California Atty. Gen. Bill Lockyer indicated Friday that he is likely to take over the controversial prosecution of the accused killer of a San Francisco police officer because the district attorney there is philosophically opposed to the death penalty and refuses to seek it.
In remarks delivered at a memorial for slain peace officers here, Lockyer jumped into the political fray on an issue that has polarized San Francisco.
“Those who murder a law enforcement officer need to know -- and also the district attorneys should know -- that if you make charging decisions based on personal philosophy, not on facts, I will take the case away from you and prosecute to the fullest extent of the law,” Lockyer said to spirited applause from an audience of law enforcement officials and relatives of officers killed on duty over the last year.
While Lockyer did not mention San Francisco Dist. Atty. Kamala Harris by name at the gathering, his office confirmed that he has opened an informal inquiry into whether Harris abused her discretion by declining to pursue a death sentence in the murder of Officer Isaac Espinoza.
Under state law, the attorney general’s office can take over the prosecution if Harris abused her prosecutorial discretion in deciding not to seek the death penalty.
Espinoza, an undercover gang officer, and his partner were on patrol in an unmarked car April 10 when they spotted David Hill, 21, a reputed gang member.
Police say Espinoza got out of the car, identified himself as a police officer and approached Hill. According to police, Hill produced an AK-47 rifle and fatally shot Espinoza, who police said never drew his weapon.
Lockyer’s office Wednesday sent a letter to Harris “requesting information that led to her charging decision” in the Hill case, said Halley Jordan, Lockyer’s spokeswoman.
Harris said through a spokeswoman that she “welcomes Lockyer’s review of the facts and evidence in this case, and my office will fully cooperate.”
In a statement released late Friday, she held firm to her decision, but suggested it was not made solely on the basis of her philosophical stance.
“We are all grieving the loss of Officer Espinoza ... and it is natural to want an eye for an eye,” she said. “My job is to vigorously prosecute this case based on the facts and the evidence.
“We reached our decision about this case after a comprehensive review of the facts. We’re confident that if another prosecutor reviewed this case, he or she would reach the same conclusions.
“My priority is to ensure a conviction for this heinous crime,” the statement said.
Harris campaigned openly in San Francisco last fall as an opponent of the death penalty. In a city where more than 70% of voters oppose capital punishment, the stance was expected. Her two opponents in the race also opposed the death penalty.
But the murder of Espinoza triggered an uproar over Harris’ blanket opposition to capital punishment. Democratic U.S. Sens. Dianne Feinstein and Barbara Boxer have called for the death penalty in the case.
San Francisco’s police union has pressed Lockyer to take the case from Harris and seek the death penalty. Federal prosecutors are also reportedly considering filing their own capital case.
Meanwhile, the controversy has drawn an equally vocal chorus of critics who say those pushing for the death penalty are politicizing the murder.
Harris, without elaborating, has said she does not believe the facts of the case warrant the penalty. But other legal experts have said that it may be difficult to prove Hill knew Espinoza was a police officer, since he was undercover when he was killed, and that no San Francisco jury would be likely to sentence a 21-year-old defendant to death.
Espinoza was the first San Francisco officer to be slain while on duty in 10 years.
Police concede that San Francisco juries in the past have declined to recommend death sentences for even the most gruesome murders.
The powerful Police Officers Assn. knew Harris’ position on the issue when it endorsed her last December over eight-year incumbent Terence Hallinan, whom they loathed as soft on crime.
Hallinan never sought a death penalty during his tenure. And Bill Fazio, Hallinan’s and Harris’ more conservative opponent in last fall’s election, reversed his earlier position and came out against the death penalty during the campaign.
But police union President Gary Delagnes said the candidates were never asked how they would handle the prosecution of a murdered officer.
“Let’s face it. We’re cops in San Francisco. We’re realistic,” Delagnes said of the city’s aversion to capital punishment.
“But when it’s one of our own, that’s a different ballgame. When it comes to protecting the safety of our cops on the street, we believe a clear message needs to be sent.”
Delagnes’ association sent an letter to Lockyer on April 27 outlining the facts of the case and arguing that Harris had abdicated her responsibility by basing her decision “upon moral scruples and not upon the evaluation of the law and the merits of any individual case, especially this homicide.”
Delagnes said he was optimistic that Lockyer’s remarks on Friday meant that he would take the case.
Hill’s arrest came swiftly -- something African American community leaders complain was not the case in nearly two dozen other murders committed this year in the same violence-plagued neighborhood of Bayview-Hunter’s Point.
Prosecutors also moved swiftly. Harris worked side by side with officers on Easter Sunday on the case.
But controversy erupted soon after.
Within days, with Delagnes at her side, Harris announced she would not seek the death penalty. Officers bristled. Then, at Espinoza’s funeral, Sen. Feinstein took the podium and -- to a standing ovation from some and to the horror of others -- said she thought the death penalty should be sought in the case.
Feinstein’s comments triggered a movement for the death penalty that quickly gathered steam. Officers closed ranks and demanded a reversal.
“Our sense of justice cries out for this,” newly appointed Police Chief Heather Fong wrote in a letter signed by eight deputy chiefs and commanders.
Harris repeatedly has declined to change her position -- prompting hisses when she entered the courtroom at a recent hearing for Hill.
Her previous comments have centered on her belief that the death penalty is “deeply flawed.”
“For those who want this defendant put to death, let me say simply that there can be no exception to principle,” Harris wrote in an opinion article in the San Francisco Chronicle late last month.
She assured the public, however, that the charge of “special circumstance homicide” against Hill carry a mandatory life sentence without parole.
It has been a painful, early test for Harris, 39, a former Alameda County prosecutor who became the state’s first African American district attorney when she took office last January.
She has won support from at least five members of the Board of Supervisors, a group of African American and other clergy members, death penalty opponents and civil rights activists, who have rallied on her behalf on the steps of City Hall.
But the momentum to pursue a death sentence seems to have overtaken them, something that became apparent earlier this week when Boxer, who is consistently among the Senate’s most liberal members, wrote to the U.S. attorney in San Francisco, Kevin Ryan, urging him to become involved in the case.
“From what I know about this devastating crime,” Boxer wrote, “it may well have been related to violent street gang activity and I believe can be subject to the death penalty option under federal law.”
The U.S. attorney’s office in San Francisco declined to comment.
But Delagnes confirmed that San Francisco police had been in contact with federal investigators on the matter and that a federal case could be filed if the weapon allegedly used by Hill had been used in other crimes.
Opponents of the death penalty say the case has become politicized.
“Everyone’s jumping on the bandwagon,” said Michael Cardoza, a criminal defense attorney and former prosecutor who believed a death penalty sentence would be all but impossible to obtain in this case in San Francisco.
“If you look philosophically, most of society would say we don’t kill police officers. That is wrong.
“So it’s a nice political bandwagon to jump on. You can make all the political hay you want, but nobody is talking about the facts of the case.”