On May 1, District Attorney Brooke Jenkins dismissed all charges against Michael Earl-Wayne Anthony, the Walgreens security guard who last month shot dead accused shoplifter Banko Brown.
And she explained why, in detail. Too much detail, it turns out: “The evidence clearly shows that the suspect believed he was in mortal danger and acted in self-defense,” she said in a statement.
That’s pretty definitive. But on May 8, however, she insisted that “The investigation into the killing of Banko Brown is ongoing.” Jenkins is on the record, unequivocally stating that the evidence in this case is clear — but we’re going to have to take her word for it: “Releasing any evidence before the investigation is complete could compromise the investigation and is unethical.”
It’d be hard to think of a way to more neatly compromise any future prosecution of Anthony.
“You don’t have to be a lawyer to realize that anyone who’d be defending this guy is salivating,” says a former prosecutor who worked in the San Francisco District Attorney’s office in the 2000s. “Even if the DA were to charge the case at this point, the No. 1 defense would be, ‘What changed?’ The chief law-enforcement officer of the county said this was clearly self-defense — and then pressure came and then charges came.”
You also don’t have to be a lawyer to realize that this is astonishingly bad lawyering. But we spoke with multiple current and former prosecutors, and that’s how they feel. Jenkins, this week, is insisting that she is still open to charging Anthony, after last week stating why charging him would be reckless and unethical — and offering up unambiguously exonerating statements for the security guard.
Jenkins is, this week, chiding those who’d have her release videos and evidence as potentially “compromising the investigation,” when, last week, she described her conclusions drawn from those videos and evidence — which, of course, also compromises the investigation.
It certainly compromised any future prosecution.
Jenkins’ definitive statements, and her attempts to walk them back, were “a rookie mistake on several levels,” summed up a prosecutor who worked in the San Francisco DA’s office in the 1990s.
“If I’m the defense attorney here, I say, ‘Right after this happened the District Attorney of San Francisco said this is clearly self-defense. That’s not me! It’s her!’ Objection! Move to strike! Sustained. Jury, can you un-hear that? They cannot.”
The attorney laughs. “You can’t buy ammo like that.”
So, that happened. And it didn’t need to. Prosecutors are happy to tell you that you can dismiss cases without wiping your nose with them, as Jenkins did here. Especially when you dismiss a case in a manner that allows you to re-charge at a future date.
Because that’s what Jenkins did on May 1: She discharged this case under “Code 27,” which allows for charges to be potentially re-filed at a later time. Jenkins could’ve been very clear about this; she could’ve stated that the evidence to charge wasn’t solid yet, and she was reserving the right to make that move, following an open and active investigation.
She didn’t do that. “And I don’t think that was part of a master plan,” continues the former prosecutor from the 2000s. “She’s not laying traps to put someone in court to lose a case.”
Rather, this was clumsy and damaging and needless.
Mission Local — and, we’re certain, a bevy of media outlets — has made numerous requests of the DA to release the video of the shooting, which Jenkins referenced in informing her May 1 charging decision. We have been consistently refused, with the DA’s office citing government code after government code to essentially tell us We don’t have to release it so we’re not going to. This is an entirely discretionary matter.
“Looking at one piece of evidence alone in a vacuum, without consideration of all of the evidence available, is irresponsible, unethical, and antithetical to how we must carry out our legal responsibilities as prosecutors,” Jenkins explained on May 8. “While I understand the public’s desire to view certain evidence, releasing video, or any other evidence at this time could compromise the investigation.”
Well, fair enough. Except Jenkins, again, has already been more than clear about the conclusions she’s drawn from the evidence she won’t let the public see. So this would appear to be a difference without a distinction.
“Is her assertion of a week ago, that this was self-defense, borne out by the video, or not? The only way to know is to release that information and allow us to come to our own conclusion,” said Board President Aaron Peskin.
