mirkarimi as sheriff. But the members of the Domestic Violence Consortium and La Casa de las Madres – those who have led the campaign to oust Mirkarimi – aren’t the only people who care about this issue.

During the public comment portion of Tuesday’s Board of Supervisors meeting, there were many domestic violence victims who expressed more outrage over the failure of these domestic violence groups or the DA’s office to support them than they were about Mirkarimi continuing to be the sheriff. The city just spent $1.3 million trying to remove Mirkarimi and another [[CORRECTED FIGURE: $140,000]] paying his interim replacement, Vicky Hennessy – money that could have been better spent directly responding to domestic violence than this fruitless symbolic stand.

But that’s over now, just like their efforts to remove Mirkarimi, and we all need to move on instead of trying to re-fight this difficult battle over and over again. People can still disagree with what happened and vent and be angry – and from what we’re hearing from City Hall, many of the messages have been quite savage, some even threatening violence. They can even work on a recall campaign or take other political actions.

Yet we all still share a city – a wonderfully diverse city with a wide range of perspectives and opinions – and we’re all forced to accept things about it that we don’t like. Gascón doesn’t get to decide who the sheriff is or how he plays that role any more than Mirkarimi got to tell Gascón how to do his job – despite suffering far more direct impacts.

We each have our roles to play, and we’ll all be better off if we do them well and accept that we live in a rainbow city, not a black-and-white world.

Obama’s appeal to SF’s divided Left draws mixed reactions

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President Barack Obama has a divided political base, as local Democrats who showed up at the Laborers Local 261 hall last night to hear his nomination acceptance speech were immediately reminded by leftist protesters. And despite the belief by some true believers that his speech won over its target audience, I have my doubts.

Courage to Resist and its allies from Code Pink, the Occupy movement, and other groups targeted this Democratic County Central Committee watch party (and 24 others around the country) with an appeal that Obama free Bradley Manning, the US soldier accused of turning over classified documents to Wikileaks who has been kept in solitary confinement for almost two years without trial.

“President Obama needs to live up to his promise to protect whistleblowers,” said Jeff Paterson, founder of Courage to Resist and himself a Gulf War resister (and coincidentally the ex-boyfriend of newly elected DCCC member Kat Anderson). For more on that protest, read this.

DCCC member Hene Kelly (and a phalanx of SFPD cops) helped keep the entrance clear – something the good-natured protesters didn’t seem to threaten – and said she understood their perspective: “They’re here because they have a right to ask President Obama to free Bradley Manning, and I agree with them.”

But inside, DCCC Chair Mary Jung wasn’t so happy about this rain on their parade, telling the Guardian that she supported the ideas behind Occupy but said, “I think the message is misdirected at us,” ticking off Democratic Party positions on same sex marriage, immigration reform, and other issues.

When I told her that the protest was actually about Manning, whose fate is pretty clearly in the hands of Obama and his appointees, she offered this hopeful assessment: “I would hope it’s going to work it’s way through the courts as it’s supposed to. There is a process.”

When I tried to get District Attorney George Gascon’s take on whether that process comports with normal legal and civil rights standards, he told us, “I have no opinion. I need to digest the information a little more.” (That was more than Willie Brown offered, with the former mayor, unregistered political lobbyist, and San Francisco Chronicle columnist responding to my questions with, “I’m a columnist. I don’t make comments to other newspapers,” after he gave a speech to the gathered Democrats.)

But it didn’t take Gascon long to digest Obama’s speech, telling us afterward, “I think he hit it out of park. If this doesn’t get the enthusiasm up, nothing will.”

Yet my reaction, and most that I’ve heard since then from people who listened to the speech, wasn’t quite so enthusiastic. Yes, Obama had some good lines, and yes, he fairly effectively countered many of the Republican misrepresentations of his record and ability to quickly turn around the failing economy he inherited. And yes, I think the substance and messaging were more progressive than his centrist acceptance speech of four years ago.

“Times have changed and so have I,” Obama declared at one point.

But this is a party that still shares the same basic paradigm as the Republican Party, this story of American exceptionalism, protected by noble military “heroes” and guided by altruistic virtues, working within an economic system that can just keep growing and expanding the prosperity of US citizens indefinitely – the kind of rhetoric that still drove the crowd to a jingoistic chant of “USA, USA, USA!” at one point.

