When District Attorney Brooke Jenkins tossed out a homicide case against San Francisco police officer Kenneth Cha on Friday, one of the rationales for the dismissal was an ethical “breach” involving one of the former prosecutors working on the case.
Jenkins alleged that former prosecutor Lateef Gray tainted the prosecution efforts against Cha because he’d previously worked in private practice as victim Sean Moore’s attorney.
While five former prosecutors in the DA’s office disputed that allegation, saying Gray was not substantively involved in Cha’s prosecution, others pointed to a very similar conflict involving Jenkins herself — one which raises questions as to whether Jenkins should be deciding the fate of the officer who shot Moore, they said.
Six years ago, as an assistant district attorney, Jenkins prosecuted Moore on assault and threat charges tangential to the events of Jan. 6, 2017, which left him mortally wounded after Cha shot him twice. Then, upon being named district attorney last year, she found herself in position to dismiss the homicide charges against Cha — who shot the man she had once attempted to put into prison.
Legal experts raised concerns about an appearance of impropriety with Jenkins’ involvement on both sides of the courtroom.
Her prosecution of both Moore and, later, Cha might not entail a strict conflict of interest, but “an ethical prosecutor would flag this up,” said Jonathan Simon, a criminal law and criminal procedure professor at University of California, Berkeley. He added that victims and alleged perpetrators can often overlap, and such conflicts are not unusual.
Though it is not uncommon for a prosecutor to take a former victim to trial or for a defense attorney to represent someone whom they formerly prosecuted, legal professionals stressed that in a high-profile case like Cha’s, the prudent course of action would have been total separation.
“Today’s defendant can be tomorrow’s victim. It happens all the time,” said Herman Holland, a public defender who represented Moore in his 2017 physical assault case. “But this is a big case,” he said, referring to the police shooting, one of just two known police homicide cases ever filed in San Francisco.
Cha’s was the last of three police shooting cases that Jenkins inherited from her predecessor, Chesa Boudin, all of which she has now dismissed. Moore ended up in jail in August 2019 after violating the terms of the probation imposed after the case Jenkins prosecuted.
He died in prison on Jan. 20, 2020, from the injuries sustained three years earlier when Cha shot him. Boudin then charged Cha with homicide in November 2021.
‘It’s one where you want to be careful’
Speaking about the situation hypothetically, Laurie Levenson, chair of the Advocacy Center at Loyola Law School, said that, at minimum, it would have been prudent “for that office to wall off the original prosecutor, even if [they’re] head of the office,” and take time to assess the case.
“It’s one where you want to be careful,” Levenson said, and “make sure everybody’s rights are honored — make sure that the public doesn’t have open questions about whether the prosecutor evaluated this case the same way they would have if the prosecutor had not been involved in the first case.”
Issues could arise, Levenson said, if, for example, Jenkins, as Moore’s one-time prosecutor, was called as a witness to testify about Moore’s history.
Whether the DA’s office made any efforts to disclose Jenkins’ past prosecution of Moore is unknown, as is her level of involvement in the police shooting case. In the prosecution of former officer Christopher Samayoa, who shot unarmed carjacking suspect Keita O’Neil in 2017, Jenkins stepped in to announce she was dismissing the charges earlier this year, but it was Assistant District Attorney Darby Williams who was assigned to the case.
And, in the motion to dismiss the charges against Cha filed late last week, the DA’s office pointed to a similar need for walling off a prosecutor in case of a conflict: Gray represented Moore in a civil case against the city (and earned a $3.25 million settlement for Moore’s survivors), then later worked as the head of the DA’s investigatory team that prosecuted police like Cha.
“There is sparse evidence that any ethical wall existed to prevent Moore’s civil counsel, Lateef Gray, from being involved in the prosecution of an officer for what had happened to his civil client,” the motion reads. “And in any event Gray violated the ethical wall on numerous occasions.”
Gray denied working on the criminal case against Cha.
Whether Gray committed any violation is unconfirmed. But court records show Jenkins’ involvement in both cases where Moore was the suspect, and later the victim.
David Ball, a criminal law professor at Santa Clara University, said Jenkins’ prior involvement in Moore’s case was not necessarily an ethical violation, but “if you were going to maximize public confidence in the public prosecution — which is a goal to which, on paper, we all aspire,” he said, “then you would say ‘Yeah, I want to come clean about all this.’”
Jenkins’ past ethical lapses
Accusations of ethical breaches have followed Jenkins since before she took office.
While she claimed to be a volunteer for the recall of her predecessor Boudin, she took home a six-figure salary as a consultant for a nonprofit linked to the recall. She was accused of prosecutorial misconduct for commenting on a defendant’s right to remain silent, and was separately accused of pressuring a young witness. She condemned Gray, whom she fired upon taking over the DA’s office, for improperly taking confidential files from the office, and Mission Local found that she did the same herself.
Ethical disclosures are “particularly important for public officials,” said Ball, and “extremely important when we talk about public officials who have the power to deprive someone of liberty.”
Mission Local has asked the DA’s office about Jenkins’ involvement in the case, and whether she had taken any action to wall herself off or recuse herself from Cha’s prosecution.
“The 2019 prosecution of Mr. Moore was totally separate and unrelated to the 2017 case,” said Randy Quezada, a spokesperson for the DA’s office, when asked whether Jenkins disclosed her past involvement in prosecuting Moore.
Quezada said that Jenkins was seen in court by Moore’s family and lawyers. “Mr. Moore’s family and counsel never raised any issue regarding a perceived or actual conflict.”
Moore’s public defenders stressed that Jenkins should have stayed out of Cha’s prosecution because of her history with Moore. Brian Pearlman called it “bar exam 101.”
“There’s absolutely no way she should be involved in this,” Pearlman said. “[Jenkins] tried to put [Moore] in prison, and … now, all of a sudden, ‘I really care about this guy’? It’s a direct conflict of interest.”
Pearlman defended Moore against earlier charges from former DA George Gascón’s office, for the incident in which Moore was shot on his front stoop.
So grateful for ML, and Eleni’s work— covering complex legal issues with a wide angle lens and at the same time, providing readers with acute focus. In this case, once again, the DA‘s deceitfulness is uncovered, and the tragic consequences of that dishonesty are laid out for us to understand and consider. Not only does a family suffer the enormous injustice of their loved one’s killer getting protection from the City, but we all suffer knowing that our paid servants can kill with impunity.
“Her prosecution of both Moore and, later, Cha might not entail a strict conflict of interest” – not “might not” but “does not.” The DA did not recuse herself in a matter in which she was not required to do so. Really a non-story here. I really appreciate when Mission Local digs into local stories, but just finding someone to quote stating (incorrectly) that he thinks the DA should have taken some step that neither the law nor the rules of professional responsibility require is just a meaningless hit job. Find any action any public official has ever taken, and I’m sure you’ll be able to dig up someone on the street who will say “in my opinion that was unethical.”
What is the point of that?
Just as sure as shit ML is going to cover the trials and tribulations of Jenkins and the DA’s office, you’ll be there to call it a “non-story.”