Peskin introduced a resolution last week urging Jenkins to do that, and the supes will vote on it on Tuesday. It’s not likely to spur an epiphany in our DA; on May 8 she sent a letter to Supervisor Shamann Walton in which she dismissed his similar urgings as “interference in the judicial process.”
The Board President isn’t holding his breath. “I can subpoena it from Walgreens. We have other ways of getting it, if we want to,” he says. “But, hey, why don’t we give her a chance?”
It will be truly amazing to see what Jenkins does next.
“Unless there’s something completely crazy out there that nobody is aware of, I’d be surprised if her decision changes,” sums up the prosecutor from the 2000s. “So she should just explain it: If you’re not trying the case, tell us why. And if you are going to try the case? You just fouled it up royally by saying it’s a clear case of self-defense.”
More on Banko Brown
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She looked at all the facts and came to a conclusion. People need to get over it. Claiming murder simply because you think any trans or black person killed is murder is nonsensical. This person was a shoplifter and was making threatening comments and gestures. It is unfortunate they are dead – but it was determined to be self-defense.
What is really sad is people who are out to claim that an underpaid, black security guard who has to deal with aggressive criminals on a daily basis – just trying to make a living and get through the day alive – is somehow a murderer.
Want someone to blame? Blame Banko’s friends and family. Remarkable they claim Banko wants food and shelter? What a joke that none of them helped her. Family and friends are the first line of support. Stop blaming SF.
It is truly a shame that we let the SFPD perform a work-stoppage to trick us into recalling a reform DA, who I am certain would not have done this, and replace him with a DA who seems intent to rubber stamp every bad thing not just the SFPD is doing, but now every vigilante acting in their interest is too. An absolute shame. SFPD is one of the too many police departments in this country accountable to no one. I wish our elected officials at all levels would spend less time squabbling about the nuance between “defund” and “abolish” the police, and realize the first thing they need to do is make the police accountable to the people.
Someone in authority should petition Attorney General Bonta’s office to investigate and intervene in the interest of justice.
It’s very clear what Jenkins will do next. Nothing. In the time honored modus operandi of the SFDA, she will sit on it, delay, keep talking about “ongoing investigation” yada yada, and then, in a couple years, decide to ditch the case all together. (She will also remind us that she is black and a woman at least once, maybe multiple times over the course of the “investigation”). Most will have forgotten all about it by then, and those few who haven’t will protest for a day or two, and be portrayed by the Chron and Standard as fringe weirdos who make San Franciscans feel “unsafe.”
Why is it in your opinion, objectionable and hyperbolic, for “San Franciscans” to feel unsafe? But it’s totally normal, reasonable and unobjectionable for Black people to feel unsafe?
>Why is it in your opinion, objectionable and hyperbolic, for “San Franciscans” to feel unsafe? But it’s totally normal, reasonable and unobjectionable for Black people to feel unsafe?
You made two claims regarding Mark’s opinions. Please quote from his comment to back up your claims; otherwise, it’ll appear you’re putting words into his mouth.
I can see an angle that prosecuting this case will make the criminals even more brazen and put more shoppers and security life at risk.
I don’t know that this was a factor in DA’s decision, but we don’t want people to feel they need to bring their own gun when going shopping. This is where Texas seems to be headed along with even gun injury rates.
Your work is consistently worthwhile, Joe. I appreciate the points you raise. Thank you.
Agree the DA’s comments were inappropriate. She should have simply said “the investigation is ongoing.” Also agree the video should be released. But her comments will not “undermine any prosecution” if the DA eventually brings charges due to new evidence or a re-evaluation. The jury will never hear the prior comment. The prosecuting attorney will file a motion to bar any mention of it, which likely will be granted. And that will be the end of it – the defense counsel won’t be able to sneak it in so the jury can’t “un-hear it.” Games like that are not allowed in court.
