Court Update: SF 8 to enter pleas January 10th

In addition the defense will call former
Assistant SF District Attorney Thomas Norman to
court to answer questions about why he decided to
not pursue this case against some of the same defendants in 1975.

The Judge will also resolve open questions about
which documents currently under seal will be
unsealed, which will remain under seal, and which
will be released in redacted form.

Moscone will also hear arguments January 10th
about several demurrers filed by the defense.
Basically a demurrer says “even if what you
charged is true it is insufficient to proceed.”
The motions were filed on the basis that the
complaint bars prosecution because of:
* Unjustified delays in charging;
* That the “serious felony” enhancements were
not law at the time of the alleged crime;
* That the complaint is so vague and
insufficient that the defendants cannot defend against the allegations;
* That the prior adjudication in 1975 bars
re-prosecution because of double jeopardy and/or collateral estoppel;
* And that the conduct charged in the
conspiracy count (acts between 1968 and 1973)
were the subject of other adjudications and
subject to pleas of double jeopardy and collateral estoppel.

Collateral estoppel prevents a party to a lawsuit
from raising a fact or issue which was already
decided against them in another lawsuit.

Moscone also set April 21, 2008 for the beginning
of the preliminary hearing in the SF 8 case. The
judge made it clear that he considers this a
unique case and if the prosecution can’t make a
sufficient showing with evidence at the
preliminary hearing, that he is obligated to
dismiss the case. According to Attorney Chuck
Bourdon “then the court won’t even reach the
motion to dismiss for pre-charging delay. Even if
the court finds sufficient evidence to proceed at
that time, the judge will then consider whether
there was sufficient justification to bring the case after so many years.”

The defense team asked Judge Moscone to order the
prosecution to meet a set compliance deadline by
which they would either provide missing evidence
or make clear what evidence is missing or has
been destroyed. Defense attorneys were arguing
that after 35 years, there either is no new
evidence, or if there is, they have a right to see it.

Chuck Bourdon, who represents Francisco Torres,
pointed out that latent fingerprint evidence
attributed to Cisco by the prosecution, were
tested in 1971 by the FBI and SF Police with
negative results, were tested again in 1972 by
the SF Police with negative results and again in
1975 by the FBI labs, again with no match to any
of the defendants. Another 2005 print analysis
request has yet to be replied to. “There are no
substantiating reports in any of these results
which implicate anyone in the case, yet
significant information that would allow the
examination of results (which would benefit the
defense) have been made available.” Further
arguing that there is no justification for these
decades of delay, Bourdon also cited a 1977 FBI
memorandum referencing comments by Frank McCoy
(who was one of the SF police investigators
present in New Orleans during the torture of John
Bowman, Harold Taylor and Ruben Scott) indicating
that there was no basis for any optimism on the
part of the police or prosecution given the 1975
suppression of Ruben Scott’s torture statements
as there was no other substantiating evidence available to them.

The Judge also declined to rule on a motion by
Hank Jones’ attorney, John Philipsborn stating
that the defense has a right to all exculpatory
evidence in a timely manner and asking for a
definitive deadline by which these matters would be resolved.

Dave Druliner, the California prosecutor opposed
any court order that would set any deadline, but
admitted that after providing over 104,000 pages
of documents “we can’t give you something we
don’t have,” and that what the defense is asking
for either “doesn’t exist or hasn’t been found
yet.” Noting an example he said of the shotgun
alleged to be linked to the 1971 murder of
Sergeant Young in San Francisco, “we don’t know
where the shotgun is but we still hope to find
it.” (this after 35 years of looking!)

Judge Moscone also stated that while the defense
has no right to understand the protocols of the
Phoenix Taskforce – the multi-agency program
which is responsible for bringing about this
prosecution – the defense does have the right to
subpoena documents from all the agencies involved
(The SF Police, the New Orleans Police, the FBI
the California Bureau of Investigation and the
Attorney Generals offices. The defense has been
demanding disclosure about how this Taskforce can
reopen this case when there is no new physical
evidence and when charges were dropped in the 1970s for lack of evidence.

A large picket line preceded the hearing
demanding the dropping of charges against the SF
8. The courtroom today was packed beyond capacity
forcing some people to wait for a morning recess
to attend – all the defendants were in court were
part of a joint meeting which included Jalil
Muntaqim and Herman Bell who remain in custody. A
Berkeley High School class attended the hearing,
raising everyone’s energy and spirits. The
brothers who are out on bail participated in
standing-room only events in both New York City
and San Francisco this last weekend.

- claude marks



--------------------------------------------------------------------------------

_______________________________________________
Please support these brothers by sending a donation. Make checks payable to
CDHR/Agape and mail to the address below or donate on line:

http://www.freethesf8.org/donate.html

Committee for the Defense of Human Rights (CDHR)
PO Box 90221
Pasadena, CA 91109
(415) 226-1120
FreetheSF8 [at] riseup.net