A trio of legal ethicists have largely rejected District Attorney Brooke Jenkins’ excuses for emailing sensitive documents to a colleague last year, only days before both left the office and joined the campaign to recall DA Chesa Boudin.
Jenkins, then an assistant district attorney, sent an email on Oct. 9, 2021 to fellow assistant DA Don du Bain’s personal account. It contained three police reports regarding Troy McAlister, the serial offender who, while driving intoxicated in 2020, struck and killed two pedestrians. McAlister’s unredacted rap sheet was contained within one of those police reports.
Neither Jenkins nor du Bain were professionally attached to this case. In California, it is a misdemeanor to furnish a rap sheet to someone who is not authorized to receive it. Both Jenkins and du Bain would leave Boudin’s office on Oct. 16 and join the recall effort; in doing so, they discussed the particulars of the McAlister case extensively during the campaign.
Jenkins was paid more than $120,000 for some six months’ work during the recall campaign by an adjunct nonprofit. Following the successful recall, she was, in July, appointed DA by Mayor London Breed. Jenkins hired du Bain back to the DA’s office, as a manager, in August.
“While I was an assistant district attorney, I inadvertently sent these files to a personal email address of another assistant district attorney,” Jenkins said via a statement after Mission Local wrote about this on Wednesday and the Chronicle followed. “I intended to send them to his work email address.”
But where Jenkins sent this material is irrelevant, experts say; rather, the question is why an office short-timer who was not professionally attached to this case possessed and disseminated this material to a fellow short-timer with no ostensible connection to the case.
“There’s a credibility issue here,” said Bruce Green, a Fordham law professor specializing in legal ethics and a former federal prosecutor. “Since she was leaving the office and her colleague was leaving the office and, as far as you can tell, neither of them was working on the case, there’s no evident work-related reason she would’ve sent this to him.”
University of California, Hastings, professor Richard Zitrin adds, “The question is not what email she sent it to, but why is she sending it at all? I can’t think of a legitimate law-enforcement purpose for sending this rap sheet to anyone as she’s about to leave the office.”
Jenkins has launched an “investigation” into the leaking of her emails. She further stated that “these files were never used on the recall campaign, or for any political purposes, and were never disclosed to the public.”
Both Jenkins and du Bain were, as of Oct. 16, 2021, no longer part of the DA’s office and, thereby, “the public.” And, while Green acknowledges that Jenkins denies using the files for a political purpose, he notes that she “hasn’t yet come forward with a plausible explanation” of the legitimate, law-enforcement purpose being served by her obtaining McAlister’s police reports and rap sheet and sending them to du Bain.
“One could clearly draw the inference that she was sending them to him so they could both use it for some political campaign-related purpose after leaving the office,” Green said. Jenkins’ statements “do not explain what her legitimate purpose was, and do not rebut the obviously illegitimate purpose one would tend to infer.”
In addition to Jenkins’ statements, her office put out general statements claiming that her email to du Bain was not illegal and that “Assistant District Attorneys are legally allowed to share case information with each other as authorized by the law.”
“This is spin,” sums up San Francisco defense attorney Marc Zilversmit, a past lecturer on prosecutorial ethics issues. “The question is: Why are they accessing these documents for a case they are not working on? And then sharing the gist of the rap sheet in media comments in support of the recall?”
Green took issue with the DA office’s claims, calling them an “overstatement.”
Yes, assistant DAs are entitled to share files — but it depends on their motivations and the legitimacy of the purpose of sharing those files.
“The statements the DA’s office has made clearly don’t address the central questions,” sums up Zitrin. “What legitimate, law-enforcement purpose was fulfilled by sharing this? She clearly hasn’t answered that.”
The California Attorney General’s office declined to answer questions on the matter: “To protect its integrity, we’re unable to comment on a potential or ongoing investigation.”
In the current climate many readers are willing to overlook overreach by LE & DA groups. The problem is that breaking a law to expedite a “guilty” party can backfire. And….those broken laws might affect someone who is innocent. I have no problem when an innocent human then receives an exorbitant settlement w/ the jurisdiction for the malfeasance of its “protectors.”
Jenkins’ career as top DA so far reads like a cross examination constantly interrupted by overruled “Asked and Answered” objections. There is so much she can’t explain, so much she can’t justify except with obfuscation. Question is whether the jury is sleeping through it. I guess we’ll get our answer sometime after Tuesday as the votes trickle in.
Juvenile records are off limits but I was always under the impression that adult records were public. Anyway it isn’t the offender whose privacy rights if any anyone here cares about but the former DA who would prefer not to have still more evidence as to how soft he was on repeat offenders.
A hit piece masquerading as a “story” meant to demean a DA who actually wants to make SF safer.
Sheesh, we’ve seen this movie before. Chesa cuts a sweetheart deal with his former client, who then goes on to kill two people. Pretty serious stuff.
And the supposed story here is “but her emails!” One DA sending these reports to another DA does not even seem to fall within the penal code section (since both were DAs at the time, it’s not clear that either was “not authorized” to receive it – the article says “it depends on their motivations.” Where is that in the statute?). Regardless, this is about as as much a non-event as it gets. My bet is we never see any prosecution because it does not look like the penal code was violated.
