Arts and Entertainment
Police work that was substandard (at best) has jeopardized a San Francisco murder case.
By A.C. Thompson
Society wins not only when the guilty are convicted but when criminal trials are fair.
U.S. Supreme Court Justice William O. Douglas, 1963
LIKE TOO MANY stories, this one begins with a burst of gunfire.
At about noon on July 5, 2001, somebody put eight bullets in Darryl Lewis. San Francisco police found Lewis, 38, slumped over the wheel of his parked, gore-spattered car on the 200 block of West Point Road in Hunters Point. It clearly wasn't a robbery: Lewis had $96.35 in the pockets of his khaki pants.
Within days homicide cops had zeroed in on a suspect: a beefy convicted dope dealer named Johnny Rae Trammell, a.k.a. Johnny Blaze. A week after the killing Trammell was arraigned on murder charges.
He may well be the killer. So far, though, People v. Johnny Rae Trammell has been a disaster for prosecutor Harry Dorfman. Through either sloppiness or intent, the San Francisco Police Department has failed to rule out the possibility that another man may be the killer, and the prosecution has withheld crucial evidence from Trammell's defense lawyer. And these missteps have already come back to haunt the prosecution.
• • •
Initially, Trammell was only one of several suspects. At the crime scene Paul Lozada of the SFPD gang task force compared notes with Armand Gordon, a homicide inspector. The two cops ran through a short list of possible perps. That list included Joe Berry*, a reputed member of the brutal Westmob crack syndicate, and several others.
Berry's name surfaced again on July 9. Canvassing the neighborhood, Gordon interviewed a witness who claimed to have seen Berry near the site where the car was found at roughly the time of the slaying.
A more substantive clue popped up about three months later. Sometime in September, Lozada got a call on his cell phone from an informant. The snitch, who had provided useful information in the past, pinned the murder on Berry.
All this came out at a tension-filled pretrial hearing Dec. 21 in San Francisco Superior Court. Another, quite disturbing, fact also leaked out during the courtroom standoff: despite the evidence pointing toward Berry, no police officer had ever lifted a finger to follow up the tip.
• • •
Muttering, Inspector Gordon strode into Judge Julie Tang's courtroom on the afternoon of Dec. 21. He'd been up since 2 a.m. working on a fresh homicide. "This is bullshit," Gordon said under his breath. Trammell's defense attorney, Jose Umali, was about to put Gordon in the hot seat and apparently the cop knew it.
"Sometime after the homicide I don't remember when Paul Lozada told me there was the possibility the killer might be an individual named Berry," Gordon testified, gray hair brushed back from his weathered face.
"Did that make you curious?" Umali asked.
"No," Gordon said. "Because our investigation had revealed that Johnny Trammell was the killer. So we discounted it."
"Did you do any follow-up?" Umali pressed.
"Did you make any effort to contact Mr. Berry?"
"Do you know if he's still alive?"
The detective admitted he hadn't even taken any notes regarding the tip about Berry. Eyeballing Trammell, Gordon offered an explanation. "How would a gang member or a gang sympathizer attempt to confuse a homicide investigation? They would come forward with ... names of people not involved in the homicide, just to throw us off." The cop said he'd "received hundreds and hundreds of" tips that turned out to be bogus.
Rolling his neck like a boxer warming up for a bout, Lozada took the stand. The snitch, he said, was Frank Hall, a Westmob member. Evidently, Berry (who hasn't been arrested or charged with anything related to this incident) had been ratted on by one of his own. Lozada told the court that Hall had "assisted me a few times" with accurate information.
The cop couldn't remember exactly when he'd gotten the tip from Hall, but it was "probably in September." Like Gordon, Lozada admitted that he hadn't made any written notes regarding this lead.
It gets worse.
In an apparent violation of state law, the prosecution team failed to divulge the existence of the tip to Umali until Nov. 21. Section 1054 of the California Penal Code sets a strict 15-day time limit for disclosing evidence in criminal trials. Legally, after Lozada talked to the informant, the prosecution had 15 days to tell Umali about the conversation. Yet it was at least seven weeks before Umali learned of the tip. This might all be academic if not for one thing: Hall died in the meantime. On Oct. 18 several weeks after he supposedly called Lozada with his tip Hall was ambushed and shot to death in Hunters Point. That means the defense can't call the guy as a witness, or figure out if there's any truth to his story.
