On January 9, 2015, four men were shot and killed inside a car in the Lower Haight near Laguna and Page streets. Police eventually arrested Lee Farley Jr. for the killings and were investigating several other suspects. Six years later, the case hasn’t gone to trial, and those other suspects have all died as a result of gang-related violence. The case languished under former San Francisco District Attorney George Gascón, and it continues to languish under his successor, Chesa Boudin.
Farley’s attorney, Peter Fitzpatrick, told KTVU’s Evan Sernoffsky the district attorney’s office shares some responsibility for dragging things out — there have been three different prosecutors assigned to the case since Boudin took office. The current prosecutor has never tried a murder case. For his April 15 update on the killings, Sernoffsky looked at jail records and discovered that of the 814 inmates in jail 680 are unsentenced and awaiting trial. He also pointed to a report by the state judicial council, which shows San Francisco adjudicates just 43 percent of felony cases in under a year; statewide, almost 80 percent of cases are complete in that timeframe.
EXCUSES, EXCUSES
On May 15, two men were killed and a third was wounded in separate, back-to-back shootings near Potrero Hill. Police later identified 32-year-old San Francisco resident Robert Newt as the suspect. A check of his record revealed Newt had been arrested just weeks earlier, on April 21, for charges including felon in possession of a firearm, felon in possession of a loaded firearm, felon in possession of a concealed firearm, person prohibited from owning or possessing a firearm, and possession of an assault weapon — an untraceable AR-15-style rifle with no serial number known as a “ghost gun.”
Since 2018, Newt has been arrested six times in various counties on numerous charges, nearly all involving firearms, but in the April 21 arrest Boudin declined to file charges, putting the onus back on police to obtain more evidence and setting Newt free. Boudin spokesperson Rachel Marshall told the San Francisco Chronicle prosecutors wanted the police to obtain DNA or fingerprint evidence “necessary to prosecute the case.”
After reviewing the SFPD incident summary, former San Francisco prosecutor Tom Ostly said, “I would charge on those facts 100 percent. Boudin’s excuses are defense attorney arguments that are inconsistent with the law and facts.” Ostly, who tried 31 cases under Gascón with a conviction rate of more than 90 percent, said Boudin could have kept Newt in custody. “DNA is not necessary to charge Mr. Newt for being a felon in possession of a firearm, or any of the other crimes he was arrested for. DNA may be helpful in proving the charges beyond a reasonable doubt at jury trial, but it is not necessary for rebooking or preliminary hearing. The law says circumstantial and direct evidence are equal. The jury decides what the evidence shows, and cases are proven by circumstantial evidence all the time. Before video and DNA, cases were put in with circumstantial evidence, and new technology did not change the burden of proof. DNA on a moveable object is of limited evidentiary value — it was just an excuse not to charge it. Waiting to get DNA is not something any competent prosecutor would do. It is disturbing that the DA refuses to acknowledge the truth of his failure and instead is trying to gaslight the public and shift blame. It sends the clear message that incompetence will continue.”
Ostly also pointed out that had Newt been charged correctly, he would have been eligible for a variety of services. “Since he was not charged, none of those resources were made available to him, and his destructive behavior continued. The district attorney’s incompetence has also failed Mr. Newt.”
THE BLAME GAME
Just days after the Potrero Hill shootings, Boudin told the Police Commission it wasn’t his fault that Newt went free. “Prosecutors are forced to wait for up to six weeks to get results on critical forensic evidence tests.” he said. “And tragically that’s what happened here. We asked for DNA, we never got it, and now we’ve got two murders on our hands.” But Boudin wasn’t “forced” to wait six weeks for DNA — he gave SFPD until June 2 to obtain it, and in the interim Newt was released.
As Boudin was blaming police in the Newt case, another incident involving a repeat offender hit the news. On May 24, a 22-year-old man named Christopher Cawthorne was shot and killed a block from Oakland police headquarters in broad daylight. Evidence technicians recovered 20 casings in multiple calibers, including rifle and handgun rounds. Cawthorne, a San Francisco resident, had been charged in the June 2020 murder of a 48-year-old mother named Deanna Rice, while on probation for carrying a loaded firearm. Boudin once again cited “lack of evidence” and declined to charge Cawthorne. Less than four months later, Cawthorne was one of the suspects arrested in an “assassination attempt” on a group of men in a Visitacion Valley garage. Despite his outstanding murder charge in the Deanna Rice case, Boudin’s office gave Cawthorne a plea deal and let him go. Now Cawthorne, too, is dead.
“He was a mediocre and unethical defense lawyer. As a DA he is dangerous,” said one former DA who tried cases against Boudin when he was a public defender. “Shootings were up 400 percent in February alone. This is a good example of Boudin lying about crime. He left shootings out of his stats — and look at the consequence of not dealing with those shootings.”