Yet it was a crowd where not a single person in the local hall applauded or cheered for this line by Obama: “Our country only works when we accept our obligation to each other and future generations.” He’s right, but he’s also been running the country in a way that robs from future generations in many realms (debt, infrastructure, global warming, energy, education, etc.) and doesn’t address our obligation to the protesters out front and the valid perspective that they represent.

“There are many shades of blue in the Democratic Party. We’re all blue,” Jung told me.

Perhaps that true, because I felt a little blue coming away from this event, but maybe not in the sense that Jung intended.

Perspective and proportion

46

steve@sfbg.com

In the eyes of his critics, suspended Sheriff Ross Mirkarimi may never be able to recover from the portrayal by prosecutors and Mayor Ed Lee that he abused his wife, intimidated her with threats to use his power to take custody of their young son if they divorced, and used her and his campaign manager to try to dissuade witnesses and thwart a police investigation.

The tearful video of his wife, Venezuelan actress Eliana Lopez, displaying the bruise on her arm, and the fact that Mirkarimi pleaded guilty to a misdemeanor false-imprisonment charge in connection with the incident are all these critics need to condemn him. Indeed, it was all that Lee relied on when he suspended Mirkarimi without pay and launched unprecedented official misconduct proceedings to remove him from office.

But now that the Ethics Commission has gotten through the substance of its inquiry — and past the tedious work of creating from scratch systems and standards for gathering evidence and evaluating whether it warrants an elected official’s removal by the mayor — the testimony has told a very different story of what really happened.

Accusations of witness dissuasion (which had been one of three original criminal charges Mirkarimi faced before agreeing to a lesser plea deal) and abusing his official position haven’t been supported by any direct evidence or testimony, and as the hearings wore on, Deputy City Attorneys Peter Keith and Sherri Kaiser were looking increasingly vindictive as they fruitlessly pursued those angles with witnesses who seemed credible.

There is also no direct evidence that the abuse was anything more than a moment of frustration and bad judgment at noontime on Dec. 31, when Mirkarimi grabbed Lopez’s arm as she tried to walk away from their heated argument about divorce child custody, and she yanked it away, eight days before his swearing in as sheriff.

Whether that incident and its aftermath meets the City Charter’s broad and untested definition of official misconduct — including “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officials” — will be up to the interpretation of the Ethics Commission, which has now accepted all the evidence that it has deemed relevant and credible. All that remains is the fight over its “finding of fact” at an Aug. 16 hearing and its subsequent recommendation to the Board of Supervisors, which could begin considering the matter in September.

There won’t be an inquiry into whether Mayor Lee committed perjury on June 29, as outside witnesses said he did on two separate issues. The commission July 19 rejected the argument by Mirkarimi’s attorneys that Lee’s alleged lies under oath would cast doubt over his reasons for launching these unprecedented proceedings and the discretionary judgment he exercised. Commissioners decided that was a tangential issue.

In the final hour of the commission’s laborious work in whittling down the voluminous evidence that the city has presented in this case — which both sides and the commission openly acknowledge will likely be considered by the courts as well as the board — it also made deep cuts into the written testimony of attorney Nancy Lemon, a domestic violence expert who drew damning conclusions about Mirkarimi based on how “batterers” typically behave.

That’s been a big part of the city’s case, reducing Mirkarimi down to a two-dimensional batterer whose every action can be predicted by that distinction, from the manner in which he relinquished his weapons to police to the reasons why Lopez has resisted cooperating with efforts to charge her husband with crimes and remove him from office.

Lemon’s testimony was based almost solely on second-hand descriptions of life in the Mirkarimi household in a 22-page written declaration by neighbor Ivory Madison, who was also the only witness that Lee said he spoke to before removing Mirkarimi from office. But most of Madison’s incredible and fantastical narrative — which painted Mirkarimi as a monster who repeatedly abused Lopez and their son and controlled every aspect of their domestic life, right down to what and whether they ate — had already been discredited and disallowed by skeptical commissioners in June.

“I was disappointed by the content of Ivory Madison’s declaration. A first-year lawyer should know that much of it is inadmissible and it should not have been given to us,” Commissioner Paul Renne told Keith in June. Renne called the declaration “clearly hearsay, clearly having the intention of poisoning the well of this hearing.”

Keith apologized and offered little resistance to much of the declaration’s removal, but the city has nonetheless continued to rely on the second-hand accounts of Madison and another neighbor, Callie Williams, in its descriptions of Mirkarimi’s conduct and the questioning of witnesses.

