05/05/2010

San Francisco cases at risk over officer histories

Officers didn't disclose their histories of misconduct before testifying

By Terry Collins
Associated Press

SAN FRANCISCO — San Francisco authorities on Tuesday were trying to determine whether prosecutors failed to disclose to defense attorneys the criminal histories or misconduct records of police officers who testified at trials.

Public Defender Jeff Adachi said the potential lapse suggests "unethical behavior" that could affect hundreds of cases. District Attorney Kamala Harris disputed Adachi's claims yet acknowledged there is a problem.

Last month, Chief Assistant District Attorney Russ Giuntini told Police Chief George Gascon in a letter that there were more than 30 officers whose prior backgrounds would have to be disclosed to defense attorneys and they have yet to see any information about it.

But the San Francisco Chronicle reported on Tuesday that a more comprehensive review later turned up about 80 officers whose records could be questioned.

But Gascon and Harris, at a hastily arranged news conference, could not confirm or deny that figure. Gascon even said the initial figure of 30 was preliminary.

"Quite frankly, I think it's very irresponsible for people to start throwing numbers out there," Gascon said. "I don't know what the numbers are yet. The district attorney does not know what the numbers are yet. We still don't know what the numbers are yet."

State law requires prosecutors to alert the defense when any witness, including a police officer, has been arrested or convicted of crimes or has been accused of misconduct.

Gascon said by law, police cannot check police personnel criminal records. The state Department of Justice must check officers records before giving them to the DA's office, he said.

Neither the DA's office nor the police department had formal policies on how they would disclose witness information.

Harris said last month that her office has implemented a new system and Gascon said Tuesday that his department was developing one. Gascon said he noticed there were problems with disclosing information last fall, but it became more apparent as the city's crime lab scandal surfaced.

"We are in the process of fixing this system," Harris said. "But even the best policy relies on close cooperation."

This latest episode in San Francisco comes as prosecutors have dropped more than 600 criminal cases since March after a crime lab technician acknowledged skimming cocaine evidence she was testing.

Retired lab tech Deborah Madden, 60, remains under investigation. She has not been charged.

Steven Clark, a Bay Area defense attorney and former prosecutor, said Tuesday that the new allegations underscore an obvious "disconnect" between the police department and district attorney's office.

"There needs to better communication between those two law enforcement entities," Clark said. "Clearly, there's a big problem here."

Clark added that by law, "the final burden is on the prosecution to obtain this information to ensure that justice is dispensed."

Adachi, whose office handles the majority of felony cases in the city, said Tuesday his staff had not yet been notified by prosecutors or police of the problem.

However, if true, Adachi said, the failure to come forward with the information on officers' criminal or misconduct records could threaten hundreds, if not thousands of cases.

"If this evidence is true, it is explosive and it will have a tremendous impact on criminal trials and cases that we have handled involving these officers," Adachi said. "This is either a systematic failure, which would suggest gross malfeasance, or unethical behavior if they knew that these police witnesses had prior convictions."

Adachi has sent a letter to Harris asking for the number of officers involved.

"I think it's irresponsible to incite fear especially when there's no credible information about the number of officers that are involved or the number of cases that are involved," Harris said.

Adachi called the situation unfortunate because the scenario is being played out as "people getting out of jail for free."

"That's not what this is all about," Adachi said. "This is about ensuring everyone, including prosecutors and police, plays by the rules."

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