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1 SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
3 HONORABLE BRUCE E. CHAN, JUDGE PRESIDING
4 DEPARTMENT NO. 24
5 ---O0O---
6
7 THE PEOPLE OF THE )
STATE OF CALIFORNIA, )
8 PLAINTIFF, )
)SCN 232040
9 VS. )COURT NO. 19012996
)
10 KENAN SHACKELFORD, )
)
11 DEFENDANT. )
)
12 ____________________________________)
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14 REPORTER'S TRANSCRIPT OF PROCEEDINGS
15 SEPTEMBER 28, 2021
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18 A P P E A R A N C E S:
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20 FOR THE PEOPLE: HON. CHESA BOUDIN DISTRICT ATTORNEY
350 RHODE ISLAND STREET
21 NORTH BUILDING, SUITE 400N
SAN FRANCISCO, CA 94103
22 BY: RACHEL MCDANIEL
ASST. DISTRICT ATTORNEY
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24 FOR THE DEFENDANT: HON. MANOHAR RAJU, PUBLIC DEFENDER
555 SEVENTH STREET, SUITE 205
25 SAN FRANCISCO, CA 94103
BY: MARTINA AVALOS
26 DEPUTY PUBLIC DEFENDER
27
REPORTED BY:
28 JOANN M. PRIOR, CSR 9129 OFFICIAL COURT REPORTER
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1 SEPTEMBER 28, 2021

2 P R O C E E D I N G S
3 (DEFENDANT IS NOT PRESENT.)
4 THE COURT: Let's call the matter of Mr. Shackelford.
5 Appearances for the record.
6 MS. MCDANIEL: Rachel McDaniel for the People.
7 MS. AVALOS: Martina Avalos on behalf of Mr. Shackelford.
8 As we discussed yesterday, I was going to ask the court to waive
9 the appearance pursuant to the Emergency Rule subsection 5.
10 THE COURT: That's fine. It worked out just fine that he's
11 not here today.
12 I understand that in a moment the People are going to have a
13 motion.
14 For what it's worth, let me say a few things, maybe with the
15 forlorn hope that someone in the DA's office might pay
16 attention.
17 We cannot have a functioning criminal justice system unless
18 the basics are taken care of. By saying that, it is not a
19 direct criticism of the Deputy District Attorney who is in here
20 today.
21 I have seen several other instances where the fundamentals
22 of competent, professional prosecution have not occurred. A lot
23 of discussion has been given, as it should be, about reforming
24 the criminal justice system.
25 Being someone who started practicing law in December of
26 1981, I personally experienced the so-called war on drugs and
27 saw the tremendous loss of human life and potential occasioned
28 by past policies which the consensus fortunately has come to see
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1 as misguided.
2 There is no greater proof of this in my mind than my time as
3 the supervising judge of Young Adult Court. The people that I
4 interact with every Thursday are the children and grandchildren
5 of people who I represented as a lawyer.
6 The real crime was how their parents and grandparents were
7 dealt with by the system. By comparison, consider how the
8 opioid crisis has been addressed by the political leadership in
9 this country.
10 So while I agree wholeheartedly with the effort by the
11 District Attorney and the Public Defender to seek a different
12 path, I cannot express in any more certain terms my disapproval
13 of the manner in which the Office of the District Attorney is
14 being managed. We simply cannot have the current levels of
15 inadvertence, disorganization, and expect there to be any public
16 confidence in what we do here collectively.
17 Constant turnover, constant managerial reorganization, all
18 these things, whether it's intentional, whether it's reckless,
19 whether it's excusable neglect, that's not in front of me today.
20 Not to make light of the situation, but you can't run an airline
21 this way.
22 So I hope that people in the District Attorney's office will
23 shift their focus from some of the bigger issues and concern
24 themselves with the unglamorous yet necessary work of public
25 prosecution. And it goes without saying that you can't have
26 multiple lawyers on cases all the time. Things are going to
27 happen.
28 While there may be disagreements in the future about why
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1 something occurred or what the level of scienter may or may not

