Public defender wants charge dismissed, tells of misconduct

San Francisco Public Defender Jeff Adachi is seeking the dismissal of a murder indictment against a city tenant-rights attorney, arguing that the prosecutor in the case committed misconduct by failing to present exculpatory evidence to a grand jury.

That prosecutor, Assistant District Attorney Andrew Ganz, is already facing misconduct charges in State Bar Court in a separate case in which he’s accused of intentionally suppressing evidence and violating a defendant’s constitutional rights when he worked in Solano County.

Adachi filed a motion Friday in San Francisco Superior Court asking a judge to throw out the indictment against his client, Carlos Argueta, adding a new twist to an already complex criminal case that was previously dismissed.

Prosecutors allege Argueta, 34, committed murder when he fatally stabbed 61-year-old James Thomas during a drunken confrontation outside a bar on a gritty stretch of Sixth Street in San Francisco in September 2015.

Judge Kay Tsenin dismissed the case after a preliminary hearing in November 2016, saying the evidence was insufficient to prove murder and supported the defendant’s claim of self-defense. Ganz disagreed with the decision and six months later took the case to a grand jury, which indicted Argueta, who is currently out on bail.

Adachi says testimony from an eyewitness and

the city medical examiner “dramatically changed” between the preliminary hearing and the grand jury proceeding. “Unhappy with Judge Tsenin’s dismissal for insufficient evidence, Ganz decided to ‘fix’ the case by either influencing the witness testimony, or worse, manipulating the testimony so that evidence of self-defense would be withheld from the grand jury,” Adachi wrote in Friday’s filing.

The San Francisco district attorney’s office pushed back on the claim, saying Adachi filed a similar motion to dismiss the indictment in August 2017, which a Superior Court judge and an appeals court judge denied.

Prosecutors said Adachi strategically filed his latest motion, alleging prosecutorial misconduct, to coincide with Ganz’s State Bar case. The district attorney’s office also said that another prosecutor was present during the grand jury proceeding, but that person was not named in Adachi’s latest motion.

“The Court of Appeal summarily dismissed a nearly identical claim, so Mr. Adachi’s recycling of the same allegations suggests his motives can only be to taint the jury pool or influence ongoing State Bar proceedings, both of which are actual misconduct,” said Max Szabo, a spokesman for the district attorney’s office.

Argueta, a former staff attorney for Eviction Defense Collaborative, is accused of stabbing Thomas around 10 p.m. on Sept. 3, 2015, outside a bar on Sixth Street between Mission and Market streets.

Argueta was celebrating the end of an internship of a colleague, Pascal Krummenacher, and both men were intoxicated. The stabbing occurred during a dispute over a red messenger bag that may or may not have belonged to Argueta.

A witness to the stabbing, Earl Harrell, testified at the preliminary hearing that Thomas had grabbed Argueta by the throat and choked him before the stabbing, but during the grand jury proceeding, Harell testified that Argueta grabbed Thomas first, Adachi said.

Additionally, Adachi said Harrell first testified that he saw a man hit Argueta or a friend with a skateboard before the stabbing, but later told grand jurors he was not sure that happened.

“Ganz knew that Harrell’s testimony at the preliminary hearing was directly contradicted by his testimony before the grand jury, but still presented Harrell’s grand jury testimony as the gospel truth,” Adachi wrote.

The other crucial witness in the case, Dr. Michael Hunter, who performed the autopsy, testified at the preliminary hearing that the fatal wound “could be consistent with Thomas charging into the knife” but he later told the grand jury the knife injury was “somewhat forceful,” Adachi said.

“At the grand jury proceedings, Ganz did not ask the medical examiner about his prior testimony, though he was well aware of its importance in establishing self-defense and accident,” he said.

A judge will rule on the motion during a hearing on Sept. 28, the same date the trial against Argueta is scheduled to start.

Ganz, meanwhile, is due back in State Bar Court on Sept. 12. He’s charged with six counts of misconduct, including intentionally suppressing evidence and violating the defendant’s constitutional rights in a 2013 murder case he tried while working for the Solano County district attorney’s office.

He is accused of not revealing a meeting he had with the medical examiner in the 2012 murder of Jessica James. During the meeting, pathologist Dr. Susan Hogan told Ganz she would not list the death as a homicide, but later testified she never met with prosecutors and “thought the manner of death was most likely a homicide,” attorneys for the State Bar said.

James’ boyfriend, 65year-old Michael Daniels, was charged in her killing but was later found not guilty.

Ganz, once a top homicide prosecutor in San Francisco, has not been prosecuting cases since being charged in April. If found culpable, he faces discipline ranging from probation to suspension to disbarment.