San Francisco 8 Judge Philip Moscone agreed to sign an order later this week allowing Herman Bell and Jalil Muntaqim to return to New York State for their parole hearings. Both Herman and Jalil waived their rights to be present at conditional examinations of 5 witnesses as well as agreed to not resist extradition back to California once they have made their appearances in their NY State Parole hearings. The prosecution made no objections to their move once these legal conditions were met. The arrangements and the NY State responsibility have yet to be set.

Judge Moscone had earlier ruled that conditional examinations could take place and be scheduled of prosecution witnesses that are either old or in poor health in advance of a preliminary hearing or trial. He also ruled that these examinations must meet the standards of trial, meaning that additional discovery be turned over to the defense that would allow thorough cross-examination of these witnesses. He did not, however, order the San Francisco police to provide specific areas of discovery, stating that these matters were up to the prosecution to obtain and turn over. Many items, reports and files, as well as physical evidence, remain missing in this 36-year old case.

Where's the Evidence? –
More Questions about Discovery

The Judge has yet to rule on defense requests to obtain information about the witnesses to be examined that would allow thorough investigation about their histories, competence and reliability. That ruling will be made in written form in the near future.

The prosecution is asking that two witness examinations take place in camera (not in open court) because of witness fears of personal danger. These requests appear to serve the function of instilling prejudice - implying that the defendants and their supporters represent some threat to these police witnesses. This is clearly designed to perpetuate the political goals of this prosecution and has no basis in fact. Judge Moscone will rule on this request in writing.

Rally at April 21 hearing

A large, loud, well-attended rally preceded the packed San Francisco 8 court hearing on April 21. Four of the SF 8 – Ray Boudreaux, Richard Brown, Hank Jones and Francisco Torres – joined in leading chants outside the 850 Bryant Street courthouse along with supporters from all over the Bay Area and from other West Coast cities.

"Conditional examinations" this summer?
Where's the evidence?

The main defense arguments focused on the prosecutors’ request to conduct “conditional exams” of five witnesses who are old and in poor health and so may not be available at trial. There are legal bases for their testifying in advance of the preliminary hearing and trial. But the defense is arguing that they have full rights to court-ordered discovery pertaining to these witnesses allowing them to prepare to cross examine them – particularly exculpatory evidence.

Judge Philip Moscone seemed to indicate that the standards for these exams would have to meet trial standards, and that he will address the related discovery issues, but would not issue a written ruling until the next court hearing on April 29.

FBI's prints are all over this case

Defense subpoenas make clear reference to missing exculpatory evidence including “negative comparisons” of latent prints by FBI fingerprint examiners from 1971 and 1975. “I believe that the FBI has been deeply involved in the investigation of the Ingleside murder,” according to defense attorney Chuck Bourdon, who represents Francisco Torres. Bourdon also thinks that all FBI files “have not yet been provided.” Several agencies made reports of negative results over the years. The only positive identification of any latent print (the same latent print) was made recently by an ‘expert’ who was previously disciplined for making false fingerprint reports.

Stuart Hanlon, representing Herman Bell in this case, referenced his previous defense of Geronimo Ji-Jaga Pratt – a major target of the FBI’s COINTELPRO program. Geronimo “was falsely imprisoned for 27 years by the withholding of FBI exculpatory evidence,” argued Hanlon. “This request demanding full discovery and particularly FBI evidence is more than reasonable in light of this history. This case is no different,” Hanlon pointed out.

COINTELPRO continues through the shadowy Phoenix Task Force

“The FBI and COINTELPRO are relevant to this case as COINTELPRO is a continuum through today’s Phoenix Task force,” argued Jalil Muntaqim’s lawyer, Daro Inouye. The Phoenix Task force is a multi-agency force that is difficult to formally define. It is known that it includes the US Attorney, the FBI, local police agencies including the SFPD, and the California Department of Justice. It is the umbrella organization that has reopened this case, empanelled various Grand Jury investigations and is overall responsible for this 37-year old Panther prosecution.

"Just something that the defense brings up"

David Druliner, the lead State prosecutor, replied to defense references to COINTELPRO dismissively as “an aura that exists out there,” and “just something that the defense brings up from time to time.” Apparently congressional investigations revealing the illegality of the FBI's COINTELPRO program in the 1970s are just part of that "aura."