But that hearsay evidence and speculation was countered on July 18 and 19 with the extended cross examination of two key witnesses in the case: Lopez and Mirkarimi campaign manager Linnette Peralta Haynes, a woman with domestic violence training who Lopez reached out to on that pivotal day of Jan. 4 when Madison called the police. Each woman spent more than three grueling hours each on the stand, questioned by city attorneys and commissioners — and they painted a very different portrait of the events than Lee and Madison had.

As for Madison — having had most of her testimony stricken from the record, and with Lopez testifying about Madison’s sudden zeal for going after Mirkarimi and involving his political opponents in that process — Mirkarimi’s team decided not to call her to the stand for live cross-examination. Attorney Shepherd Kopp told reporters, “I think the neighbor’s testimony is suspect at best.”

The go-between

Haynes was central to the city’s allegation that Mirkarimi dissuaded witnesses and sought to thwart a police investigation. Phone and electronic records revealed that she communicated with both Lopez and Mirkarimi many times on Jan. 4, the day Mirkarimi learned that his wife had been confiding with neighbors about the Dec. 31 incident and that Madison had broken that confidence and called the police.

The city’s apparent theory was that Haynes acted as Mirkarimi’s agent in trying to cover up the incident and do damage control, including coaching Lopez on what to say to Madison and Williams.

But the city has never had any evidence to support its theory, and this was its first chance to question Haynes, who had been at the end of a high-risk pregnancy and resisted cooperating with the investigation.

Yet despite Kaiser and commissioners grilling Haynes for more than three hours — twice as long as she had told the commission that she would need — no smoking gun emerged. Haynes seemed calm and consistent as she described giving Lopez emotional support and probing to ensure that she wasn’t in danger. Kaiser fumbled through technical difficulties and maintained an accusatory and belittling tone even as the answers she was receiving seemed to destroy her line of questioning.

“I think the house of cards that mayor has been trying to establish about witness dissuasion was demolished by Linnette Peralta Haynes, who was absolutely credible,” Mirkarimi attorney Shepherd Kopp told reporters after the hearing.

Haynes has a background in domestic violence, undergoing a 40-hour certification training in the mid-90s when she went to work for a domestic violence center in San Mateo for almost two years, then later helping develop and teach a domestic violence curriculum for the jail in San Francisco.

She’s familiar with the Power and Control Wheel — the basis for many of Lemon’s conclusions — which indicates how physical abuse can be connected to other forms of abuse, such as emotional, verbal, and sexual abuse. It was with this background and training that Haynes questioned Lopez about whether she was in danger and being abused when she got an unexpected call on the morning of Jan. 4.

“She let me know she had an argument with Ross and wanted to talk to me,” Haynes said, later answering another question by saying, “She told me she was really worried about custody issues and she was talking to a friend who was an attorney.”

That friend turned out to be Madison, who Lopez maintains had represented herself as an attorney who would keep their conversation and the video they made of her injuries confidential, to be used only in the event of a custody battle. The city has sought to cast doubt on that claim — which the court rejected in Mirkarimi’s criminal case when it admitted the video as evidence — implying that Madison was simply a concerned friend and the attorney argument was developed weeks later.

Haynes said she asked Lopez whether there had been any prior incidents of physical abuse, whether Lopez felt unsafe, and whether she had been subjected to other forms of abuse — defining each form for Lopez — and that she was told “no” to each question.

“I asked if she thought she was in danger and she said no,” Haynes said.

Later on Jan. 4, Lopez told Haynes she had made the video: “She told me a friend had helped me do a video just in case I needed it for custody issues…She did tell me that she really wanted to work on her marriage, that she wanted to make to make it work, but that just in case she wanted to make sure she got custody of Theo.”

Lopez later testified that one reason she sought out Haynes was because Madison had suddenly become aggressive in trying to convince her that she was a domestic violence victim and the incident needed to be reported to the police, and Lopez wanted to get the perspective of someone with a background in domestic violence.

“I said, I have a person telling me this, I want your opinion about it,” Lopez testified.

Around 12:30pm that day, when Madison informed Lopez that she had called the police and they were on the way, she frantically called Haynes from Madison’s house and suddenly put the two women on the phone together, which Madison and the city have characterized as a witness dissuasion effort.

