San Francisco District Attorney Brooke Jenkins statements result in recusal of office from prosecution

People v. Pomar (Cal. Ct. App., Sept. 13, 2023, No. A167241) 2023 WL 5947909, at *1

Summary: Brooke Jenkins, an assistant district attorney (ADA), left the San Francisco District Attorney’s Office (Office) to join the campaign to recall Chesa Boudin, the then San Francisco District Attorney (District Attorney). After leaving the Office, Jenkins spoke to a reporter about a homicide case being prosecuted by the Office in which the victim was her husband’s cousin. Jenkins criticized the Office for its approach toward prosecuting the two alleged killers of her husband’s cousin, defendants and respondents Mitchell and Pomar. Jenkins faulted the Office for dropping felony gang charges against Mitchell and Pomar and for failing to detain Pomar for the murder of her husband’s cousin. After Boudin was recalled, Jenkins became the District Attorney. The Office installed an “ethical wall” to prevent Jenkins from influencing its prosecution of Mitchell and Pomar for the murder of her husband’s cousin. Mitchell and Pomar moved to disqualify the entire Office from that case pursuant to Penal Code section 1424. Pomar also moved to disqualify the entire Office from his separate prosecution for the additional crimes mentioned by Jenkins in the newspaper article. The trial courts in both cases granted the recusal motions and disqualified the entire Office from prosecuting the cases. Plaintiff and appellant the People of the State of California (People) appeal from the recusal orders, contending both courts abused their discretion. Court of Appeal affirmed.

Facts: On June 30, 2021, the Office filed an amended felony complaint dismissing the felony gang count against Mitchell and Pomar. Jenkins resigned from the Office on October 15, 2021, and joined the recall campaign against Boudin. Jenkins spoke with a reporter from the San Francisco Chronicle. The published article discussed Jenkins’s reasons for leaving the Office and joining the recall campaign. The article observed that “this is personal for Jenkins” because her husband’s family had been “devastated” by the death of Mallory.  The article reported that Mallory, “[a]ccording to Jenkins,” “was an innocent bystander in a gang dispute.” Jenkins then criticized the Office for refusing to file “felony charges of gang conspiracy” against Mitchell and Pomar in the Mallory case. As the article explained, Jenkins “wanted those charges filed against [Mitchell and Pomar], seeing them as the only way for prosecutors to make a case.” Because the Office declined to pursue those gang charges due to Boudin’s resistance, “Jenkins said she doubt[ed] the case w[ould] hold up in court.”

On July 7, 2022, San Francisco Mayor London Breed announced the appointment of Jenkins as the Interim District Attorney to head the Office.

On October 20, 2022, Mitchell and Pomar filed separate motions to disqualify the entire Office from the Mallory case pursuant to section 1424. The Attorney General opposed. The Office did not. The trial judge granted both motions on November 30, 2022, disqualifying the entire Office from the Mallory case. In support, the judge took judicial notice of “the following indisputable facts”: (1) there was a recall campaign against Boudin; (2) Jenkins joined the recall campaign shortly after resigning from the Office “on or about” October 15, 2021; (3) Jenkins spoke to the Chronicle about the Mallory case on October 24, 2021 and spoke to the press about the recall campaign several other times; (4) San Francisco voters recalled Boudin on June 7, 2022; (5) Mayor Breed announced the appointment of Jenkins as the interim District Attorney on July 7, 2022; and (6) San Francisco voters elected Jenkins as the District Attorney on November 8, 2022. He also took judicial notice of the contents of the Chronicle article, including Jenkins’s comments about the Mallory case. Finally, the judge took judicial notice of the many ADAs who have left the Office since 2020, “either as firings, resignations or retirements,” as well as their status as “at-will employee[s].”

Based on these facts, the trial judge concluded that Jenkins had a conflict of interest in the Mallory case due to her “familial relationship with the homicide victim.” At the same time, he found that Jenkins “ha[d] not committed any ethical violations and was immediately conflicted out of the case,” that Jenkins made her public statements about the Mallory case as “a private citizen”—and not “as a prosecutor with the” Office—and that the Office “appropriately raised an ethical wall that” Jenkins “respected.”

The trial judge further concluded that Jenkins’s conflict rendered it unlikely that Mitchell and Pomar would receive a fair trial. The judge noted that “in some circumstances an ethical wall may be sufficient to sanitize the [O]ffice from the conflict with the elected district attorney.” But he found that such a wall was not sufficient here because of comments made by Jenkins to the press “regarding the nature of the charging decision, including the need for gang charges, the weight of the evidence, and the likelihood of success on the prosecution as charged.”

The Attorney General timely appealed from the order disqualifying the entire Office from the Mallory case (appeal no. A167286). (§ 1424, subd. (a)(1).)

Second felony complaint Pomar/Young case

In connection with a car break-in and gun fight, the Office filed a felony complaint against Pomar and Ravenell Young, III on June 4, 2021 (hereinafter, the Pomar/Young case), while Jenkins was still an ADA at the Office.

Pomar moved to recuse the entire Office from the Pomar/Young case under section 1424. The Attorney General opposed. The Office did not file an opposition or response.

A different trial judge granted Pomar’s motion, disqualifying the entire Office from the Pomar/Young case.

The Attorney General timely appealed from the order disqualifying the entire Office from the Pomar/Young case.

The appeals stayed the recusal orders in both the Mallory and Pomar/Young cases. (§ 1424, subd. (a)(1).) This Court consolidated the two appeals.

1424 motion to recuse the district attorney

Under section 1424, “[a] motion to recuse the district attorney ‘may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.’ ” (People v. Bell (2019) 7 Cal.5th 70, 97, 246 Cal.Rptr.3d 527, 439 P.3d 1102 (Bell), quoting § 1424, subd. (a)(1).) “The statute ‘articulates a two-part test: “(i) is there a conflict of interest? And (ii) is the conflict so severe as to disqualify the district attorney from acting?” ’ ” (Haraguchi, supra, 43 Cal.4th at p. 711, 76 Cal.Rptr.3d 250, 182 P.3d 579.) The People concede there is a conflict of interest based on “Jenkins’s relationship to one of the victims.” Thus, the only issue in these two appeals is whether the trial courts in the Mallory and Pomar/Young cases abused their discretion in finding that the conflict was “ ‘ “so grave as to render it unlikely that [Mitchell and Pomar] will receive fair treatment during all portions of the criminal proceedings.” ’ ” (People v. Vasquez (2006) 39 Cal.4th 47, 56, 45 Cal.Rptr.3d 372, 137 P.3d 199 (Vasquez).) The Court of Appeal found no abuse of discretion.

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