2 be, chaos doesn't promote the orderly administration of justice.
3 It's time to really take care of business at home instead of
4 thinking about the national or state stage. Individualized
5 consideration of these cases, individualized justice requires no
6 less.
7 People have a motion?
8 MS. MCDANIEL: Yes, Your Honor.
9 At this time, People move to dismiss the present case, take
10 a first dismissal pursuant to 1387. And we would ask for a
11 stipulation to refile.
12 MS. AVALOS: I would like, one, Ms. McDaniel to place on the
13 record what she wants the stipulation to be based on our
14 conversations with Mr. Klement and document our off-the-record
15 conversations regarding what that stipulation was.
16 THE COURT: Well, you can state what the proposed
17 stipulation is, and then counsel can either agree or disagree.
18 MS. AVALOS: That's fine. I just don't want to get it
19 wrong.
20 Off the record Ms. McDaniel stated --
21 THE COURT: Well, let's let her speak.
22 MS. AVALOS: Oh, okay.
23 THE COURT: What's the proposed stipulation as the People
24 are suggesting?
25 MS. MCDANIEL: Yes, Your Honor.
26 So the proposed stipulation is that we would refile pursuant
27 to 1387.2, and we would agree to keep this matter in front of
28 Your Honor, Judge Chan, while Mr. Shackelford can seek out
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1 services from CASC or somewhere else that would -- that are

2 enumerated in the primary caregiver diversion statute. And
3 after a period of 60 days or the end of this year, as discussed
4 off the record, we would agree to stipulate that primary
5 caregiver diversion was successfully completed by
6 Mr. Shackelford.
7 And the idea behind this would be that even though we would
8 be refiling, Mr. Shackelford would not be inconvenienced by
9 having to go essentially to the back of the line on a new case.
10 THE COURT: Do you want to agree to that or not?
11 MS. AVALOS: Absolutely not.
12 THE COURT: Okay.
13 MS. AVALOS: And I would like to place on the record, one, I
14 don't even understand what Ms. McDaniel is saying him not going
15 to the back of the line. He goes to the back of the line
16 regardless of what they're saying. So she is basically saying
17 he could start at square one and do exactly what he was doing
18 before, receiving no benefit for doing it, and he still is going
19 to the back of the line.
20 I don't understand what they are saying as if they have some
21 sort of magical procedure for upping him in the queue for trial
22 status.
23 We are opposing this dismissal. We want the court to reject
24 their request for a dismissal and instead dismiss this pursuant
25 to the defense request for dismissal for Brady violations and
26 misconduct.
27 And I'd like to put on the record the timing of what
28 happened and off-the-record discussion.
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1 Back in January of 2020 a brief three-page DNA summary was

2 discovered. It was not discovered to me personally. It was
3 discovered to my office generally, which I understand is
4 sufficient; however, they did not then e-mail it to me. They
5 did not do anything to make me aware. Again, that's not their
6 requirement. I understand that.
7 But here we are almost a year past the last day for trial
8 or, actually, perhaps slightly over a year after the last day
9 for trial. We have only been in this position because of the
10 fact that the pandemic has not allowed trials to go forward.
11 And, in essence, the People have gained an additional year where
12 they have the discovery, where they had access to the DNA, where
13 they had access to all of the information that the agents, that
14 the criminalists had.
15 We're not talking about something that came up during the
16 pandemic, which I also think would be problematic, but that's
17 not the issue before us.
18 The issue before us is that they had this in January of
19 2020, pre-pandemic. They knew that they had it because they
20 turned over the case summary. They then sat on this information
21 for over a year.
22 They also disclosed yesterday -- and maybe that piece is
23 missing for the record. Yesterday they disclosed the entirety
24 of the DNA evidence, which is massive, hundreds of pages.
25 In addition, they disclosed the log from the, I guess,
26 criminalist lab that shows all of the contaminated samples,
27 which is, in the defense opinion, Brady. It's exculpatory. It
28 is a piece that is favorable to the defense that negates
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1 prosecution evidence which satisfies the prong under Brady.

2 Now, establishing prejudice: Well, Mr. Shackelford is
3 prejudiced. It's a year after his last day. Had we had this
4 back in January we might be in a different scenario in terms of
5 negotiating. Mr. Shackelford, in good faith, has had to deal
6 with an open felony and made steps towards primary caregiver
7 diversion, has been in compliance with all of the terms of his
8 release, and he is prejudiced. His defense is prejudiced by not
9 having this information and he is personally prejudiced in terms
10 of how his life has been affected.
11 This is not the first time that this has happened. Every
12 trial that I know of that's been sent out at least in the last
13 month has had Brady issues. I personally have had them of a
14 very similar nature.
15 And Brad Allred, a managing DA came in and said in my last
16 case, "This is not Brady." Judge Lin said, "I disagree." I
17 disagree that it's not something that should have been
18 disclosed, as it's favorable, and there is a problem. I don't
19 think she was willing to go so far as to call it Brady because
20 of the issue regarding the prejudice and whether or not it could
21 have been cured.
22 But what Mr. Allred said I think was very troubling, and he
23 doubled down that this was not exculpatory. And I think it
24 really is evidence of a deep problem in their office that they
25 don't understand their ethical obligations. They are turning a
26 blind eye to it. And time and time again they are showing up
27 turning it over after we have been sent out to a trial courtroom
28 and then telling us it's our fault for not requesting it and/or
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1 then demand that we continue.

