Lockyer Won’t Take Over S.F. Murder Case

State Atty. Gen. Bill Lockyer declined Tuesday to take over the controversial prosecution of an accused cop killer, saying that Dist. Atty. Kamala Harris did not abuse her “prosecutorial discretion” in rejecting the death penalty.

Though Harris made her blanket opposition to capital punishment clear in the days after Officer Isaac Espinoza’s slaying, a review by Lockyer’s office concluded that she had based her decision to seek life without parole on the facts of the case -- at least in part.

“While it’s clear that this is Dist. Atty. Harris’ philosophy, she did a review based on the facts,” Lockyer said at a news conference here. “My heart breaks for the family.... It’s awful for the community and the police force. But we did our best to review whether [Harris] abused her discretion, and she did not.”

It was a markedly different tone than Lockyer had struck a month earlier, when he indicated at a memorial for slain peace officers that he probably would take over the case. Lockyer got resounding applause when he said that if district attorneys’ charging decisions were based solely on personal philosophy, he would take the cases and “prosecute to the fullest extent of the law.”

Harris’ decision -- and her initial statements that she would never seek the death penalty on principle -- polarized San Francisco and reverberated beyond this left-leaning city, where about 70% of residents oppose capital punishment.

Police made their outrage clear, and U.S. Sens. Dianne Feinstein and Barbara Boxer, both California Democrats, said that the case warranted a death penalty prosecution. The Police Officers Assn. and Espinoza’s family had called on Lockyer’s office to step in.

Meanwhile, local supervisors backed Harris’ decision, as did the Bar Assn. of San Francisco.

On Tuesday, the police union expressed disappointment and vowed to work with sympathetic legislators on a bill that would require death penalty prosecutions in the killings of officers.

Espinoza and his partner were on patrol in an unmarked car and in plainclothes on the night of April 10 when Espinoza was gunned down by assault- weapon fire that allegedly came from a man whom he had attempted to question.

The newly elected Harris -- who along with her opponents had campaigned on an anti-death penalty platform -- assisted police in their investigation the next day. David Hill, 21, was arrested.

Within two days, Harris announced she would not seek death for Hill. That prompted an outcry from many who believed she had made the call too soon and based it solely on principle.

Harris, who is prohibited from discussing the facts of the case, emphasized her philosophical beliefs in the weeks after she announced her decision.

But she later insisted that she had based it on facts.

Lockyer’s review, which included interviews with Harris, her staff and investigators, confirmed that position, concluding that she had considered all mitigating and aggravating evidence. The intention of the suspect to kill an officer could be difficult to prove, Lockyer said, because it was dark and he was in plainclothes and driving an unmarked car. (Police said Espinoza flashed his badge before he was killed.)

Harris and her staff also considered the fact that Hill had no adult criminal record and that San Francisco juries probably would not recommend death sentences, Lockyer said.

In fact, Lockyer said, only two San Francisco juries have recommended death sentences in the last four decades, and of 15 people prosecuted in 11 killings of law enforcement officers, none had received the death penalty.

But Lockyer also made his own views clear, saying that he would have pursued the death penalty in the San Francisco case and “let a jury decide.” The suspect’s use of an assault weapon and the fact that 17 shots were fired at both officers would warrant the penalty, Lockyer said, but Harris’ call “was not an unreasonable one.”

In a statement Tuesday, Harris said she appreciated Lockyer’s review.

“My top concern is the prosecution of this case and we are moving full speed ahead to ensure Officer Espinoza’s killer never sees the light of day,” she said. “What is most important now is that we move forward as a city to stop the violence.... We need to get the guns off the streets and work together to make San Francisco safe for our residents, our youth and our police officers.”

This year has seen a particularly high number of homicides in San Francisco and Espinoza’s killing has heightened tensions between the police and residents of some of the city’s poor, mostly minority neighborhoods.

Since 1964, the attorney general’s office has taken over cases from local district attorneys under two conditions: if the district attorney has a conflict of interest that would prevent fair prosecution, or if he or she has abused prosecutorial discretion.

Lockyer said his office receives about 150 requests per year to review cases in the former category and about 100 per year in the latter. A few cases each year are taken from district attorneys because of prosecutorial misconduct, he said, although to his knowledge all have been cases that a district attorney had declined to prosecute.

Meantime, Gary Delagnes, president of the police union, said Espinoza’s family believes that the system has let down the fallen officer and his loved ones.

As for the union, which had clashed strongly with Harris’ liberal predecessor and had hoped for better relations with Harris, it was resigned to moving forward, Delagnes said.