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Criminal Justice

Failure to Disclose Evidence in Murder Case Led to Full Review of DA Brooke Jenkins’ Work Under Chesa Boudin

Written by Michael BarbaPublished Aug. 01, 2022 • 9:52am
The District Attorney of SF Brooke Jenkins during the ‘Peaceful Garden’ Block Party on Saturday, July 23, 2022 in San Francisco, Calif. Paul Kuroda for The Standard

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Months before Brooke Jenkins was sworn in as San Francisco’s new district attorney, prosecutors in the office combed through her past work after acknowledging a “clear failure” to disclose evidence in a murder case she oversaw, newly obtained records show.

Jenkins served as the lead attorney prosecuting a man for a fatal stabbing in 2019 at Fisherman’s Wharf. There are no indications she intentionally withheld evidence or committed misconduct, but Jenkins left her job late last year without giving the defense a heap of evidence that included handwritten notes from a police inspector and video footage, according to emails and court records obtained by The Standard. The notes contained leads to potential witnesses who could have helped the defense.

The new evidence, which did not emerge until the eve of trial after another prosecutor took over the case, prompted Jenkins’ former supervisors to dismiss the case and restart the prosecution. The issues also spurred those supervisors—two veteran prosecutors who both predated Boudin’s time in the office by roughly 20 years—to launch an internal review of all of Jenkins’ past work to determine whether similar problems existed in her other cases.

The records raise questions about how Jenkins, now the city’s top cop, conducted herself as a line attorney assigned to prosecute some of the most serious crimes in San Francisco. 

Jenkins quit the office to become a spokesperson for the recall of her former boss Chesa Boudin, and Mayor London Breed appointed her district attorney in early July. She now wields tremendous power over the city’s criminal justice system and how cases are administered.

In a statement, Jenkins admitted she made an error in the 2019 murder case, but defended her record as a prosecutor who has never been found to have committed misconduct throughout her entire career.

“I hold myself and everyone in our office to the highest ethical standards,” Jenkins said. “The public deserves and expects we operate with integrity to advance justice, and our office delivers on that promise daily.”

A spokesperson for Jenkins’s office, Randy Quezada, said in a statement that “nothing ever came to light of the review” launched by Boudin’s office. 

There’s no indication the review yielded any further issues. 

‘A Significant Problem’

In March 2019, Bruce Penn stabbed another man to death with a machete during a fight near the iconic Fisherman’s Wharf sign. He argued that the killing, which was captured on video, was done in self-defense. 

Jenkins, whom Boudin promoted to handle homicide cases soon after taking office, was assigned to the case in April 2020. While other prosecutors worked the case before and after Jenkins, she handled the matter longer than any other attorney in the office. A year and a half passed before she quit in September 2021 to campaign for the recall against Boudin.

It wasn’t until the eve of trial in November last year that Andrew Clark, a prosecutor who took over the case from Jenkins, disclosed more than 200 pages of new evidence to the defense, according to Kleigh Hathaway, an attorney with the Public Defender’s Office who represented Penn.

That evidence included three pages of handwritten police inspector’s notes containing leads to eight potential witnesses, as well as footage of the stabbing from a different perspective that might have helped the defense identify other witnesses, Hathaway said.

Boudin and managers in his office decided to dismiss the case soon after, citing a “failure to complete discovery.” Discovery is the legal term for the process of turning over evidence. The office can only dismiss a felony case once, and a second dismissal prohibits further prosecution.

David Merin, a chief attorney who oversaw murder cases, put the homicide team “on notice there may be discovery issues with Brooke’s remaining cases and they should audit Brooke’s reassigned cases for discovery issues,” according to an email he sent Nov. 18.

Former homicide head Heather Trevisan acknowledged the error the next day in an email directing her team to conduct the review.

“As some of you may know, there was a significant problem with the discovery in one of Brooke’s cases on the trial calendar and I had to dismiss it today among [much] yelling by the defense,” Trevisan wrote. “Regardless, it was a clear failure of discovery on our part. To that end, we must now complete a [discovery] check on all of her cases.”

In February of this year, Hathaway conceded that she didn’t know whether Jenkins delayed the disclosure intentionally. But she was suspicious.

“It is hard not to assume the worst in this situation,” Hathaway wrote.

Jenkins disputes not disclosing some of the 200 pages of evidence that Hathaway said she did not turn over. In regards to the additional footage, her spokesperson, Quezada, said it was “less comprehensive” than the video Jenkins did turn over. 

At the same time, Jenkins admitted her shortcomings in the case.

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“​​I made an error during discovery, the judge did not find that the omission was intentional, or that any misconduct had occurred, and the case continued forward,” Jenkins said in a statement. “I find it odd that nearly a year after I resigned from the office that my integrity is now being questioned because of a mistake that had no material impact on the case.”

Quezada said that instead of dropping the case and recharging Penn, Boudin’s office could have argued that the previously undisclosed evidence was not significant enough to harm the defense and require a dismissal.

The dismissal and review of Jenkins’ work came less than a month after she publicly spoke out against Boudin.

Penn ultimately pleaded guilty to voluntary manslaughter, Hathaway said, and was released from County Jail with credit for time served.

‘Win at All Costs’

It’s not uncommon for prosecutors to disclose evidence at the last minute, even though a 1963 Supreme Court ruling in Brady v. Maryland broadly requires them to hand over evidence that could help acquit a defendant.

Legal experts told The Standard that delays or failures to turn over evidence, a process known in the legal world as “discovery,” is a chronic and widespread problem in the U.S. criminal justice system. Discovery issues can lead to defendants languishing in jail as their attorneys are unable to fully defend them, and they can also result in convictions being overturned on appeal.

Ken Clayman, the former public defender of several Southern California counties, said some prosecutors habitually delay turning over evidence because judges don’t enforce the rules on discovery.

“Some of them just don’t want to do it,” Clayman said, “and it’s win at all costs.”

Clayman said he was “terribly bothered” by the situation described by The Standard.

“I think the public should be concerned,” he said. “I hope that they would be very, very concerned about it.”

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Michael Barba can be reached at [email protected]


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