2 We cannot permit the District Attorney's office to sit on
3 Brady, sit on discovery, only to disclose it as their safeguard
4 when they don't feel like going to trial.
5 It is egregious when we've had a year and a pandemic for
6 them to sit on this to turn it over and to fulfill their ethical
7 obligations.
8 And there is no excuse for management to say, oh, well,
9 we've had different DA's in here. They are all one Chesa
10 Boudin. They are all one District Attorney. They are all one
11 entity under the law.
12 Ms. McDaniel doesn't get to come in here and say, "Not my
13 problem; not my fault." It might shield her from bar review or
14 further review or, you know, some sort of sanctions under the
15 bar analysis, but not in this courtroom. Here, the failure of
16 one is the failure of all.
17 And I just -- I'm so troubled. For me this has been three
18 trials in three weeks. Every single one there has been Brady,
19 in my opinion.
20 And I think this court knows that I -- and we've talked
21 about it off the record that I'm planning on a bigger scale
22 motion, because I have also spoken with my colleagues who have
23 experienced similar issues, and similar disregard from the DA's
24 office that they have brought this to their attention.
25 You would think that the DA's office would be taking a 1385
26 in this case and saying they won't refile based on their
27 violation. You would think that they would own up based on
28 their failure.
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1 But, again, they come in here doing nothing. Buying

2 themselves more time by dismissing and saying they are going to
3 refile and then wanting me to stipulate. I'm sorry. I find it
4 to be unethical and troubling on the part of their office for
5 not recognizing their burden, and for using this as a mechanism
6 for buying more time and starting over.
7 I don't want that. They should not get that. I want to
8 proceed either with a motion or with trial, so I am asking the
9 court to deny their dismissal and go forward.
10 THE COURT: Well, let me deal with what's in front of me,
11 which is whether or not I have the authority and whether I
12 should, if I did, to reject their request to dismiss.
13 I don't believe I have the authority to interfere with the
14 discretion of the executive branch in declining a prosecution.
15 It's a different issue in my mind if the court is presented
16 with a motion that supports some of the arguments that you've
17 made about there being a pattern or practice of discovery
18 violations that can be deemed to be constitutional violations as
19 well. So I'm not going to reject out of hand their dismissal
20 under 1385. It's for another day and another court to deal with
21 these other issues.
22 The only other thing I might add is, it's great to talk
23 about restorative justice, it's great to talk about being
24 sensitive to the right of victims, but none of this can take
25 place in a situation where, as I said, fundamentals are being
26 neglected.
27 So I understand that there may be further things to consider
28 in the future, maybe by me or by someone else, so the motion is
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1 granted. Matter dismissed.

2 Under the code, please inform Ms. Avalos of the time and
3 place when you intend to refile, if that's indeed what the
4 People choose to do.
5 Okay?
6 MS. MCDANIEL: Yes, Your Honor.
7 THE COURT: Thank you very much.
8 (Proceedings were you concluded.)
9 ---o0o---
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1 STATE OF CALIFORNIA )
) SS.
2 )
CITY AND COUNTY OF SAN FRANCISCO)
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4
5 REPORTER'S CERTIFICATE
6 I, JOANN M. PRIOR, AN OFFICIAL REPORTER OF THE SUPERIOR
7 COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF
8 CALIFORNIA, DO HEREBY CERTIFY THAT THE FOREGOING IS A TRUE AND
9 CORRECT STATEMENT OF THE TESTIMONY AND PROCEEDINGS HAD IN THE
10 WITHIN-ENTITLED MATTER AND THAT THE SAME IS A FULL, TRUE AND
11 CORRECT TRANSCRIPTION OF THE SHORTHAND NOTES AS TAKEN BY ME IN
12 SAID MATTER.
13 DATED: AT SAN FRANCISCO, CALIFORNIA, THIS 28th
14 DAY OF September, 2021.
15
16
17 ___________________________
18 JOANN M. PRIOR, CSR 9129
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