But the judge sent Gonzalez's client to prison on a probation violation anyway, claiming that a piece of jewelry snatched during the encounter and later found on the suspect implicated him, even though he'd never even been charged with receiving stolen property.
Gonzalez calls it the "innuendo of a case unproven."
Speaking in general terms, longtime local defense attorney Don Bergerson said it's far from uncommon for the DA's Office to use an alleged probation violation as leverage for getting tough jail sentences when a case otherwise looks lifeless.
"To hide behind the fact that the standard of proof required to revoke probation is ostensibly less seems to me to be morally and practically dishonest," Bergerson said, "even if one can justify it semantically."
When we reached deputy district attorney Thompson, he refused to talk about the Simms case. But spokesperson Debbie Mesloh said outright that the DA's Office was seeking to take advantage of the lower standard of proof and added that there was at least enough evidence to hold Simms for trial.
"The charges in this case were dismissed because we await crucial DNA evidence that was not available at the time that the defendant was scheduled to go to trial," Mesloh wrote in a January e-mail. "We currently await the findings of this evidence."
Her office confirmed in a follow-up e-mail, however, that the DNA analysis has so far gone nowhere. To this day, no reasonably good physical evidence from the case has been identified.
FOR THE RECORD
Somebody almost killed Maluf, and the two most likely suspects are Portillo and Simms. Neither is a Boy Scout, and both have an obvious incentive to finger the other.
That's exactly why courts require strong evidence enough to convince a jury beyond a reasonable doubt before sending someone to prison. Using shortcuts such as probation revocations leads to slipshod prosecutions and wrongful convictions.
Strong evidence standards are particularly important for a case as muddled as this one.
Portillo told the court he doesn't do drugs, let alone smoke crack.
While he's "got no love for Tony" over the stolen rum, Langlais told us he's certain he heard Simms yelling at Maluf, and he saw Simms standing over him when he entered the garage from upstairs. He's "enraged" that San Francisco's "revolving-door" criminal justice system put Simms back on the street.
But defense attorney Dunlap said Portillo's testimony, which the lawyer described as "inconsistent," wasn't nearly enough to prove the assault, robbery, and attempted murder charges.
"When Jim Thompson got the case assigned to him upstairs," Dunlap said, "I think he took an honest look at it and realized he was going to have a hard time convincing a jury beyond a reasonable doubt that [Simms] was guilty of the crime. Because [Simms] was on probation, [Thompson] opted to dismiss the trial and proceed on a motion to revoke instead.... It was more or less a practical way to try and salvage something from a sinking ship."
After reluctantly accepting the extended probation deal for Simms at the hearing Dec. 13, 2006, Thompson still complained that Simms deserved more jail time.
"Your honor, this disposition is over the people's strenuous objection," he indignantly informed Judge Charlotte Woolard. "The defendant has a lengthy criminal history....