Request by Herman Bell and Jalil Muntaqim to be returned to New York:
Parole requests pending

The April 29 hearing will also address requests from Herman Bell and Jalil Muntaqim to be returned to New York State between now and the start of the preliminary hearing in this case (likely to be scheduled for early September), in order to pursue their parole hearings. Judge Moscone indicated a willingness to agree to these requests if Herman and Jalil were to waive their rights to be present at any interim hearings in San Francisco.

Future hearings

In September, the preliminary hearing will begin (probably – court dates are always subject to change). Defense arguments will suggest that issues of double jeopardy exist as statements obtained under torture and being put forward as "evidence" by the prosecution were already at issue (and thrown out) in other 1970s cases which led to acquittal.

Remaining conspiracy charges against three

The California Appellate Court turned down the defense appeal of Judge Moscone's refusal to drop the conspiracy charges against Herman Bell, Jalil Muntaqim, and Francisco Torres, at the beginning of April. The same conspiracy charges were dropped against five of the eight defendants February 7th in the San Francisco 8 case because the statute of limitations on conspiracy is three years in California.

Judge Philip Moscone declined to dismiss the conspiracy counts against the three for technical reasons. He agreed with the prosecution that the reason the three were not able to benefit from the statute of limitations expiring in three years is because for "out-of-state" defendants the statute of limitations is tolled (held in abeyance) for the period they were "unavailable."

All eight should be treated equally

"Our motion addressed the notion that they should not be penalized for being out of state because their absence was due to involuntary incarceration..." They were not "trying to avoid prosecution and therefore treating them differently from the others doesn't serve the purpose of the statutory provision regarding tolling (counting the days that can be applied to questions of statutes of limitations)," according to defense attorney Chuck Bourdon. "We also argued that even if the tolling provision did apply that it too expired after three years whereupon the statute of limitations began to run and then expired."

Simply because the men were not in California is not enough reason to deny them their rights, the petition argues. They were all in custody and their whereabouts have been known to local, state, and federal prosecutors. "Involuntarily removed by law enforcement," they were readily available to return to California to face charges had they been brought.

The prosecution's "ridiculous" argument

The prosecution claims that because the three men were not in California the statute of limitations does not apply. "This is a ridiculous argument," according to defense attorney Stuart Hanlon, "as these men were forcefully removed from the state against their will by being imprisoned. All three were consistently available to California State prosecutors."

February 28 in court:
Judge Moscone denies defense motion to dismiss, but …

Judge Philip Moscone denied defense motions to dismiss the conspiracy count against the remaining three San Francisco 8 defendants, Herman Bell, Jalil Muntaqim (Anthony Bottom), and Francisco Torres. The defense will appeal his ruling.

At previous hearings, arguments were made to drop the remaining conspiracy charges against Herman Bell, Jalil Muntaqim, and Francisco Torres. The prosecution claims that because the three men were not in California the statute of limitations does not apply. "This is a ridiculous argument," according to defense attorney Stuart Hanlon, "as these men were forcefully removed from the state against their will by being imprisoned. Following his acquittal on charges in New York State, Cisco Torres was living in New York City. All three were consistently available to California State prosecutors."

While denying that issues about the statute of limitations and tolling (counting the days that can be applied to questions of statutes of limitations) are applicable in this case, the judge did say that the issue is not completely closed. The purpose of tolling statutes is to discourage defendants from fleeing a state to avoid prosecution by taking advantage of a statute of limitations. None of the three left the state to avoid prosecution. The statute of limitations on conspiracy is three years in California and was the basis of dismissing the conspiracy count against the other five defendants on February 7 – see below.

Murder charge remains

Seven of the men remain charged with a 37 year old murder of a San Francisco police officer – Richard O’Neal was charged only with conspiracy and is no longer a defendant in this case. Moscone said that the motion to dismiss can be renewed at the conclusion of the preliminary hearing – scheduled to begin Monday, April 21.

