Saturday, February 05, 2011

SF DA Nancy Tung Has History of Distorting Evidence

I discovered the following account of previous misconduct on the part of Tung in an article written by Jack Cashil, who also wrote "What's Wrong With SF," which I haven't read. You can find the article which I have reprinted at

"In reading the parole hearing transcript for Steven Nary, I sensed the depth of the injustice about to unfold when San Francisco Deputy District Attorney, Nancy Tung, described Nary’s “victim,” 53 year-old Juan Pifarre.
In the way of background, Nary, an 18 year-old U.S. Navy airman at the time of the incident, has spent nearly 14 years in prison for killing Pifarre, his would-be rapist.
Pifarre, Tung testified under oath, “was an Argentinean immigrant . . . a senior financial analyst for the city of San Jose and a publisher of Horizantes, a Spanish language news periodical. He was an advocate in the San Francisco community for the Latino community . . . an advocate for low income and impoverished people and also for immigrants, populations that don’t often have a voice . . . and yes, he was gay.”
If the San Francisco DA’s office were interested in pursuing justice, and not in pacifying the city’s gay and Latino communities, Tung would have told the truth about Pifarre.
Yes, Pifarre was an immigrant, an illegal one, who got a green card through a sham marriage. Yes, he worked for the city of San Jose, but it was something of a no-show job as he was also working full time in San rancisco 50 miles away.
Yes, Pifarre was gay, but he was an angry coke-head and gay predator, who prowled co-ed dance clubs looking for vulnerable prey.
Tung also failed to mention Pifarre’s serious priors for unwanted sexual advances. As she knew, his one time attorney and neighbor, Ralph Johansen, testified at Nary’s 1999 trial that he had once defended Pifarre on an assault charge.
Apparently, Pifarre had grabbed the crotch of a 19 year-old male and asked for oral sex. This led to a fight in which both were charged with battery.
Johansen had lived downstairs from Pifarre. Many a night he saw Pifarre come home with what appeared to be young military types.
Often he heard “lots of noise, lots of screaming,” and at least once he heard a full-blown fight that culminated in a fist going through a window. Tung mentioned none of this.
Although generally fair, the presiding commissioner Jack Garner has apparently lived in California too long. After Nary confessed that he had frequented prostitutes, Garner asked, “On the morality scale . . . what was so different about the situation with Juan that caused you to do what you did?”
Nary’s appointed attorney, Gertrude Akpenyi, should have jumped up and shouted, “Outside of San Francisco, there is still a qualitative difference between soliciting a female prostitute and being anally raped by a lying, coke-crazed fat man, even if he is an advocate for the poor.”
Akpenyi, however, had been caught off guard. Garner had told Nary at the beginning of the hearing, “We’re not here to retry your case,” and Akpenyi took him at his word.
As in most parole hearings, the attorney’s role was to discuss the prisoner’s record while incarcerated, and Nary’s had been “impeccable,” Akpenyi told the panel.
In his favor, Nary had some two-dozen letters of support, offers of jobs and places to live. His psychiatric report noted “low risk for violence in the free community” and was among the best anyone had seen.
Nary had converted to Catholicism years ago, helped facilitate spiritual programs and tutor other prisoners. He had all but completed his AA degree from Coastline College, had gotten five certificates from Microsoft, and had “laudatory” marks in program after program.
“He’s a model inmate,” said Akpenyi in conclusion. “He has proved that the rehabilitation system really does work.”
“I don’t know when you had time to sleep,” said Deputy Commissioner Diane Lushbough to Nary. “You’ve done an awful lot. I want to just acknowledge that.”
None of this interested Tung. She had studied the case in depth and driven the 200 miles from San Francisco to Avenal State prison explicitly to retry the defenseless Nary.
At the beginning of the hearing, in fact, Tung presented grisly crime scene photos that took everyone by surprise. “I’m wondering why the DA has submitted this,” Akpenyi asked the equally confused commissioners.
Tung conceded that Nary had been hopelessly drunk, that Pifarre had lured him to his apartment under false pretenses, and that a sleepy Nary had pleaded with Pifarre to stop trying to penetrate him from behind.
Said Nary, who was almost assuredly slipped a date rape drug, “I was just laying there, couldn’t move, couldn’t speak.” When Nary finally got his wits about him, he hit the relentless Pifarre over the head with a glass mug by the bedside, and a fight ensued, the first in Nary’s life.
“The victim was helpless,” said Tung of a man his friends admitted at trial could be ferocious when high. Pifarre came after Nary with a towel rod. Nary wrested it away from him and jabbed him with it. When Nary slipped, Pifarre tried to gouge his eyes out, and Nary responded by choking him, likely to death.
Only In San Francisco, only with a gay and/or minority “victim,” only with a male defendant, could choking a rapist pass for “Murder in the Second Degree with Use of a Weapon.” The “weapon” was the towel rod.
In their questioning, both Tung and Garner seemed bewildered that anyone would find homosexual advances troubling.
Asked Tung, “Did this murder happen because of your temper?” In their questioning, she and Garner implied that Nary should have asked Pifarre to cry “uncle” once subdued and let him be.
“Did you have any level of curiosity about how things were going to evolve,” asked Garner of a confused, drunk, 18 year-old fighting for his life.
Tung chastised Nary for not calling 9-1-1 after he had fled Pifarre’s apartment in the early hours of the morning. That he had called the police of his own accord days later scored him no points.
Despite the absurd questions, Nary was as incapable of defending himself as Akpenyi but for a different reason: he was there to prove his very genuine remorse.
As a serious Christian, he had come to understand that his behavior leading up to that night was “sinful,” a word the commissioners had not likely heard very often.
“I felt no real purpose,” said Nary of that time in his life, “and life seemed to be a party where I could live from one experience to the next.”
He then offered a plea for contrition too comprehensive and profound for the commissioners to understand even if they had wanted to. “Every inch of my body, mind, and soul cries out for forgiveness,” said Nary.
In a state where interest group dynamics trump individual justice, Nary never had a chance.
“The panel feels that you haven’t fully explored the totality and magnitude of this commitment offense,” said Garner at hearing’s end.
“You’re unsuitable for parole because you remain a present and unreasonable risk of danger if released and require an additional five years of incarceration.”
And we wonder why the state is bankrupt?"

