By David M. Greenwald
San Francisco, CA – While supporters of San Francisco DA Chesa Boudin have pushed back against the recall, noting that it is heavily backed by out-of-town conservative money, not enough attention has been paid to who exactly some of the leaders of the recall effort actually are—and what their motivations might be.
For instance, in a Recall Debate that will be held on March 21 and moderated by Marisa Lagos of KQED and Megan Cassidy of the SF Chronicle, the pro-recall side will be represented by former prosecutors in San Francisco—Brooke Jenkins and Don Du Bain.
Heather Knight back in October referred to her as “a progressive prosecutor” who left the DA’s office. But as the Vanguard noted in an October 25 column, Jenkins engaged in rather blatant prosecutorial misconduct when she coached a young witness in a child molestation trial in 2019.
As a public defender investigator testified and caught on video, “I observed Jenkins say, ‘Say that – that’s what you need to say.’”
The audio, though distorted made it very clear—the DA, and a group of four adults overall, were pressuring the young girl to testify and coaching her on what to say.
Ultimately, the man facing a life sentence was acquitted.
Then there’s Don du Bain.
Once upon a time, Don du Bain was in fact the elected DA of Solano County. He served there for more than ten years when, in 2013, he was defeated for reelection following a scandal involving a murder trial.
Reported the San Francisco Examiner in a 2015 article, “The Solano County scandal, in which du Bain’s office allegedly failed to properly disclose evidence during a trial, raises questions about his ethics.”
“The issue of prosecutors who violate their duty to provide evidence of innocence is extremely troubling,” said SF Public Defender Jeff Adachi, who died in 2019. “It’s a scourge on our criminal justice system. We’ve asked the courts to adopt a policy of requiring prosecutors to state on the record whether they have complied with Brady. We haven’t heard back.”
He ended up in San Francisco because du Bain was hired by the DA’s office under George Gascón.
Writes the Examiner: “When the San Francisco District Attorney’s Office hired du Bain, it knew about his record. The office also hired one of the attorneys at the center of the scandal that du Bain can’t seem to leave behind.”
They added, “Andrew Ganz, along with du Bain, was chastised by a judge in Solano County for alleged misconduct surrounding a murder trial, according to court documents. Yet those past misdeeds did not impact their hiring.”
The charges here are serious with Ganz, for instance, who “unsuccessfully tried to change the testimony of then-Coroner Susan Hogan in Daniels’ murder case regarding whether Brastow’s death was a homicide. “
Du Bain’s office “also failed to disclose exculpatory evidence in the case regarding the autopsy notes and audio, along with his meeting with the coroner.”
The Examiner reported, “While both former Solano County prosecutors have clear disciplinary records with the state bar, the Solano County judge severely chastised them for their actions in a controversial murder trial that was linked to a coroner scandal that in part cost du Bain his job.”
Solano County Superior Court Judge Daniel Healy reportedly “held an evidentiary hearing on the matter of disclosure and issued a blistering opinion aimed squarely at Ganz and his boss.”
Indeed, the judge’s opinion “also fell harshly on du Bain and the Solano County Sheriff.”
“Their abject failure to adequately handle and discipline these materials is troubling, and their public effort to blame each other for what was a joint obligation is nothing short of disgraceful,” wrote Healy.
Then there’s Thomas Ostly, a former San Francisco prosecutor fired in 2020 by Boudin.
Yesterday he tweeted, “I’m a progressive Democrat, and former legal aid attorney. I represented dozens of citizens that filed complaints against Berkeley and Oakland cops for free, and as a prosecutor I turned bad cops into IA. Unlike @chesaboudin, I’ve held cops accountable.”
But as one person responded, “No, actually you tried to send a Brown man to prison for 6 years after 2 cops assaulted him and dislocated his shoulder for daring to ask why he was being detained. A lot like Dacari Spiers actually. You defended the cops. And then you lied about evidence and got fired.”
In 2019, Carlos Gordon was acquitted on all counts after a jury trial. According to a press release from the San Francisco Public Defender’s Office, “The jury agreed with the defense that Mr. Gordon’s act of tossing a few decorative pebbles in the direction of a construction worker was not a crime, but rather no more than a nuisance.”
Prosecutor Ostly, however, “decided to dismiss and refile the case charging Mr. Gordon with attempted murder again along with three other counts of assault with a deadly weapon. The charge of attempted murder was again dismissed for lack of evidence. The case eventually went to trial, with Mr. Gordon facing eight felony charges.”
Responded Ostly, “I didn’t do that trial. ADA Vietnam Nguyen did. I was in People v. Gress.”
As explained to the Vanguard, he did not take the Gordon case to trial because Ostly was prosecutor for another man for allegedly assaulting a police officer who did not in fact identify himself.
Ostly did refile against Gordon and he was the prosecuting attorney on that case until the trial, and the only reason he had to hand it off was because it was a no time waiver case and he was already in trial, prosecuting another guy for a “crime” against cops who allegedly abused him.
One source told the Vanguard his entire job at the DA’s office was to prosecute people who had been assaulted, beaten or mistreated by cops.
“So it’s funny that he thinks he holds them accountable,” the source said.
But there’s more. The Vanguard obtained a motion from 2019 to recuse ADA Thomas Ostly filed by Deputy Public Defender Ilona Solomon.
In it, she noted during the Carlos Gordon trial she learned “that Ostly had failed to turn over exculpatory evidence, constituting a discovering violation.”
She declared under sealed declaration that Ostaly emailed her, “It is my understanding that Officer Pacchetti’s BWC did not record. I do not possess any video attributable to Officer Pacchetti’s BWC, and I am not aware of any video existing.”
In an email to Judge Hite, she again requested that Ostly be “required to find out for sure one way or the other what happened to the BWC.”
Ostly responded, unequivocally, “Officer Pacchetti’s BWC did not record during the November arrest. It was dislodged during the struggle with Mr. Gordon and did not record.”
“As it turned out, Officer Pacchetti’s BWC did record, and he so testified during trial,” Solomon wrote.
She continued, “I was deeply concerned about Ostly’s misrepresentation, and after learning of it, requested a sidebar to address it. We went into the hallway behind the courtroom and I expressed my concern that Ostly had misrepresented the facts about Pacchetti’s BWC when he unequivocally represented that it had not recorded. I used the word ‘lied’ which apparently angered Ostly.” Ostly became allegedly outraged, and Solomon described him, “Yelling at me, ‘how dare you call me a liar” and “why don’t you just file a f-ng state bar complaint on me like you do on everyone else?'”
She wrote, “I was in fear and did not look at Ostly while he yelled at me, and he commented on this as well—that I lacked the courage to look at him while calling him a liar. I actually had to take a few steps backwards because I was genuinely afraid he was going to hit me.”
She was so concerned about this, that she did eventually file a bar complaint against him.
In a court filing, Ostly claimed that the Bar Complaint against him “was unmerited” and charged that he “was informed by numerous law enforcement and court personnel that Public Defender Solomon was making false and defamatory statements about him.”
He called the Bar Complaint “unmerited and frivolous.”
However, two days after Boudin took office on January 8, 2020, Ostly was terminated, he claims, “without cause.”
In his complaint, he said he was “a prosecutor in good standing, and with a good record” and he believes “he was terminated by (DA) Boudin in retaliation for his comments that the Public Defender’s Office had been filing frivolous Bar Complaints against District Attorney prosecutors as a scare tactic to intimidate them and discourage them from prosecuting cases through trial…”