Haynes said she was confused when Lopez suddenly handed the phone to Madison: “She said, ‘help me, help me, help me,’ and I’m on the phone wondering what’s going on.”

“[Madison] told me, ‘I’ve been talking to Eliana for several days and I just called the police,’” Haynes said.

Haynes said she asked Madison if she had called any domestic violence agencies or if she just called the police “and she got very agitated” — adopting a defensive tone of voice — and that reaction seemed “fishy” to Haynes.

Asked whether she tried to dissuade Madison from talking to the police, she responded, “I told her she should maybe talk to her friend about what she wants.” She said that she could hear Lopez telling Madison, “This is not what I want, this is not what I want.”

So Haynes said she tried to extricate herself from the situation: “I told her I really think you need to get off the phone, talk to Eliana, and respect her.” And the phone conversation ended with Lopez getting back on the line and telling Haynes to call Mirkarimi to let him know what was going on.

But Mirkarimi was busy and not answering his phone, prompting Haynes to text at one point that he needed to answer ‘so I can protect you.” What did she mean by that, Kaiser asked.

“My thinking was that something sounded fishy, something wasn’t right, and they need legal help,” Haynes said.

“Your focus had been on Eliana up until then?” Kaiser asked.

“My focus has always been Eliana,” Haynes responded.

Later, asked about the nature of her repeated phone conversations with Lopez, she denied helping her strategize ways to dealing with witnesses or police. “I was just providing support for her, emotional support,” Haynes said, later adding “I wanted to be present for her.”

The victim

Lopez testified that while the grabbing incident was unacceptable and serious — which she conveyed to Mirkarimi — she didn’t consider herself to be in an abusive environment or in need of outside help, except perhaps the marriage counseling she had been seeking and which Mirkarimi finally agreed to.

“An abusive environment is when those kinds of think happen every day or every week,” she said, maintaining — in the face of repeated questioning — that this was the first and only instance of physical abuse.

“At the end of the day on Dec. 31, I told him, that cannot happen, this is wrong, we need counseling,” she said. “He realized it was wrong and he took it very seriously.”

But she said that Madison went from being a supportive friend and counselor on Jan. 1 to suddenly becoming increasingly insistent that Lopez report the incident to police in the days that followed.

“She started trying to convince me to call the police in that email,” Lopez said, answering a question about a Jan. 2 message from Madison, “but that wasn’t our conversation on Jan. 1.”

Lopez said Madison’s approach got more aggressive. “She said, ‘screw him, I have a lot of friends willing to help you,’” Lopez said, noting that Madison offered her the vacant homes of rich friends and offered to bring in journalist Phil Bronstein, DA George Gascon, Attorney General Kamala Harris, and Lieutenant Governor Gavin Newsom to help her.

“It looked to me suspicious…She was calling Ross’ political enemies,” Lopez said.

When Lopez finally made it clear she didn’t want police involvement, Madison called the police.

“I didn’t expect that my lawyer could call the police on her own. I thought that was my decision,” Lopez said.

Keith tried to tie Lopez’s custody concerns to his status as sheriff, driving at that point with many questions. But Lopez said her concern was that California family courts would favor Mirkarimi simply because he’s an American and she’s from a country that has bad relations with the US.

“In this country, I think he’s in a better position than me,” she said. After he again tried to make it about his official position, she said, “As a sheriff, no; as an American, yes.”

She denied the claim by the city and Madison that it was Mirkarimi who sought to improperly use his position, a key element of removing him for official misconduct. Lopez said her conclusions about Mirkarimi’s advantages in a potential custody battle were the result of conversation that happened much earlier.

“That conversation happened in March 2011. He wasn’t even thinking about running for sheriff at that point,” she said, denying that Mirkarimi ever raised his official position in their custody conversations and claiming the concerns about his power were her own. “He never said that, that was my conclusion of our conversations. He never said, ‘I am a powerful man.'”

Throughout hearings, Mirkarimi’s side has enjoyed strong shows of public support, with many of his supporters wielding signs that read, “I believe Eliana” and “I support Eliana,” both in Spanish and English.

During a recess in the July 18 hearing, Mirkarimi said he appreciated the outpouring of support: “There are scores of people showing their support who think this has gone way too far.”

