S.F. judge’s flip-flop on DNA lab mystery memo

Brant Ward / The Chronicle

District Attorney George Gascón has fought against releasing  the memo from a DNA adviser.

A San Francisco judge refused Monday to release a memo from the district  attorney’s office that reportedly is critical of the city’s police DNA lab – an  about-face from his earlier order to turn over the document to the defense in a  cold-case murder prosecution.

Superior Court Judge Charles Haines had ruled last month that prosecutors  must turn over the memo by Rockne Harmon, a former consultant to the district  attorney’s office, along with a second, unidentified document that defense  attorneys had sought. District Attorney George Gascón took the matter to a state  appeals court and lost.

Harmon, who served as a DNA adviser to former District Attorney Kamala  Harris, was reportedly critical in the memo both of the lab and a technician  who works there, Cherisse Boland.

At a court hearing Monday, however, Haines declined to release the memo or  the other document to the defense. Instead, he turned over only the transcript  of a session he had in chambers with Harmon, which was then put under seal.

The judge did not explain his reasoning, saying only that both sides will  understand “what documents I’m not releasing” based on the sealed transcript.

It is unclear whether the documents will eventually be turned over to  defense attorneys representing James Mayfield, accused of a 1976 murder and  rape. The issue may be revisited at a hearing Thursday.

Harmon has said his memo was evidence that must be disclosed to protect a  defendant’s right to attack prosecution witnesses’ credibility. Gascón’s  opponents in today’s election accused him of fighting the disclosure mainly to  avoid embarrassment.

Harmon produced the document after the February 2010 acquittal of two men in  the killing of 32-year-old Byron Smith, a reputed gang leader gunned down in  Visitacion Valley in 2007 by two men on bicycles.

Tony Tamburello, an attorney who represented one of the men, said police  investigators had asked Boland to compare the two suspects’ DNA to genetic  material on the grips of the bicycles. Boland made the matches but did not try  to identify the source of what she called a separate “major DNA profile” on one  grip.

After the jury acquitted, Tamburello complained to then-Police Chief Gascón  and Harris.

Boland, who also worked on the Mayfield case, responded that she had not  compared the third DNA profile to an FBI database of known offenders because it  could have belonged to an innocent person.

Harmon believed that Boland’s approach was flawed and could jeopardize other  cases.

Gascón’s office has maintained that Harmon’s memo is confidential under the  work-product doctrine, which applies to the impressions and opinions of a  lawyer, and that it lacks “Brady material” – evidence that could prove a  defendant’s innocence.


E-mail Jaxon Van Derbeken at  jvanderbeken@sfchronicle.com.

This article appeared on page C – 1 of the  San Francisco Chronicle

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