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Court of Appeal:
San Francisco D.A.’s Office Properly Recused in Two Cases
Comments by Future District Attorney to Columnist Precludes Further Involvement, Opinion Says
By a MetNews Staff Writer
Div. Five of the First District Court of Appeal has affirmed orders in two cases recusing the Office of San Francisco District Attorney based on remarks made in 2021 by now-District Attorney Brooke Jenkins—then a former member of the office who was a leader in the campaign to recall her ex-boss, Chesa Boudin—alleging prosecutorial laxity.
The opinion was filed Wednesday.
In one of the cases, two defendants are charged with the murder of Jenkins husband’s cousin. In the other case, one of those defendants is charged with unrelated offenses including an attempted murder.
Jenkins quit as an assistant district attorney (“ADA”)—the analogue of a deputy district attorney in Los Angeles County—as of Oct. 15, 2021. Nine days later, her comments on the office were published by the San Francisco Chronicle.
Boudin was recalled in the June 7, 2022 election. On July 7, Mayor London Breed appointed Jenkins as interim district attorney, and she was elected in November to fill out Boudin’s term through the end of this year.
Recusal Order
San Francisco Superior Court Judge Christopher C. Hite on Nov. 30, 2022, ruled that the entire District Attorney’s Office must be disqualified from prosecuting defendants Stevie Mitchell and Sincere Pomar on the murder count and related charges in light of Jenkins’s “familial relationship with the homicide victim” and her public statements.
A judge of the same court, Loretta M. Giorgi, subsequently barred Jenkins’s office from handling the prosecution of Pomar on unrelated charges. She pointed out that Jenkins had made “specific” public comments in 2021 tying the case to that involving the slaying of Jenkins’s in-law and concluded that a “walling-off” of Jenkins from the case before her—as had taken place in connection with the murder case—was not “going to be sufficient.”
It was the Office of Attorney General that appealed from the orders, and to which the prosecutions will inevitably be shifted in light of Wednesday’s Court of Appeal decision.
Public Statements
The public criticisms of Boudin by Jenkins appeared in a column by Chronicle staff writer Heather Knight, who wrote:
“[Jenkins] disagrees with what she sees as prioritizing ideology and politics over the day-to-day handling of cases, which she said has yielded an unorganized office, plummeting morale and bad outcomes for victims and their families.”
Knight quoted Jenkins as saying:
“The D.A.’s office now is a sinking ship. It’s like the Titanic, and it’s taking public safety along with it.”
Slaying of In-Law
The columnist went on to report:
“Jenkins’ misgivings about her new boss intensified after her husband’s cousin, Jerome Mallory, 18, was fatally shot…on July 5, 2020. According to Jenkins, Mallory was an innocent bystander in a gang dispute.”
Police arrested four men—including Mitchell and Pomar—but Boudin’s office declined to prosecute, initially, because it could not be determined who had pulled the trigger during the drive-by shooting.
Knight recited that Boudin, in taking office, announced that he would not seek sentencing enhancements based on crimes being gang-related except in “extraordinary circumstances.” (That was similar to a proclamation by Los Angeles District Attorney George Gascón on Dec. 7, 2020, the day he was sworn into office, except that Gascón did not allow for an exception; he said in a special directive that “sentence enhancements…shall not be filed in any cases” and specified that gang enhancements “will not be used for sentencing.”)
The Chronicle column continues:
“Jenkins said Boudin is also resistant to filing felony charges of gang conspiracy. She wanted those charges filed against Mallory’s alleged killers, seeing them as the only way for prosecutors to make a case. She said there are some cases in which the only way forward is to file gang charges.
“After several months, the DA’s office did charge all four men, and they’re in custody, but not on gang charges. Jenkins said she doubts the case will hold up in court.
“She said Boudin’s blanket policy bothers her because he touts it as benefiting the Black and Latino communities when the victims of gang crimes are usually Black and Latino—like her husband’s cousin.”
Unrelated Charges
In the portion of the column concerning the alleged offenses not related to the homicide, Knight wrote that Jenkins “pointed to what she called an example of ideology trumping public safety,” specifying:
“When the four people now charged with killing Mallory were out of custody shortly after his death, one of them, Sincere Pomar, allegedly injured a 13-year-old child in his care and, weeks later, allegedly committed attempted murder.
“Boudin’s office has charged him for those crimes as well, but Jenkins said they couldn’t have happened if he had been held on Mallory’s murder.”
Appeals Court Opinion
Justice Danny Y. Chou said in his opinion, addressing Hite’s disqualification order in the murder case, that the “undisputed facts provide substantial evidence that Jenkins had a deep, personal interest in the Mallory case, believed in the guilt of Mitchell and Pomar, and harbored animosity toward them for their role in Mallory’s death.”
Chou continued:
“They also provide substantial evidence that Jenkins disagreed with how the Office had been handling the case, including its charging decisions, and believed that Mitchell and Pomar should be prosecuted far more aggressively for their role in Mallory’s death. And they provide substantial evidence that the ADAs in the Office, including the ADAs prosecuting the Mallory case, were aware of Jenkins’s strong, personal interest in the case, her belief that the Office’s lax approach toward prosecuting the case had already doomed it, and her broad authority over their hiring, firing, promotion, and demotion.
That Jenkins committed no ethical violations because she made her public statements about the Mallory case before she became District Attorney makes no difference. Those statements still reflect her personal beliefs and opinions.”
Chou said that “the question is closer” in the case before Giorgi but that “the trial court reasonably concluded that Jenkins’s animosity toward Pomar for his role in the drive-by shooting of her husband’s cousin extended to his role” in the drive-by shooting giving rise to the attempted murder charge. He added:
“The court also reasonably concluded that, due to Jenkins’s public statements tying the two cases together, they had become inextricably intertwined in the eyes of the ADAs in the Office, as well as the public.”
The case is People v. Pomar & Mitchell, 2023 S.O.S. 3385.
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