 

Gascon comments on Lee perjury allegations

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Luke Thomas from Fog City Journal showed up at a press conference District Attorney George Gascon was holding on another topic, and threw in a question about the allegations that Mayor Ed Lee lied under oath before the Ethics Commission. Gascon’s comments were, as I would expect, pretty well couched in political-DA language, but the man who initially filed the domestic violence charges that set off this legal episode came down clearly on the side of having Ethics investigate further:

Luke sent me a transcript of Gascon’s full remarks, to wit:

“I think that the first thing that we have to do is we have to allow the Ethics Commission to continue what they’re doing. This is an ongoing hearing by the Ethics Commission. The voters of San Francisco, through the Charter, gave the Ethics Commission a tremendous amount of power — they wanted a very robust process. The Ethics Commission has the ability to call witnesses and put witnesses under sworn testimony and I think it is appropriate for the Ethics Commission to continue to inquire into this. Once they have completed the process, we will evaluate and, if appropriate, we will move accordingly. If the evidence surfaces that we have sworn testimony to indicate that perjury has taken place then we will certainly evaluate whether that will be appropriate to prosecute. At this point, we need to let the Ethics Commission do its work.”

I got in touch with Gascon’s press person, Stephanie Ong Stillman, and she confirmed that the DA thinks right now Ethics ought to be handling this:

“We don’t want to interfere with the Ethics Commission’s ongoing process.
All we know is what’s being reported in the newspapers.  These allegations
arose in the context of an ongoing Ethics Commission hearing, therefore the
Ethics Commission is the most appropriate body to look into this matter.”

Doesn’t sound like Gascon is eager to launch his own inquiry. But he’s at least interested in hearing what the key witnesess have to say — and he seems to agree that they should be placed under oath.

In fact, Gascon seems to be saying that he will look to Ethics to conduct the initial investigation — which just puts more pressure on the commissioners to allow Mirkarimi’s lawyers to put Walter Wong and Christina Olague on the stand.

I wonder if Lee is starting to regret setting off this whole spectacle. If he’d just demurred and allowed the voters to weigh in with a recall election, he could have avoided what may be a costly political mistake.

Oh, and by the way: Since the Chron made a huge deal out of Ivory Madison’s sworn statement — much of which was tossed out as inadmissible — it’s worth reading the entire statement of Eliana Lopez, which is posted here.

If Mayor Lee lied

219

What’s going to happen to Mayor Ed Lee?

That’s the big question after a series of news reports have suggested that the mayor was less-than truthful under oath in his statements to the Ethics Commission. If he actually lied on the stand, that would be considered perjury, which is a felony.

But the reality is that the mayor’s not going to jail. First of all the District Attorney’s Office would have to investigate and file charges — and does anyone really think this DA, George Gascon, is going to subpoena Walter Wong and demand that he talk under oath about his interactions with Lee (who is a close friend)? I think Gascon ought to do it; there’s clear evidence that a crime may have been committed, and the public has a right to know about it, but I suspect that will never happen.
And even if the DA pushed, and Wong told the truth, and the truth contradicted the mayor, would a jury believe Wong over Lee?

It’s really hard to prove perjury. Maybe one of Lee’s staffers talked to Wong and the mayor wasn’t directly involved. Maybe the recollections of the two men have faded in the past few months. Maybe the mayor’s defense would be able to throw up enough chaff that nobody in the courtroom could figure it out.

So it’s not going to be about a criminal case against the mayor. But the revelations of what’s gone down here go far beyond any possible perjury indictment.

For starters, Ross Mirkarimi’s lawyers have every right and responsibility to demand that the Ethics Commission members hear from Debra Walker, Walter Wong, and — I would argue — every member of the Board of Supervisors. Here’s why:

The crux of Mirkarimi’s legal case at Ethics is that the mayor had no grounds to remove him from office — and that Lee never gave Mirkarimi due process or a chance to explain himself. The way the suspended sheriff tells it, the mayor never asked for an explanation of what happened that New Year’s Eve, never tried to talk to Eliana Lopez — never, in short, did any investigation into the incident before deciding the file misconduct charges (except for talking to Ivory Madison).

The way the mayor tells it, Mirkarimi refused to provide an explanation.

That distinction is critical, and the only basis for deciding what happened is for the judges — the commissioners — to use their best information and judgment about who’s telling the truth.

In other words, the mayor’s credibility is central to the entire case.

So if there’s any evidence that Lee lied about his discussions with Walter Wong or about whether he talked to any supervisors, then the commissioners would have the responsibility to consider that when evaluating the rest of his testimony. If you can’t believe everything he said, can you believe anything he said?

