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A letter that the Santa Clara district attorney has been sending to victims and witnesses in all gang-related cases has sparked a battle with the public defender’s office. Prosecutors say the letter does nothing more than inform recipients of their right not to have their personal information shared with the defense. But defenders say the letter employs scare tactics to stall defense investigations and silence witnesses who could clear the accused. One defender blames the letter for his client’s six-month stay in jail on a gang murder charge where prosecutors concede they had the wrong guy. The letters “effectively sabotage the case up front, before the defendant is represented by counsel, by dissuading the witness,” said Deputy PD Mark Dames, who represented the accused in that case. Santa Clara Public Defender Jose Villarreal wants to put a stop to the practice. “We asked them to refrain from sending such letters,” said Chief Assistant PD David Mann. “The DA has apparently refused to do that and I anticipate we will be litigating the issue.” Villarreal was out of the office and couldn’t be reached for comment. District Attorney George Kennedy and his staff stand by the “Important Victim/Witness Information” letter. “I think it’s a good letter. I think the public defender is wrong,” Kennedy said. “They are trying to spin it into us telling people not to talk. It does not fall into that category. They don’t even want us to get close to the line. They want us to stay 200 feet back.” The battle over the letter comes amid growing concern about witness safety in gang cases. On Sept. 8, a man was gunned down in San Francisco after agreeing to testify against the “Big Block” street gang. In Alameda, two witnesses to an Oakland shooting were killed earlier this year, days before a preliminary hearing. The family of one of the witnesses has accused the city and county of failing to protect his life and alleges that the defendant’s lawyer, Gary Sherrer, failed to redact the witnesses’ personal information when he passed papers on to his jailed client. Sherrer denies any wrongdoing. According to several defense lawyers interviewed for the story, Santa Clara’s practice is unique. Defense lawyers say there’s nothing wrong with prosecutors letting witnesses know what steps to take to prevent personal information from falling into the wrong hands, but argue that the letter paints with too broad a brush, hinting at imminent danger where none may exist. “It’s like saying, ‘Do you want to shoot yourself in the head?’ The questions are laughable. It’s tantamount to saying, if you are an idiot, sign here,” said San Francisco Public Defender-elect Jeff Adachi. “What if you had a defense attorney sending out a letter like this? Probably you would have a defense attorney charged with obstruction of justice.” The two-page form letter explains to recipients that they have been identified as a person with information in a gang investigation. Recipients are asked to fill out and return a worksheet that asks if they object to their personal information being shared with defense counsel. “You do not have to complete or return the enclosed form,” the letter states, “but if you don’t, I will not know how you feel about the release of your personal information and I will probably have to give the attorneys of the accused persons in this case the personal information about yourself that is included in police reports (including, but not limited to, your home address and telephone number).” Supervising Deputy DA David Tomkins said the office has been sending out the letter in all gang cases for more than a year. He says he’s aware of two cases where defense attorneys unsuccessfully challenged the letter. “The purpose is to advise the witness about the nature of the case they are involved in and to advise them of their rights. We are keeping their identities confidential. They have a right to talk to the defense or not talk to the defense,” Tomkins said. He said the letters are necessary. “Despite the obligation of the defense counsel, [police reports] end up in the hands of the defendants in jail,” Tomkins said. He said that at one court hearing, a judge ordered the prosecution to hand over a police report to defense counsel on the spot. Tomkins said that minutes later the defendant was paging through the unredacted report. “Cutting off all access from the defense is not what we want to do.” Tomkins said. “We’ll put defense attorneys in contact with [witnesses] or we will have them available in certain locations. That usually works.” The concern, he said, is “when the defense wants to talk to the people alone without anybody knowing about it.” But Dames says the DA is meddling with the defense’s due process rights “before there has been any showing these witnesses are in danger or are being threatened” by defendants. “It would be as if we went out and told all the witnesses, ‘You really don’t have to talk to the police or you don’t have to talk to the DA or you don’t have to show up in court unless you are subpoenaed.’” Dames says his own experience shows how the letter can hinder the defense and lead to injustice. A client, 21-year-old Andrew Anchondo, was arrested in October for a gang shooting in South San Jose. Anchondo was spotted on foot just blocks from the crime scene. Police had the murder victim’s brother, who witnessed the killing, view Anchondo standing alone handcuffed at the crime scene. He identified Anchondo as the shooter based on his clothing and partially covered tattoos, Dames said. Dames said the letter, sent out before he’d even gotten the case, essentially shut down his investigation. Potential witnesses “all indicated they did not want to talk to me, even an alibi witness for my client who could testify he was not at the shooting,” Dames said. “A mother said the letter scared the hell out of her to the point that she would not return the DA’s phone calls.” Dames asked a judge to prevent the DA from sending out the letter and to require that a second letter be sent informing recipients to disregard the first letter. Dames also asked the judge to force witnesses refusing to cooperate to appear for a conditional examination prior to the preliminary hearing, and requested sanctions. Santa Clara Superior Court Judge Robert Ambrose refused those requests. Dames said prosecutors finally dropped the charges in May, after a court-ordered lineup failed to produce a positive ID from any of the prosecution’s five witnesses. Tomkins, who supervises the DA’s gang prosecutions, admits they had the wrong guy. But he said Anchondo sat in jail for six months because his true alibi was that he was in the process of stealing tennis shoes and jewelry from a rival gang member the night of the shooting. “What this is an example of is the system working,” Tomkins said. “The system would have been working much faster if Mr. Anchondo would have been candid about what he was doing. The problem was Mr. Anchondo was out committing another crime. The fact that he sat in jail that long was his responsibility.” Because Anchondo was on parole, a robbery would send him back to prison, Tomkins said. “It’s not like he would have been out free. He is still in custody. Let’s just say we had him charged with the wrong crime,” Tomkins said. This isn’t the first time there’s been a dispute in Santa Clara over handing witness information to defense lawyers. In the 1997 Peninsula Rapist case, prosecutors obtained declarations from the victims saying they didn’t want to be contacted by the defendant’s lawyers, so Santa Clara Superior Court Judge John Ball prohibited the lawyers from contacting the victims. The Sixth District Court of Appeal reversed, finding in Reid v. Superior Court, 55 Cal.App.4th 1326, that discovery rules can’t be set aside without a sufficient showing that victims or witnesses are in danger. Defense attorneys who practice outside of Santa Clara say the public defender is right to fight. “It seems like they are crowing for good cause,” said Harold Rosenthal, a criminal defense attorney with Riordan & Rosenthal in San Francisco. “It’s one thing to express a concern for their witnesses and try to bring to [people's attention] that they might not know they have recourse in the system to prevent disclosures,” Rosenthal said. “On the other hand, there is the whole problem of manufacturing apprehension where none might exist already. Simply soliciting these kinds of comments and doing so as a matter of course with a boilerplate letter, you raise the problem of creating obstructions to the defense.” “Even when it’s put in neutral terms it’s still one-sided,” said San Francisco criminal defense attorney Marc Zilversmit. And the DA’s motive is “pretty transparent — to hope the witnesses do not cooperate with defense.” But Kennedy says the letter strikes just the right balance. “Victims have rights too. Public defenders sometimes forget that,” Kennedy said. “Victims don’t usually have counsel advising them like public defender clients do.”

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