Next time in court: January 10, 2008, to enter pleas

At the latest hearing in the case on December 3, Judge Moscone set a January 10th date for the San Francisco 8 to officially enter pleas.

In addition the defense will call former Assistant SF District Attorney Thomas Norman to court to answer questions about why he decided to not pursue this case against some of the same defendants in 1975.

The Judge will also resolve open questions about which documents currently under seal will be unsealed, which will remain under seal, and which will be released in redacted form.

No basis to proceed, says defense

Moscone will also hear arguments January 10th about several demurrers filed by the defense. Basically a demurrer says "even if what you charged is true it is insufficient to proceed." The motions were filed on the basis that the complaint bars prosecution because of:
     Unjustified delays in charging;
     That the "serious felony" enhancements were not law at the time
         of the alleged crime;
     That the complaint is so vague and insufficient that the defendants
         cannot defend against the allegations;
     That the prior adjudication in 1975 bars re-prosecution because of
         double jeopardy and/or collateral estoppel;
     And that the conduct charged in the conspiracy count (acts between 1968
         and 1973) were the subject of other adjudications and subject to
         pleas of double jeopardy and collateral estoppel.

Collateral estoppel prevents a party to a lawsuit from raising a fact or issue which was already decided against them in another lawsuit.

April 21, 2008: Preliminary hearing for a unique case

Moscone also set April 21, 2008 for the beginning of the preliminary hearing in the SF 8 case. The judge made it clear that he considers this a unique case and if the prosecution can't make a sufficient showing with evidence at the preliminary hearing, that he is obligated to dismiss the case.

According to Attorney Chuck Bourdon "then the court won't even reach the motion to dismiss for pre-charging delay. Even if the court finds sufficient evidence to proceed at that time, the judge will then consider whether there was sufficient justification to bring the case after so many years."

What new evidence?

The defense team asked Judge Moscone to order the prosecution to meet a set compliance deadline by which they would either provide missing evidence or make clear what evidence is missing or has been destroyed. Defense attorneys were arguing that after 35 years, there either is no new evidence, or if there is, they have a right to see it.

Chuck Bourdon, who represents Francisco Torres, pointed out that latent fingerprint evidence attributed to Cisco by the prosecution, were tested in 1971 by the FBI and SF Police with negative results, were tested again in 1972 by the SF Police with negative results and again in 1975 by the FBI labs, again with no match to any of the defendants. Another 2005 print analysis request has yet to be replied to. "There are no substantiating reports in any of these results which implicate anyone in the case, yet significant information that would allow the examination of results (which would benefit the defense) have been made available."

Further arguing that there is no justification for these decades of delay, Bourdon also cited a 1977 FBI memorandum referencing comments by Frank McCoy (one of the SF police investigators present in New Orleans during the torture of John Bowman, Harold Taylor, and Ruben Scott) indicating that there was no basis for any optimism on the part of the police or prosecution given the 1975 suppression of Ruben Scott's torture statements as there was no other substantiating evidence available to them.

The Judge also declined to rule on a motion by Hank Jones' attorney, John Philipsborn, stating that the defense has a right to all exculpatory evidence in a timely manner and asking for a definitive deadline by which these matters would be resolved.

Prosecutor: "we still hope to find it [some evidence]"

David Druliner, the California prosecutor, opposed any court order that would set any deadline, but admitted that after providing over 104,000 pages of documents "we can't give you something we don't have," and that what the defense is asking for either "doesn't exist or hasn't been found yet." Noting an example he said of the shotgun alleged to be linked to the 1971 murder of Sergeant Young in San Francisco, "we don't know where the shotgun is but we still hope to find it" (this after 35 years of looking!).

Judge Moscone also stated that while the defense has no right to understand the protocols of the Phoenix Taskforce – the multi-agency program which is responsible for bringing about this prosecution – the defense does have the right to subpoena documents from all the agencies involved (The SF Police, the New Orleans Police, the FBI the California Bureau of Investigation and the Attorney Generals offices). The defense has been demanding disclosure about how this Taskforce can reopen this case when there is no new physical evidence and when charges were dropped in the 1970s for lack of evidence.

Courtroom packed

A large picket line preceded the hearing demanding the dropping of charges against the SF 8. The courtroom today was packed beyond capacity forcing some people to wait for a morning recess to attend – all the defendants were in court were part of a joint meeting which included Jalil Muntaqim and Herman Bell who remain in custody. A Berkeley High School class attended the hearing, raising everyone's energy and spirits.

The brothers who are out on bail participated in standing-room only events in both New York City and San Francisco this last weekend.

Gray Panthers report:

About ten Gray Panthers came to the SF-8 hearing today, shouted loudly at a rousing picket line that stretched over half the width of the police building, and sat through at least the morning's hearing, where we were amazed that the state would have the nerve to prosecute a murder case against eight men in the absence of any evidence. The people who came were a good mixture of old members, new members, and older members become active again. I was never so proud of being a Gray Panther.

Committee for the Defense of Human Rights
P.O. Box 90221
Pasadena, CA 91109

(415) 226-1120
E-mail: freethesf8 [at] riseup [dot] net
About CDHR