"My client is permanently deprived of a fair trial," Umali argued, asking Tang to toss the case. "How can we possibly proceed to a fair trial if we're denied this witness who can exculpate [Trammell]?"
Hall's slaying remains unsolved; police figure it's gang connected.
(We tried unsuccessfully to contact Berry for this story. His phone number isn't listed, and an extensive search of the public record didn't turn up a working number or address.)
• • •
Now 24 years old, Trammell will be caged for the remainder of his life if convicted. According to sources familiar with the case, the murder weapon hasn't been found, and there's no usable forensic evidence. From the looks of it, the only thing linking Trammell to the execution is the testimony of one witness. So you'd think that Lozada and Gordon would mount a thorough, airtight investigation and make certain that Berry, a dude with an impressive criminal history, isn't, in fact, the murderer. Hell, at the very least you'd expect the cops to scrawl some notes on the tip they got and file a report.
We asked homicide inspector Maureen D'Amico if it's departmental policy to make written reports on homicide tips. "No, no, it's not," D'Amico told us, adding, "If it's a confidential informant, the officer may not take notes, in order to protect that person."
The whole scenario raises the specter of Brady v. Maryland, a case known well by every cop and prosecutor and anybody who's taken Criminal Law 101. In 1958 the state of Maryland sent John L. Brady and an accomplice to death row for gunning down a guy during a heist. Problem was, Brady didn't actually shoot the guy. His partner admitted to pulling the trigger but the prosecution buried the confession, and Brady's lawyer didn't get the evidence until after the trial.
Ruling on the case, the Supreme Court, led by Justice William O. Douglas, held that Brady had been denied equal protection under the 14th Amendment to the U.S. Constitution.
Pace University Law School professor Bennett Gershman is one of the nation's leading authorities on prosecutorial malfeasance. "Brady violations are probably the most common form of prosecutorial misconduct," Gershman, a former prosecutor in the Manhattan district attorney's office, told us. "The Chicago Tribune did a series last year documenting nearly 300 serious violations in homicide cases."
According to Gershman, prosecutors and cops who play hide-the-evidence usually get away with it. There is "virtually no discipline meted out to any offending prosecutor," Gershman said. "D.A. offices and police departments generally do not impose internal discipline. If these offices were more vigilant, and more aggressive, in training, supervision, and discipline, the problem would not go away, but it would be markedly improved."
San Francisco defense lawyer Jerrold Ladar, a former assistant U.S. attorney, says most Brady-type transgressions are the result of bungling, not intentional deception. "If somebody were intentionally setting out to hide evidence, it would be easy," Ladar said. "But most of the time 90 percent of the time it's sloppiness."
In the Trammell case, prosecutor Dorfman implied that the SFPD had blown it. "We would certainly have preferred more prompt disclosure of what Mr. Hall had to say," he told us. "Obviously, nobody could have foreseen that Mr. Hall would be murdered in mid October."
• • •
As a jurist, Tang, an ex-prosecutor, isn't known as a bleeding heart liberal. However, she wasn't much impressed with the testimony of Lozada and Gordon. Ruling Dec. 21, Tang chose to let the case go to trial no date has been set but in a rare move issued a factual finding of misconduct.
"I think there has been police misconduct," Tang said from the bench. "This is poor police procedure, and it does not instill public confidence in the police."
Trammell could turn out to be the right guy. He may have wasted Lewis. But this case thanks to the prosecution's time lag in disclosing evidence may not go the D.A.'s way. Should he be found guilty, Trammell, as Tang suggested, has very solid grounds to appeal and could end up walking.
Interviewed last week, Umali declined to comment for this story, except to say, "My client is innocent. He had nothing to do with this murder." If that's true and not just a generic lawyerly sound bite then the real executioner is strolling the streets, armed, vicious ... and free.
E-mail A.C. Thompson at firstname.lastname@example.org.