SF DA Nancy Tung Misconduct Results in Dismissal of All Charges in DV Case

Recently I concluded a domestic violence case in SF after ADA Nancy Tung admitted that the prosecution was based on fabricated evidence. She waited until the jury was empanelled to do so, costing my innocent client 5 months in the county jail and his job. There follows my letter of complaint to Ms. Tung's supervisor which sets forth all the facts.

"This is the first such letter I have written in 31 years as an attorney. I try to overlook most examples of inappropriate behavior in the interest of not escalating conflict. Presently I am a felony conflicts attorney for the Bar Association of San Francisco. The prosecutorial misconduct in the above-referenced case is so egregious that I cannot help but call it to your attention.

My client, T. G., was arrested on charges of domestic violence on September 15, 2010. The alleged incident occurred during the night of 8/20 to 8/21, 2010. It was not reported by the CW until September 3, 2010. As far as I can tell your ADA Nancy Tung interviewed the CW, had her sent to a hospital for a physical and without further investigation filed felony charges against my client. Due to the exaggerated claims of ADA Tung bail was set at $100,000, a sum my client could not meet.

Mr. G. is a white male, 35 years old, small in stature with no previous criminal record (except a misdemeanor marijuana conviction from the state of Virginia when he was very young). He is committed to non-violence, founded a men’s group which focused on awareness of domestic violence and has lived peacefully in San Francisco since 1998. As a result of this unfounded prosecution he lost his job, his home and a 5 month chunk of his life.

From the beginning the defense asserted that the alleged victim was psychologically unstable, alcoholic and bent on revenge since Mr. G. broke off relations with her. She had stalked him at the restaurant where he worked until the SFPD was called in (Lieutenant Moore of the Richmond station has a vivid memory of the alleged victim’s instability. She was so concerned that she called the Berkeley [where the victim lived] mobile crisis unit on a 5150 suspicion.

Nevertheless when I tried to get ADA Tung to investigate these claims she adopted an attitude that “women never fabricate so I don’t believe you.” After a mighty struggle we obtained the phone records of both parties and provided copies to ADA Tung. These records showed several things which supported the defense theory of the case. The alleged victim had called Mr. G. between 345 and 60 times a day since their break up. On occasions when he would not answer she appeared the next morning at his San Francisco home. She was insanely jealous of his female roommate (who incidentally was a lesbian) and attacked her one evening as she got into her car.

More significantly the cell phone records showed that the two parties were not even in the same city the night of the alleged incident.

One would think that such information would cause ADA Tung to investigate the defense claims. She did not. She didn’t even read the cell phone records we gave her in mid-December. She plunged on ahead, insisting that Mr. G. was a danger to public safety and she wanted a felony against him.

After fruitless attempts to settle the case with ADA Tung, it came on for trial on January 25, 2011. A jury panel of 85 citizens (after hardships) was empanelled and pretrial motions heard. On January 27 we were scheduled to voir dire the jury. As it turned out the night before ADA Tung undertook for the first time an investigation of defense claims. She first of all ran a criminal history on her victim and found that she the victim had been arrested as the aggressor in a DV incident with another man in Berkeley in 2008. Until the eve of trial she had failed to run a comprehensive criminal history on the CW. Had this been done after the event was reported I believe it would have raised a red flag in the mind of an honorable prosecutor and led to an in depth investigation of the CW that would have persuaded her not to pursue Mr. G.

At this point ADA Tung began for the first time seeking verification of the defense story. Over the course of the night she discovered that each and every claim we had made were true. The next day, while 85 citizens waited in the hallway, Ms. Tung gave trial judge Bolanos a rambling 45 minute explanation of why she wanted to dismiss the case. By this time the MTC judge had gotten wind of this waste of judicial time and effort and demanded that ADA Tung request the dismissal in Dept 22. Again there followed a rambling incoherent speech which tended to say she could not have known earlier. Judge Lee recognized this statement for what it was and said “if Mr. Kaman could have discovered these facts you could have too.”

Judge Lee pronounced Mr. G. totally exonerated and apologized to him, a gesture ADA Tung did not have the grace to make. Judge Lee went on to say that if ADA Tung had tried this case she would have earned a not guilty verdict which would have been an embarrassment to Ms. Tung and the Office of the District Attorney.

While I am aware that prosecutors have total immunity in their charging function, this is not so with regard to their duty to investigate. ADA Tung has not only shamed herself she has opened up the City and County to a claim for damages which would be supported by case law. Shoddy investigation, or, in this case, none at all, rise to the level of prosecutorial misconduct which the law will not protect."

To date no response from my letter. Ironically the next week the same conduct repeated itself involving another defendant and ADA. That case was dismissed mid-trial when it turned out that the woman had fabricated the whole thing.

What's going on in the SF DA's domestic violence unit???