Meet the new boss

What you should know about San Francisco's top homicide prosecutor

By A.C. Thompson

› acthompson@hushmail.com

It's time to take a look at Exhibit 59. Because Exhibit 59 may say a lot about the quiet figure who was tapped Feb. 2 to run the San Francisco district attorney's homicide unit.

That man, George Butterworth, 55, stands at the heart of one of the darkest chapters in local law-enforcement history.

"I don't know how he sleeps at night," Eric Safire, a longtime criminal defense attorney, says.

Exhibit 59, part of an ongoing federal lawsuit, suggests Butterworth trampled the fundamental tenets of courtroom procedure during an infamous 1990 homicide trial — and may have tried to cover up that misconduct as recently as 2002.

District Attorney Kamala Harris stands by her choice. "He has a wealth of knowledge and experience," she says. "He works really well with everyone from community people to his colleagues on the bar and on the bench. Everyone who knows him knows him to be ethical, knowledgeable, and experienced." And Butterworth does indeed have many supporters, including Al Giannini, a prosecutor and former colleague who praised him in the San Francisco Chronicle.

Butterworth declined to comment for this story.

TWO CAR THIEVES AND A MICROPHONE

The American criminal justice system is built on the concept of transparency. Before trial, during the "discovery" phase, lawyers are required to exchange the evidence they've amassed, whether it hurts or helps their cause. The failure to do so, as anyone who's seen Law and Order can tell you, is a serious breach of professional ethics and the fundamental tenets governing courtroom conduct.

When it comes to these rules, Butterworth's track record is frightful. In 1990 Butterworth, orchestrating a prosecution riddled with misconduct and misjudgments, sent two innocent men, Antoine Goff and John J. Tennison, to prison for a murder they didn't commit. They were sentenced to 27 and 25 years to life, respectively.

The evidence entered into trial consisted largely of the sketchy, ever morphing testimony of two young car thieves who claimed the men had pummeled and beaten a teenage boy before blasting him twice with a shotgun.

What never made it into the trial was a pile of evidence suggesting the police had covertly paid their star witnesses and pressured them into testifying, that they'd busted the wrong guys, and that someone other than Tennison and Goff was actually responsible for the homicide. That evidence wasn't considered during the trial, because Butterworth and the cops never turned it over to the lawyers for Tennison and Goff. As far as misconduct in the legal arena goes, it really doesn't get much worse.

Thus, in 2003 federal judge Claudia Wilken voided the men's sentences, saying her confidence in the trial was "undermined" by the evidentiary sleight of hand. In a scathing 103-page opinion, she described Butterworth's conduct as "troubling" and said when he put a key witness on the stand, he "may have deliberately engaged in artful questioning" to keep the defense from learning about the secret evidence. The men were later ruled factually innocent of the crimes they'd been jailed for.

"Is this the kind of guy we want running our homicide unit?" Randolph Daar, an attorney for Goff, asks.

It's still unclear how much of the blame for the wrongful conviction rests with Butterworth and how much lies with the cops. "I take the allegations very seriously.... Prosecutors have an absolute responsibility to disclose all evidence that's exculpatory or relevant to the case," Harris says, adding that she hired a pair of outside lawyers to probe Butterworth's role in the mess shortly after she took office. Without revealing the results of the investigation, which are confidential, the DA says she's "confident of his integrity."

BLACK BOX RECORDING

Enter Exhibit 59, a clue suggesting Butterworth may have tried to cover up his earlier activities.

Exhibit 59 is an audiotaped interview between one of the cops and one of the key prosecution witnesses. It's apparently been in Butterworth's possession since 1990. But like many, many other things, it was apparently never handed over to Tennison and Goff's attorneys before the trial, though it should've been.

It also wasn't turned over some 12 years later, when, in the process of trying to free the men, Tennison's lawyers again subpoenaed Butterworth.

Lawyers for Tennison and Goff didn't even learn of the existence of the tape until 2004, a year after the men had been released from prison. The tape was finally produced as part of the discovery process in a civil lawsuit brought by the two men over their wrongful incarceration.

According to a brief filed by Tennison's legal team, the tape, now dubbed Exhibit 59, "came from George Butterworth's file" — making one wonder why it took the prosecutor 14 years and three requests to cough up the cassette.

It's not an academic question. The whole thing makes one wonder if Butterworth has been hiding something — especially since the tape, at some point before it was given to the lawyers, was erased.

Using sophisticated digital-enhancement technology, Tennison's attorneys, a quartet of lawyers from the firm of Keker and Van Nest, were able to glean a few facts from the mysterious, long-lost tape. It is indeed a conversation between the witness and the cop. An audio expert who reviewed the tape concluded the discussion was about a "reward," perhaps referring to the cash the cops allegedly heaped on their star witnesses; that interpretation is disputed by city lawyers who are fighting the civil suit.

Harris referred questions about the cassette to the City Attorney's office, which is handling the civil litigation. "The tape in question was preserved in the District Attorney's file," says Matt Dorsey, a spokesperson for City Attorney Dennis Herrera, adding that at one point the cassette was labeled "blank." "It's my understanding that the tape is virtually inaudible and there are significant disagreements about what's on it."

Regardless of what, precisely, is documented on the tape, the entire situation is troubling to lawyers for Tennison and Goff. "The question is, 'Why wasn't the tape found before?' " Daar asks. "It's hard to come up with a logical explanation for what happened." *