“…does not even seem…[to break the law]. …it’s not clear that…[she broke the law]. …does not look like…[the law was broken].”
Well I’m convinced. Thanks, counselor.
I apologize in advance if I am wrong, but your argument seems quite disingenuous. I agree that prosecution is unlikely, but Jenkin’s actions are quite unusual. The facts as we know them now fit the theory that she was improperly using her position in the DAs office, on her way out the door, to prepare for her next gig as the most highly paid volunteer for the campaign to unseat the popularly elected District Attorney. That theory can be easily disproved by Jenkins simply identifying the legitimate reason she had for sharing the information with her colleague, a fellow DA employee headed out the door and into the arms of the recall campaign. Wouldn’t you agree with that?
The Mayor’s decision to choose such obviously compromised folks to run the DA office is either an example of poor judgement or a (likely successful) move to keep the focus on the DA’s office for the real problems of crime and homelessness in San Francisco. Those are problems that the Mayor and police should own but somehow don’t. The, often contrived, controversy around Chesa served the Mayor well in this regard. Jenkins could be serving her purpose as the replacement foil.
I was just responding to Joe’s charge, which was that Jenkins violated the Penal Code and committed a misdemeanor. This is a serious charge as such conduct could result in jail time. Neither the ethicists who are quoted (all very reputable) nor anyone else in the article addresses this. The statute says that “Any person authorized by law to receive a record or information obtained from a record who knowingly furnishes the record or information to a person who is not authorized by law to receive the record or information is guilty of a misdemeanor.” So was anything sent to a person who was “not authorized by law” to receive it? The statute further says that “‘A person authorized by law to receive a record’ means any person or public agency authorized by a court, statute, or decisional law to receive a record.” That is quite broad. Is an active DA in the office handling the record “authorized” to receive it? I’ve seen nothing that would indicate the answer is “no” and that would be extremely surprising as DAs show such records to others in the office all the time to discuss case strategy etc. If someone can show me some authority saying that either Jenkins or du Bain – both active DAs at the time – were not “authorized” then I stand corrected. Nothing in this article indicates that is the case.
Was it sleazy to do this? Maybe. But that’s a different question. Joe writes that she violated the Penal code. I don’t see it. And if we’re just talking about sleaze, then Chesa’s cutting a sweetheart deal to his former client, resulting in two deaths, is several orders of magnitude worse.
Sorry, I wasn’t clear enough for you the first time: legal point conceded. You can argue the penal code with Joe if he is up for it.
Sounds to me like you are conceding the point that Jenkins actions were “sleazy” to use your word. I think we are in agreement on a lot here but I would choose “unethical, improper, betrayal of public trust” as the appropriate adjectives.
And using the old recaller trope “Chesa bad” to justify this behavior is pretty weak, don’t you think?. I doubt you would feel the same way if the DA had been someone you agreed with. That still qualifies as intellectually dishonest, in my opinion.
I completely agree with you on “sleazy.” As for “unethical”? That is a legal term of art. I don’t think this rises to that level. If one is going to punish this level of sleaze, 95% of SF government workers would be subject to discipline. And that is very different from violating the Penal Code, which this certainly appears not to do.
He wasn’t popularly elected.
He was appointed through the RCV system.
Nice work Joe. I really hope mission local stays on this story. Nobody else is going to.
+1 eagerly awaiting more information on this topic. FWIW I voted to recall Boudin and I regret it.
When I see a large number of police officers, firemen, and/or paramedics at a scene, far more personnel than appear necessary, I often tell myself that they are there to learn, to train, to show peer support, and to converse enough to become familiar with one another. I would infer that is what happens at the District Attorney’s headquarters as well.
You would be wrong on all counts.
Fire fighters are all there because they come as a unit. Police are there to help where they can.
DA’s do talk with each other like any other office. But Do not share files unless they have a specific question that the recipient may be able to answer.
They ABSOLUTELY do not share files that are not theirs.
Leaving out the CLETS (rap sheet) issue, this action is subject to discipline internally. Adding the CLETS (rap sheet) issue it’s something that should be prosecuted and should have action taken by the state bar. (She would not be suspended, let alone disbarred, it would likely have her do professional responsibility training and have a notation of discipline on her record. )
What was the teaching moment when the documents were sent and received? Let’s not defy common sense here. Regardless of whether it was a crime, what she did is a clear case of self-dealing while in a public position of trust. This criminal was the focal point of the campaign that she ran against the DA. Of course, she needed to ensure that her facts about the case were absolutely correct. No better way of ensuring that than to have possession of the criminal records and files related to him. Again, common sense compels the conclusion that she breached her position of trust and her oath/obligation to follow the law and not put her personal interests above her professional obligations.
Brooke Jenkins was looking for hard cases to send to the California Attorney General, but she might just get her wish.
Her own case, that is.
It’s a lose lose situation, no matter what, she just leaked the office and tried to hide and get away with it for her own ends.