It may not even get to a jury if the defense can file a demurrer and attach the video of Brooke Jenkins, DA of SF, saying she watched the tapes and it shows clearly that the guard acted in self defense.
so this would help the defense which would make it difficult to prosecute the security guard who shot the person so wouldn’t that be “undermining any prosecution”?
Sir or madam —
The actual prosecutors I spoke with would tend to disagree with you. They would be surprised to see the DA’s very public pronouncements, made on TV and everything, being barred from mention in court. I would too.
JE
Joe, that’s exactly the opposite of the quote in your article from one such prosecutor: “If I’m the defense attorney here, I say, ‘Right after this happened the District Attorney of San Francisco said this is clearly self-defense. That’s not me! It’s her!’ Objection! Move to strike! Sustained. Jury, can you un-hear that? They cannot.”
That “sustained” means the judge would grant the motion to exclude any mention of the D.A.’s prior comments. But this would all happen in advance and the jury would not hear it at all. There is no issue of the jury being unable to “un-hear” it. There is no way a judge would allow the jury to hear something like that – perhaps 40 years ago when courtrooms were much looser but not today. You make some good points in this article, but the point about undermining any potential prosecution is not a valid one.
Such a statement is likely admissible as a statement of a party opponent. Such statements by District Attorneys have been admitted for years upon motion by the defense at criminal trials in Massachusetts including murder trials so you may need to do some more research in this area. The author and the lawyers he referenced appear to have a firmer grasp of this than you do.
“Cal. Evid. Code § 1220 – Statement of party opponent
Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.“
Sir or madam —
Again, the prosecutors disagree with you, and you’re picking one quote out of several in the story regarding this matter.
To succeed here, the DA’s office would need to convince the judge that the DA’s own views on the evidence are not germane — and, remember, she said the evidence “clearly” showed the opposite of what a future prosecutor would be contending it shows. What’s more self-defense is a complete defense. It’s not clear what could override self-defense.
Finally, regardless of whether it comes to that point, the DA’s office would need to tell the judge that the DA’s own words were more prejudicial than probative, and that her own words were so poorly considered and would have such a negative impact on the case, that the jury should be barred from hearing them.
That strikes me as something that was avoidable, and not at all a good idea.
Best,
JE
I’d like to see the reasoning of any of these prosecutors. This scenario would only come up if the DA decides to prosecute. Here is how it would play out. Say the judge allows the defense to present the DA’s comments. Counsel does not get to just say “jury, listen to what the DA said.” You need to bring it in through a witness on the stand. Who would that be? The DA. Then because the defense opened the door, the prosecutor would get to examine the DA and ask “what changed?” And the DA would say “Early on I didn’t know X, Y and Z, but now I do, and let me tell you that changed everything so now I think he is guilty as sin.” No way the judge would let these comments in, but if the defense pushed for it and (somehow) won, it would just allow in all sorts of defense nightmares in any event. This isn’t how trials work. It’s not TV.
Sir or madam —
I think we’re done here, but, again, the folks I talked to were real-life DAs. Not Angie Harmon or Sam Waterston.
Yours,
JE
I understand how it could seem like the D.A.’s comments should be heard by the jury. But the rules of evidence apply, and for the very reasons you note it is a near certainty that a trial judge would not allow this in. The DA is not a witness and has no first-hand knowledge of anything. Criminal cases have to be resolved on the facts with competent evidence, and the DA’s subjective comment about how she initially interpreted the evidence she saw early on in the investigation is in no way admissible. Which prosecutor told you anything different – and based on what? I see only one such prosecutor in your piece that mentioned this issue, and he/she agreed that an objection would be “sustained.”
Sir or madam —
Nice argument, but, again, the prosecutors — plural — disagree with you. And, as noted before, this was an avoidable situation; there’s a reason DAs and politicians choose their words. I do not think it would reflect well on the DA’s office to claim her statements were so ill-chosen and prejudicial that they should be barred from admission.
Yours,
JE