Some commissioners may argue that it’s not their business to determine if the mayor perjured himself, and on one level, that’s true — Ed Lee isn’t on trial here. But his credibility either makes or breaks the case. So the panel needs to hear from witnesses who can address that question.

Then there’s the much larger, more disturbing possibility that the mayor sought to influence (or might have been in a position to influence) members of the Board of Supervisors, who will be sitting as the final judges of Mirkarimi’s fate.

There’s a reason that the City Attorney’s Office has advised board members not to talk about the case. They’re sitting in a judicial role, and they can’t legally fulfill that obligation if there’s any indication they’ve already made up their minds. And if the mayor has talked to any of them — and there’s any indication at all that anything he said could be seen as seeking to influence their votes — well, in a courtroom you’d call that jury tampering. It’s a little different in a political forum, but still: Any supervisor who had a conversation with the mayor will be under pressure to recuse himself or herself — and every recusal helps Mirkarimi.

It doesn’t matter how many supervisors are in the room, in the country, recused or otherwise unable to vote — the mayor still needs nine to remove the sheriff. Three recusals and the whole thing collapses.

That’s why all of this is so fascinating and potentially explosive.

Oh,and by the way: When Lee set this process in motion, he should have known that he’d be testifying under oath and that anything he said or did might come out. You’d think he’d have been a little better prepared. 

So what’s going to happen to Ed Lee? Legally, nothing. But he may have done serious damage to his own case.

Perjury allegations against Lee gain more support

126

San Francisco Democratic Party Chair Aaron Peskin has confirmed his role in extending a city job offer from Mayor Ed Lee to Sheriff Ross Mirkarimi if Mirkarimi had been willing to resign in March, bolstering allegations that Lee may have committed perjury when testifying under oath before the Ethics Commission on Friday.

But even as more media outlets report the possible perjury (a story we broke first here), which is further complicating the already complicated official misconduct proceedings that Lee brought against Mirkarimi, the Mayor’s Office and key Lee allies have refused to comment on the perjury allegations or the strange circumstances surrounding the alleged bomb threat that temporarily got Lee off the hot seat.

As we reported in this week’s Guardian, Building Inspection Commissioner Debra Walker said Lee was lying when he said that he hadn’t spoken with any members of the Board of Supervisors before charging Mirkarimi with official misconduct. Walker said Sup. Christina Olague told her she had spoken with Lee about the matter, which Olague now denies.

Lee also responded “absolutely not” when asked by Mirkarimi attorney Shephard Kopp whether he authorized Peskin or development consultant Walter Wong, a close Lee ally, “to convey to Sheriff Mirkarimi if he would stop down, you’d get him another job.”

At press time for this week’s article, Peskin was backpacking in the Sierras and couldn’t be reached, but he has now confirmed to the Guardian that he met with Wong at 11:30am on March 19 – just hours before Lee met with Mirkarimi to say he would be removed from office unless he resigned – at Cafe Trieste.

In that meeting, Peskin said Wong asked him to convey to Mirkarimi an offer from the mayor of a job with the San Francisco Public Utilities Commission or the Airport Commission if Mirkarimi would voluntarily resign. Asked whether Wong indicated that he had discussed the offer with the mayor, Peskin told us, “He certainly left me with that impression.”

Mirkarimi refused to accept the offer, insisting on fighting to keep his job, which was one factor in Peskin’s subsequent public statement calling for Mirkarimi to resign. “There were a lot of things that factored into that,” Peskin said of his call for Mirkarimi to step down, although he wouldn’t discuss other factors on the record.

Efforts by both the Guardian and the Examiner to reach Wong have been unsuccessful, and messages to the Mayor’s Press Office on this and related issues also haven’t been answered. But just as Walker has offered to do, Peskin said he’s willing to testify under oath if asked.

“I am prepared, if subpoenaed, to tell the truth, the whole truth, and nothing but the truth,” Peskin told us.

Lee hasn’t had any public events or made any public comments on the matter since the scandal broke on Friday. The other unanswered mystery is why Lee was whisked from the hearing room just 15 minutes into his testimony, shortly after making the statements that Walker alleges amounted to perjury.

