Imagine, for a moment, if a progressive leader—say, Chesa Boudin when he was DA—violated all the rules and almost certainly the law by downloading confidential law enforcement data and sending it to a private email address, data that was later leaked to the press for political purposes?
The billionaire oligarchs in San Francisco would respond like MAGA folks foaming over Hillary Clinton’s emails. There would be calls for at least resignation, maybe criminal charges. If it happened when London Breed was mayor, she would have made a loud public fuss. Supervisors like Joel Engardio and Matt Dorsey would be issuing press statements madly. The Chron would run editorials denouncing lawlessness at the highest levels of law enforcement.
So what happens when District Attorney Brook Jenkins does it? Nothing.
In a response to a complaint filed with the State Bar Association, Jenkins effectively admitted that, as a deputy district attorney, she accessed a file she had no legal right to see, copied it, and sent it to the private email of a colleague who also had no right to see it. That document wound up leaked to the news media and was part of the campaign to get Boudin recalled from office.
“That’s a firing offense,” Barbara Attard, who spent a career in police oversight, told me. “It’s very serious. Even to look at those records if you aren’t involved in a case is forbidden.”
In this case, Jenkins had given her resignation notice but was still working in the DA’s Office under Boudin, who she would shortly go to work to recall. In the waning days of her tenure, she accessed the rap sheet of a defendant named Troy McAllister. She then sent it to the personal email of a colleague who was also on the way out.
The information, which by law is strictly confidential, wound up as a key part of the Boudin recall.
Improperly accessing confidential criminal justice records is a crime.
Retired Superior Court Judge Martha Goldin filed a complaint with the Bar Association, which (after more than two years) finally completed its investigation.
The Bar concluded that Jenkins violations were minor, and determined that she should be placed on “diversion,” which in essence means she needs to take some classes on ethics.
But in her response to the investigation, Jenkins admitted that she accessed and shared the McAllister file:
Jenkins denied sharing the rap sheet with the campaign, claiming that many people were unhappy with Boudin’s leadership, and any one of them could have done it. Jenkins claimed that when she emailed the rap sheet, she and du Bain were sharing their frustrations with Boudin’s leadership, and du Bain mentioned the McAlister matter. Jenkins pulled up his record to familiarize herself with the case. She said that she sent the rap sheet to du Bain’s private email rather than his work account by mistake, surmising that the system must have auto-filled his personal email address when she started typing D-O-N, and she did not realize it.
As Joe Eskenazi points out in MissionLocal, it doesn’t matter why she did it:
It is a misdemeanor to disseminate sensitive materials to people who aren’t entitled to receive them. Again: This is the sort of thing that even non-attorneys in a prosecutor’s office are expected to know on Day One or damn near it.
So, it is very hard not to read Jenkins’ explanation, as recounted in the State Bar letter, as being a tacit admission of breaking the law.
“It’s outrageous,” Attard told me. “It casts her entire office in a bad light.”
Eskenazi, among others, points out the exceptional irony in this case: Jenkins will benefit from a program that she generally doesn’t allow others to use. Boudin, and other former DAs, often allowed minor offenders to go into pre-trial diversion, to get drug treatment, education, or other services as an alternative to criminal punishment. Jenkins has all but abandoned that program.
The city’s in a bit of a bind here, too. The district attorney is, presumably, going to be under the supervision of the State Bar, something short of probation but still serious. Can she continue to oversee prosecutions while her “diversion” is active?
Mano Raju, the city’s elected public defender, noted:
Prosecutors are rarely disciplined for breaches of professional ethics, so this decision by the State Bar ordering District Attorney Brooke Jenkins to take corrective action, speaks volumes. It’s ironic that District Attorney Jenkins, who often opposes diversion in court—and thereby closes off an avenue for our clients to better their lives—has now been ordered to complete professional diversion. When an elected District Attorney has a history of ethical violations, it undermines the integrity of the entire District Attorney’s Office and can lead to wrongful convictions and unjust incarceration.
In a statement, Michael Ogul, former president of the California Public Defenders Association, noted:
Prosecutors wield extraordinary power to take away a person’s freedom, and with that comes a heightened ethical duty to pursue justice, not just convictions. When the head of a prosecutor’s office has a history of ethical complaints, it becomes difficult to trust that her subordinates are being held to the high ethical standards their power demands.
So where are all the calls of outrage from the tough-on-crime crowd? Where is the statement from the tough-on-crime mayor that perhaps Jenkins should step down at least temporarily while she goes through diversion? Where are the supervisors, like Engardio (whose political career was boosted by his leadership in the Boudin recall) and Dorsey, who are all about hiring more cops and cracking down on even minor offenders?
Where is StopCrimeSF? Where are all the journalists who helped created the false crime narrative that was used against Boudin?
Crickets. Nothing. Not a word.
It’s a massive Constitutional crisis if Hillary Clinton uses a private server for emails. It’s no big deal if Donald Trump’s senior staff use a private, unsecure signal app, that includes the email of a journalist, to discuss pending war plans that could put the lives of US pilots at risk.
It’s the End of San Francisco As We Know It if Chesa Boudin tries to reform the criminal justice system. It’s just fine if Brooke Jenkins admits violating the law and it forced into diversion.
Am I missing something here, or is this what oligarchy looks like?
