San Francisco District Attorney Brooke Jenkins on Monday lambasted a Superior Court judge who she said released a suspected fentanyl dealer ahead of his trial.
But later Monday morning, the Sheriff’s Department, which manages the county jail, said 34-year-old Francis Rivas-Garay was still in custody, despite being released by the judge on the drug charges and assigned to case management.
The district attorney’s office did not immediately respond to questions about why it did not mention in its statement that Rivas-Garay was still in jail.
Rivas-Garay was arrested Wednesday after allegedly being busted by an undercover police officer who bought 1.5 grams of fentanyl from him in SoMa. Police said Rivas-Garay had an additional stash of 54 grams of fentanyl and 19 grams of methamphetamine at the time of his arrest.
He was charged with three felonies, including possession for sale of controlled substances, sale and giving away a controlled substance, and a methamphetamine-related dealing offense.
In a statement, the district attorney’s office said it asked Judge Sylvia Husing to keep Rivas-Garay in custody before his trial because of the “public safety risk he poses.” Instead, Husing released Rivas-Garay on his own recognizance — meaning he did not have to post bail.
Naming a judge in a critical press release is a highly unusual move and underscores what many believe is a fraught relationship between the prosecutor’s office and judges.
Rivas-Garay pleaded not guilty at his arraignment Friday.
Jail records show that police last year booked Rivas-Garay on suspicion of drug dealing offenses at least four times, in April, October, November, and December.
Husing confirmed that she covered arraignments in court Friday but said she did not remember handling Rivas-Garay’s case.
“We had a really busy calendar,” the judge said. “We get stacks of these cases from pretrial services.”
Husing contended that the district attorney’s statement likely does not tell the full story.
“There would have been terms and conditions on these releases,” she said. “There’s a wide range of things that happen when a person is arraigned normally; it’s not an, ‘Oh, you’re released, go and sin no more.’ It would have been highly unusual that he would’ve been released without conditions.”
In a statement, Deputy Public Defender Tatiana Howard said Rivas-Garay has no prior convictions and has never missed a court date.
“A pretrial release assessment recommended that he be released, and the judge agreed,” Howard wrote. “This will allow him to keep his job while charges are pending.”
A second statement from the public defender’s office, which arrived at 3:38 p.m., said Rivas-Garay is not on probation, as previously reported by the Sheriff’s Department.
“His extended time in custody appears to be due to an error by the SFPD. His attorney intends to clear up this issue when the court reopens tomorrow,” a spokesperson said. The San Francisco Police Department was contacted for comment but did not immediately respond.
Update: An early version of this article said Rivas-Garay was being held in jail because of a probation violation per the Sherriff’s Department; the public defender’s office later said this was incorrect and he was being held in jail due to a police error.