As we reported, neither the SFPD nor the Sheriff’s Department ordered the room evacuated, meaning that decision must have been made by someone within the Mayor’s Office. Press Secretary Christine Falvey’s last statement to the Guardian, on July 2, said, “Again, the mayor’s office did not recess the meeting. I still have to refer you to the Police Department which maintains Mayor Lee’s security or the Ethics Commission about the decision to recess the meeting for (I believe) about 90 minutes.”

Yet neither body seems to know who made the call, and follow-up questions asking the Mayor’s Office to disclose any information they have about that decision have gone unanswered. District Attorney George Gascon — whose office would need to pursue the perjury allegations considering the city’s official misconduct rules don’t apply to the mayor — also didn’t return our call asking generally how allegations of this fashion should be handled.

The official misconduct proceeding continue in front of the Ethics Commission on July 18 and 19 when Mirkarimi’s wife, Eliana Lopez, is scheduled to testify. But that has also been complicated by the Mayor’s Office’s refusal to authorize payment for a plane ticket for Lopez to return from her native Venezuela to testify. Mirkarimi and his legal team say they can’t afford to pay for that plane ticket after Lee suspended Mirkarimi without pay.

Supervisors dominate DCCC race, but key newbies join them

5

“I just stopped by on my way to finish campaigning,” Sup. David  Campos told me at the Bike Coalition’s 20th Annual Golden Wheel Awards (more on that tomorrow), the first in more than a majority of the Board of Supervisors at the event.

Campos was campaigning for reelection to the Democratic Party County Central Committee (DCCC) and the polls were still going to be open for almost two more hours. Perhaps he could still reach the one in four registered SF voters who bothered to weigh in on this lackluster election.

“There was nothing really on the ballot that excited voters,” Campos said. “Hopefully November will be different.”

Tonight’s returns — for leadership of a local Democratic Party that hopes for more  voter engagement in the fall races — showed that Campos and fellow supervisors David Chiu, John Avalos, and Scott Wiener expectedly topped the pack, with Bevan Dufty, who moved from the board to the Mayor’s Office this year, in fifth place. And longtime former legislator Carole Migden’s sixth place fininish in the 14-seat eastside DCCC race helped show that it was mostly about name recognition.

But there were a couple of first-time candidates in the winning field: Matt Dorsey and Zoe Dunning, who finished 8th and 12th respectively. Both played key roles in recent LGBT politics: Dorsey as the City Attorney’s Office spokesperson during the same-sex marriage saga of the last eight years, Dunning as a poster lesbian in ending the US military’s “don’t ask, don’t tell” policy.

“I think Zoe and Matt are the ones to watch,” DCCC member Alix Rosenthal told me at the Buck Tavern as she celebrated her reelection, after campaigning hard for both the progressive and women’s slates.     

Unprompted, Dorsey returned the recognition when I stopped by his party down the street at Churchill. “Alix and Rafael [Mandelman, who organized the progressive slate and finished 10th, right after Sup. Malia Cohen] ran other things, so it’s apples and oranges,” Dorsey humbly said of the two former Dist. 8 supervisorial candidates he bested, when I asked about his strong finish.

Dorsey ran an aggressive campaign, targeting high-turnout precincts and working hard to get the full spectrum of political endorsements (and posting all his answers to each group online), what he called “Moneyball politics.” And it translated into an impressive finish for a freshman candidate but longtime politico.  

“Right now, I’m looking to get back to the gym after a year and a half of campaigning,” said Dorsey, the spokesperson for the mayoral campaign of City Attorney Dennis Herrera, who was at the party, along with District Attorney George Gascon. 

Dorsey and his fellow Guardian/progressive slate members did better in Eastside Dist. 17 than Westside Dist. 19, taking 10 of 14 seats compared to four of 10, leaving a near-equal balance with the moderate Democrats once the seats of elected officials are factored in.

But if the spirits count for anything, Dorsey told me he ran especially hard to earn the seat that outgoing DCCC Chair Aaron Peskin appointed him to when long progressive activist Michael Goldstein died last year.

“Knowing that it was his seat,” Dorsey said, “motivated me to work harder.”

Ethics Commission opens the long and complex case against Mirkarimi

26

Tonight’s first Ethics Commission hearing on the procedures and standards that will govern the official misconduct proceedings against suspended Sheriff Ross Mirkarimi showed just how complex, contentious, and drawn out this unprecedented process will be.

The commission made no decisions other than setting a schedule for both sides to submit a series of legal briefs and responses over the next five weeks, on which the five-member appointed body will begin making procedural decisions during a hearing set for May 29.

