By Jojo Kofman
SAN FRANCISCO, CA – A preliminary hearing for two men accused of a murder in July of 2020 finished on its 11th day in San Francisco County Superior Court Wednesday—the victim of the homicide is the cousin of the husband of newly-appointed San Francisco District Attorney Brooke Jenkins.
The co-accused are two Black men, both 20, Sincere Pomar and Stevie Mitchell.
After 11 days in court, Judge Victor M. Hwang ultimately decided the accused will go to trial for the homicide which took place on July of 2020, noting, “I think there’s evidence that Mitchell and Pomar are linked to the case.”
However, Judge Hwang stressed, “I found many issues with the case that were pointed out by the defense.”
Pomar is represented by Deputy Public Defender Jessie Hsieh. Mitchell is represented by Defense Attorney Pamela Herzig, who has said SF DA Jenkins’ link to the case is prejudicial to her client.
Prior to the judge’s decision, defense lawyers gave their final arguments. Deputy District Attorney Aaron Laycook gave his final argument Tuesday.
In her final argument, Defense Attorney Herzig described what she said the prosecution had “just got wrong.”
Herzig said the prosecution concluded who the shooters of the homicide are by “looking at DNA evidence, and if it tells them what they want for their theory they rely on it, but if it doesn’t they ignore it.”
She explained that the prosecution associated a specific address with Mitchell’s mother, but she said there’s no testimony that Mitchell or anyone from his family lived there.
In previous days of the hearing, DDA Laycook stated the suspect murder vehicle had stopped at Mitchell’s mother address before the homicide. While DDA Laycook made the statement, Mitchell’s mother whispered in the audience of the courtroom, “That is not my address.”
Describing another claim the prosecution “just got wrong,” Herzig argued DDA Laycook used the iPhone recovered in the suspect murder vehicle as evidence of Mitchell being in the car.
However, she explained the DNA found on the iPhone belonged to various people in the Mitchell family, noting that the iCloud account on the phone was linked to Mitchell’s brother.
Defense attorney Herzig thus explained that DNA isn’t distinguished between brothers. She stated that the iPhone isn’t evidence which links Mitchell to the Honda vehicle used in the homicide.
Continuing to explain the lack of the suspects’ DNA evidence found in the Honda vehicle, Defense Attorney Herzig stated accused “Mitchell’s DNA isn’t anywhere in the rear passenger seat of the Honda.”
DDA Laycook had previously placed Mitchell in the rear passenger seat of the Honda when describing the location of each suspect in the murder vehicle.
Defense Attorney Herzig said to the court, “Pomar’s DNA isn’t anywhere in the vehicle.”
All of these are examples of circumstantial evidence that Herzig said the prosecution “wants you to ignore…You can’t pick and choose the type of circumstantial evidence you include.”
“Evidence of two shooters?” Herzig asked, and answering herself she stated, “No,” adding “I do not accept it as clear that the shooter comes from the passenger side.”
Closing her final argument to Judge Hwang, Herzig stated, “You can’t make this kid go to trial on a murder based on this evidence. He should be discharged.”
Next, DPD Hsieh gave his closing argument. In an attempt to show the issues with the prosecution’s proof of who is in the murder vehicle, he said, “Mr. Pomar’s DNA is excluded from every single sample from the Honda, from the backpack, to…”
He continued, stating “that makes it extremely difficult, since the court has nothing to draw inferences from…this shows strong evidence that Mr. Pomar was not involved in the homicide.”
DPD Hsieh then explained that the prosecution has placed Pomar in the right front seat of the murder vehicle because “there’s one seat in the car that remains unfilled…so he must be in that seat.”
Continuing with his final remarks, DPD Hsieh said “the government argued that based on the number of casings and the analysis which comes from these casings, there were 29 shots fired from two guns at this particular location from the time of the homicide.”
“Unfortunately, from the casings found on the scene, the proof goes in a different direction,” argued PD Hsieh, suggesting the only person who heard the shooting itself said “she heard four to six shots…Sergeant Gordon himself testified that he saw 6 lights he believed to be muzzle flashes.”
DPD Hsieh then played the video which captured the shooting to the court, and stated, “What we can tell from this video is that there were not 29 shots fired.”
He added “what we can tell is that there is a single set of muzzle flashes that come from a particular location, not various locations.” DPD Hsieh explained that this evidence goes against the prosecution’s claim that there were two guns fired in the homicide.
DPD Hsieh went on to explain that if one gun was fired, what he stated to be the simplest explanation, “we only have evidence of one gun from the day of the shooting, which was in the possession of Napoleon T.”
Concluding the argument he stated, “I think that cuts very strongly against the two defendants that are here today.”
During DDA Laycook’s final argument, he admitted that defense counsel was correct that Pomar’s DNA didn’t match. However, he argued “the strength of the reliability from Pomar being in the surveillance footage overrules the fact that his DNA isn’t found in the murder vehicle.”
The bar is very low, as courts point out, for cases go to trial to allow the jury to decide innocence or guilt.
And, Judge Hwang decided the case would go to trial. However, the judge explained the various issues contained in the case which were pointed out by the defense.
Judge Hwang admitted “there is a lot less evidence related to Mr. Pomar being in the murder vehicle,” adding, “There are a lot of doubts that remain, but I do find there’s sufficient evidence to hold the defendants accountable to commit murder of the victim.”
He noted “there is a mystery to the guns, I cannot see 29 muzzle flashes. My best explanation is that there was a gun fired from the backseat of the vehicle, but I acknowledge there’s nothing you can see in the video that shows a gun fired from the backseat.”
Judge Hwang listed the various charges, including “the conspiracy to commit murder, assault with a semiautomatic firearm,” among others.
As Judge Hwang ruled, Mitchell’s brothers and family cried in the audience, shaking, as the judge spoke.
After Judge Hwang made the decision, Defense Attorney Herzig requested Mitchell be released pre-trial under whatever conditions the court decides upon.
She explained that Mitchell “has been supported by multiple generations of his family throughout every step of the case, from his mother, grandmas, brothers, and girlfriend. They can contribute to the court’s sense of security that he will return for trial.”
Herzig stated that the main reason Mitchell should be released pretrial is because “[i]t’s impossible for Mitchell to adequately prepare for his defense while in incarceration, and it’s going to continuously be harder as (Covid) variants get worse and vaccine requirements relax.”
She noted that Mitchell’s mother is here in court, saying “he could live with her.”
DPD Hsieh also requested Pomar be released pretrial, stating “he was 18 years when he entered jail, now he’s 20. In just those two years there can be significant changes in one’s growth, maturity, and outlook. As of today, I don’t believe there’s any reason to detain Pomar.”
DDA Laycook disagreed, arguing, “It is absolutely inappropriate for either of these two defendants to be released…they are both facing 50 years to life. They killed a young man, in the head. They should be detained, no bail.”
When DDA Laycook stated the accused faced 50 years to life, a loved one of Mitchell in the audience burst out weeping. Judge Hwang decided to detain both defendants prior to trial, with no bail set.
As court was dismissed, Mitchell looked toward his family and mouthed “it’s not fair.”