Appeal

According to Chuck Bourdon, Francisco Torres’ attorney, “the judgment was erroneously made” and that it relied on a case which is inapplicable to the issues presented. “The decision also ignores constitutional issues … and will be appealed to the California State Appellate Court immediately.”

"New evidence" still missing

According to the same day's San Francisco Chronicle, Gareth Lacey, spokesman for Attorney General Brown who green-lighted this prosecution, said “We have credible and strong new evidence.” Stuart Hanlon, Herman Bell’s attorney, said there is no new evidence in the case and much of the evidence – including the gun purportedly used in the shooting – has vanished. He asked the court, “so if this is true, where is it?” as it hasn’t been turned over to the defense as required by discovery laws.

Judge Moscone did ask prosecutors to give the defense a complete witness list two weeks before the preliminary hearing. He also asked the prosecution to make it possible for the defense team to have contact with Ruben Scott, who was one of the men captured in New Orleans in 1973, was tortured, and who is believed to be the main cooperating witness for the prosecution.

February 13 in court: Missing evidence questioned

The hearing on Wednesday, February 13 focused on questions by the defense of a San Francisco City Prosecutor and a retired District Attorney investigator about evidence missing from the investigator's files on the 1975 police killing. The only files turned over to the defense from the original investigation contain no police reports, no ballistics evidence, no witness interviews, and no lab files. The DA’s file did contain some notes – particularly important since the notes and correspondence referenced other materials in the possession of the prosecution. Most notably missing were reports of the fingerprint comparisons – with negative results, no matches to any of the defendants. Also absent is the memorandum prepared by then prosecutor Thomas Norman stating the reasons for not going forward with the prosecution in 1975.

Inspector Engler: investigator or gofer?

SF police inspector Joseph Engler – who is a leading member of the Phoenix Task force comprised of federal, state, and local police agencies – was also questioned about the missing evidence. He claimed that he was merely a courier who checked the 1975 file out from the SF District Attorney, delivered it to the US Attorney in January of 2005, delivered it to the State Attorney General, and then returned the file in August 2007 to the SF DA’s office.

Engler is a chief investigator on this case along with Frank McCoy and Ed Erdelatz (both retired SF police officers and now re-hired to be part of this prosecution). McCoy and Erdelatz were present in New Orleans in 1973 when Harold Taylor, John Bowman (recently deceased) and Ruben Scott were arrested and tortured. Engler started investigating this case in October of 2002 and traveled with McCoy and Erdelatz over the past years investigating the Ingleside case and questioned most of the defendants before they were charged. Under examination by defense attorney Chuck Bourdon, Engler denied knowing what was in the file he transported except to say that it did not contain any audio cassettes that he had hoped to find. He said that he made no notations of any kind about the file’s contents.

Curious? Or not?

Difficult to believe that the SF prosecutors’ files would be so incomplete or that one of the main investigators on the case (or the prosecutors themselves) would not be more curious or informed about all the absent case files (unless they were exculpatory or it somehow suited their prosecution). After all, Engler has only focused on this case and these men for the last six years.

February 7 in court: Conspiracy charges against five dropped
due to statute of limitations

On February 7, 2008 supporters of the San Francisco 8 packed the courtroom to hear arguments about the dropping of conspiracy charges against three of the brothers. All eight of the brothers were in court along with family members and many supporters including Lynne Stewart, Yuri Kochiyama, and students from Oakland’s Metwest high school.

The conspiracy counts were dropped against Ray Boudreaux, Richard Brown, Hank Jones, Harold Taylor, and Richard O'Neal last month when defense motions correctly challenged the charges on the grounds that the statute of limitations on charges of conspiracy in California (three years) had expired. The conspiracy allegations include several acts alleged to have taken place from 1968 to 1973. Richard O'Neal is now cleared of all charges while the other four face only of the single charge of alleged murder in 1971 of SF Police Sergeant John Young.

Statute of limitations: when is enough enough?

Defense attorneys argued that the remaining conspiracy charges – against Herman Bell, Jalil Muntaqim (Anthony Bottom) and Francisco Torres – should also be dropped. The prosecution is arguing that the statute of limitations is tolled (has not started yet) because the three men were not in California.

