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.”