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.”