"This is a ridiculous argument," according to defense attorney Stuart Hanlon, "as these men were forcibly removed from the state against their will by being imprisoned. Following his acquittal on charges in New York State, Cisco Torres was living in New York City. All three were consistently available to California State prosecutors."

The purpose of tolling statutes is to discourage defendants from fleeing a state to avoid prosecution by taking advantage of a statute of limitations. Arguing that this was clearly not the intent of Herman Bell, Jalil Muntaqim (Anthony Bottom), and Francisco Torres, attorneys argued instead that the court should recognize that the prosecution had years to charge these men – and didn’t.

Legal harassment

Attorney Mark Goldrosen, who represents Jalil Muntaqim, also explained that Jalil was in the custody of the state of California where he served time, and he continued to be in California's legal custody (for over three years) when he was moved to New York State to face other charges. Furthermore, one of the overt acts charged in the current conspiracy count was based on alleged acts for which Jalil was convicted and has already served prison time in California. “How can the legal process try him again some 37 years later for the same acts that he already did time for?” asked Goldrosen. “This kind of legal harassment is clearly prohibited by case law.”

In 1973 there was unlimited tolling (stopping the clock) of the statute of limitations. The purpose of tolling statutes is to allay the burden imposed upon the prosecution when the defendant – whatever the alleged crime – is out of the state. In 1984 the legislature determined that unlimited tolling was unreasonable and did not serve the interests sought to be protected by statutes of limitations – namely to prevent evidence from becoming stale or unavailable, to encourage and motivate timely investigations and prosecution, and to create finality or repose after a reasonable length of time. Accordingly, the legislature passed legislation to cap the tolling period at three years after which the applicable statute of limitations would begin to run.

Chuck Bourdon, who represents Francisco Torres, made clear that the capped tolling statute – limiting the tolling period to three years – should be made retroactively available to the remaining defendants charged with conspiracy because that is what the legislature intended.

The prosecutors argued in response that “the chase should always be on.”

Previous legal developments are reported below.

January 10 in court:
Conspiracy charges against five dropped due to statute of limitations

On January 10, 2008, Judge Philip Moscone officially accepted an amended complaint by the prosecution in the San Francisco 8 trial today – in effect completely dropping charges against Richard O’Neal who was only charged with conspiracy. While he faces no further legal prosecution in the case, Richard was immediately served with a subpoena to testify at the preliminary hearing scheduled for April 21.

Ray Boudreaux, Richard Brown, Hank Jones, and Harold Taylor are now accused only of the alleged murder in 1971 of SF Police Sergeant John Young. The conspiracy counts were dropped against all five brothers when defense motions correctly challenged the charges on the grounds that the statute of limitations on charges of conspiracy in California (three years) had expired. The conspiracy allegations include several acts alleged to have taken place from 1968 to 1973.

Formal pleas a year later

Almost a year after they were charged and arrested, all eight of the brothers formally entered NOT GUILTY pleas to all of the charges.

This same case dropped in 1975

Former San Francisco District Attorney Thomas Norman was not available to testify at this hearing due to health issues. He was originally sought to explain why this same case was dropped in 1975 when he decided that there was insufficient evidence to prosecute the case. So-called “confessions” made when several brothers were arrested, tortured, and forced to sign police-scripted statements were deemed inadmissible in the 1970s. Attempts to secure Norman’s complete notes and files will be made in time for the February 7th hearing.

Harold Taylor remains free on bail

California prosecutors re-raised a request to increase bail for Harold Taylor. Florida prosecutors filed charges in December against Taylor for the alleged purchase of a controlled substance. Judge Moscone was clear that although this was the case, the dropping of the conspiracy charges against him in San Francisco cancelled out the seriousness of the Florida matter – so bail will remain the same.

Growing support

A large crowd of San Francisco 8 supporters had to wait outside in the hallway of the San Francisco Courthouse today after police officers were given early access to seats in Judge Moscone’s court. The courtroom was nevertheless overwhelmingly packed with supporters and high energy as this major unraveling of the prosecution’s case unfolded. All of the brothers felt positive about the legal developments and the growing level of public support for them.

The government's case is falling apart

This is a major victory in this case which rests on statements coerced under torture. "This is the first step in the government's case falling apart," Hanlon said.

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