Deputy City Attorney Peter Keith, who is representing Mayor Ed Lee and leading the city’s prosecution, took an aggressive tack in criticizing Mirkarimi for refusing to be deposed by him and announcing Lee’s intention to add that unwillingness to cooperate to the formal charges against Mirkarimi.

But Mirkarimi’s attorney Shepherd Kopp called that threat “beyond the pale. We have a legitimate legal question we need straightened out and we won’t be bullied.” That issue involves what rights and obligations Mirkarimi has in this process, which the commission has yet to establish. 

Kopp complained that the mayor and City Attorney’s Office are usurping the commission’s charter-mandated role as the investigative body in official misconduct cases by issuing subpoenas for evidence and witnesses before the rules for the hearings have even been set or Mirkarimi has been presented with the evidence against him.

“Until we understand what the mayor’s evidence is, we have no way of preparing a defense,” Kopp said, adding that, “The charges were brought before the evidence was in the mayor’s possession.”

He called for the commission to take control of the investigation and establish discovery rules rather than letting the Mayor’s Office act on its own. “We feel like we have one hand tied behind our backs,” he said. “Whatever the rules are, they ought to apply to both sides.”

There’s very little that Kopp and Keith agree on at this point. Kopp wants the Ethics Commission vote to be unanimous if it recommends removal, as with juries on criminal cases, but Keith argues that a simple majority will do. The Board of Supervisors will make the final decision, with nine of 11 supervisors required to remove an official. Kopp says the standard of guilt should be “beyond a reasonable doubt,” but the city will likely argue for a lower standard, such as preponderance of evidence.

Kopp wants the commission to establish the standard that official misconduct must be related to the sheriff’s official duties and have occurred while he is in office, but Keith indicated that the events of Jan. 4, when the police began to investigate the domestic violence incident and before Mirkarimi was sworn in as sheriff, are an important part of their case.  

Keith noted that Mirkarimi could demand a closed door hearing, as the courts have agreed that law enforcement officers are entitled to, but Kopp told the commission, “We do not intend to insist these hearings should be private. We want them to be public.”

There were even internal differences within the city. Ethics Commission Executive Director John St. Croix last week wrote a memo recommending that testimony from witnesses be in written form, but the City Attorney’s Office today wrote a last-minute memo arguing the need for live testimony and cross-examination of witnesses.

“A live hearing is going to better serve the goals of the commission,” Keith argued, calling for it to be “something of a mini-trial.” Kopp agreed with that characterization, calling it “akin to a criminal proceeding,” and with the need to allow live testimony: “I think it will be unavoidable for at least a couple witnesses.”

Commission members asked a number of questions to both sides, but with such a broad range of issues still to be decided, they seemed to be only tentatively scratching the surface and unsure how to proceed. But there were a couple questions from Chair Benedict Hur that were illuminating.

“Does the mayor dispute that he has the burden of proof here?” Hur asked Keith, who replied, “No.”

Keith cited Mirkarimi and his wife, Eliana Lopez, as two witnesses who will likely be the subject of live testimony and vigorous cross-examination. But when Hur asked Kopp whether he would object to the commission compelling testimony from Lopez, he said that’s connected to a variety of outstanding procedural issues and he wouldn’t be able to answer “for quite some time.”

Indeed, both sides have indicated that they would need at least 30 days to prepare their cases once all the procedural and evidentiary issues are resolved, pushing the hearing back until at least July, although all sides say they want the matter resolved as quickly as possible.

“The longer this drags out, the person being most prejudiced is the sheriff,” said Commissioner Paul Renne, who was appointed by District Attorney George Gascon in February and who opened the hearing by admitting having given a $100 campaign donation to Chris Cunnie, who ran against Mirkarimi. Ironically, it was Renne who seemed most taken aback by Keith’s threat to add Mirkarimi’s refusal to cooperate with the city’s prosecution to the charges against him.

But Kopp said Mirkarimi will be happy to offer his testimony and comply with requests for documents once the commission establishes the rules and procedures and exerts its authority over the proceedings: “If you think he’s got to cooperate and turn it over, we’ll do it.”

The first city brief is due April 30, but the most illuminating deadline will likely be May 7 when the Mayor’s Office must submit its proposed list of witnesses and a summary of their expected testimony, which should be an early indicator of the strength of their case against Mirkarimi.