‘COMPLETE CHAOS’
Gregory Mendez, a 20-year veteran assistant attorney who retired this past December, sees Boudin’s lack of management experience and leadership skills as a big part of the problem. Mendez says under Boudin the DA’s office has a backlog of cases and a staff of former public defenders — like Boudin himself. “Conceptually, Boudin and the other 15 public defenders being paid as DAs have one principal goal, and that is to do what they can for the accused. When they joined the DA’s office they didn’t say ‘Now I want to prosecute these people.’ None of them — including Boudin — has ever prosecuted a case. It was bad under Gascón, but Boudin came in and made it worse; the lowest morale I’ve seen, people leaving, no one to try cases. It’s complete chaos.”
In a letter supporting the efforts to recall Boudin, Mendez says, “Superior Court judges presiding over plea negotiations have been rejecting DA offers because they are too lenient, and if accepted, would not hold defendants legally responsible. . .” Mendez also notes Boudin’s misuse of Collaborative Court units, which offer the accused clinical treatment rather than plea deals, trials, and potential jail time. “Instead of following long-established guidelines for determining who should participate in these alternative courts, Boudin refers any and all to these forums and provides those accused of any crime, no matter how violent, the opportunity to sidestep accountability under the auspices of putative recovery.”
In a city where fentanyl-laced drugs are on track to kill 1,000 people this year, Boudin hasn’t pursued a single felony drug dealing case. According to Public Comment SF, suspects booked in 2020 were released the same day or the next day 84 percent of the time. Mendez says Boudin prefers to send dealers to drug court, which is meant for users. “They sit right next to their customers.” Mendez says. “The judge will send dealers to counseling, they don’t show up, and bench warrants are flying around all the time. . .”
COPPING OUT
Another DA, who asked to remain anonymous for fear of retribution, says when Boudin fired most of the experienced prosecutors early in his term, many of the public defenders he replaced them with were put in policy making positions. “They’re getting close to $200K a year for doing nothing but cheerleading for him. He hasn’t even kept his biggest campaign promise of holding bad cops accountable. He likes to say he prosecutes bad cops, but he hasn’t prosecuted a single one.”
In March of 2020, Boudin dismissed charges against two Alameda County sheriff’s deputies who beat car theft suspect Stanislav Petrov so badly they broke bones in his hands and arms — and it was all caught on surveillance video. Oakland attorney Julia Sherwin, who represented Petrov in a 2016 civil rights lawsuit against Alameda County and won a $5.5 million settlement, told the Chronicle “she was stunned” when she learned of Boudin’s dismissal. “This is about as much a slam dunk of a criminal case against law enforcement as you would hope to find,” she said. In November 2020 Boudin promised to refile charges against the deputies, yet eight months later he hasn’t done so. (Editor’s note: the day this column went to print, Boudin refiled the case.)
He blames the pandemic, but colleagues say the real reason is he lacks qualified attorneys. “The case got dismissed because Xochtil Carrion was assigned after Swart was fired; she was completely unprepared and in over her head,” said someone familiar with the case.
Under pressure from late public defender Jeff Adachi, in 2018 Gascón assigned the Alameda County sheriff’s deputies case to top prosecutors Michael Swart and David Ezgar. When Gascón left to run for district attorney of Los Angeles, Boudin entered the race on a platform of holding cops accountable and won. He immediately fired seven attorneys, including Swart. That left Ezgar on the case, but he resigned shortly after. A confidential memo obtained by the Marina Times shows Boudin replaced those seasoned prosecutors with former interns, recent law grads, public defenders, and private defense attorneys. “The people he has hired are not litigators. I know this because they’re the reason I had a 90 percent conviction rate,” says Ostly, who was one of the seasoned prosecutors Boudin fired. “He doesn’t have enough people on staff that know how to put a case together and a trial in; he fired or drove them out. Even if a case is a slam dunk, you need a lawyer that at least knows the basics.”
Boudin’s poor hiring decisions also play a part in why the 2015 Lower Haight killings and other murder cases have been continued, had multiple DAs, or resulted in plea deals. While the prosecutors he fired had tried more than 100 homicides between them, the new hire memo reveals only one person with “homicide” in their resume. She joined Boudin’s staff from the New York District Attorney’s Office, where “she was most recently promoted to Homicide Cadet as an entry position into homicide prosecutions.”
Boudin blames the pandemic for a lack of jury trials, but he should be thankful it gave him more than a year’s worth of excuses. He also touts lower crimes of opportunity, when credit really goes to the pandemic and Mayor London Breed’s stay-at-home orders. As tourists return and residents get back to their daily lives, those crimes of opportunity are already on the rise. With courts ramping back up to full capacity and hundreds of cases looming, Boudin’s lack of experience, hiring mistakes, and inability to lead will be on full display — and he has no one to blame but himself.
E-mail: [email protected]. Follow Susan and the Marina Times on Twitter: @SusanDReynolds and @TheMarinaTimes.
