(Jessica Christian/2016 S.F. Examiner)

Judge recommends 90-day suspension for SF prosecutor who failed to disclose evidence in murder case

A State Bar Court judge has recommended a 90-day suspension for a San Francisco assistant district attorney found to have negligently failed to disclose evidence that could have helped defense attorneys in a murder case.

In a decision filed Monday, Judge Pat McElroy found Assistant District Attorney Andrew Ganz culpable of four of six counts of prosecutorial misconduct stemming from a 2013 murder trial in Solano County. McElroy recognized that the suspension “would be detrimental” to Ganz’s career as a prosecutor.

“But the need to uphold the administration of justice and the ‘professional keeping of lawyers,’ and not let those with power grow ‘sloppy’ in violation of the constitutional rights of defendants, guilty or not, preempts [Ganz’s] personal career,” McElroy wrote in the 48-page decision.

The charges stem from the case against Michael Daniels in the 2012 killing of his ex-girlfriend, Jennifer Brastow, who was suffocated in a motel room in Vallejo. Ganz tried the case before joining the District Attorney’s Office in San Francisco.

Among the findings, McElroy found Ganz failed to disclose a meeting he had with the medical examiner in which evidence was discussed that suggested the murder weapon may not have been a sock that Ganz argued was used to kill Brastow.

District Attorney George Gascon had anticipated a “favorable outcome” for Ganz before he stood trial in State Bar Court in August.

A few weeks after the State Bar of California charged Ganz, Gascon expressed his support for him in an email sent to the entire District Attorney’s Office in April.

“Based upon the information I have, I am hopeful that this process will result in a favorable outcome for Andrew,” Gascon wrote in the email. “During this time, Andrew has my support.”

The District Attorney’s Office did not immediately respond to a request for comment.

Al Giannini, who represented Ganz in State Bar Court, said Wednesday morning that he is considering appealing the findings and suspension.

“The most important part of the decision which we do agree with is that there is no intentional misconduct here,” Giannini said. “The information was readily available to the defense.”

The judge found that Ganz acted with gross negligence rather than intent.

Giannini worried that publicity around the case would “make it impossible” for Ganz to pick a jury for a trial in the future.

“I am hopeful that since Andrew was cleared of any deliberate misconduct that all or some of his career will be salvageable,” Giannini said.

If no appeal is filed, the California Supreme Court will decide whether to finalize the ruling.

Public Defender Jeff Adachi has used the misconduct charges against Ganz to argue for the dismissal of a current murder case in San Francisco that Ganz tried at preliminary hearing.

Adachi claims Ganz did “substantially the same thing” in the case against Carlos Argueta as in the Daniels case by causing a witness to change their testimony during the preliminary hearing.

“Hopefully the takeaway from this for other prosecutors isn’t that he’s only going to get a tap on the wrist, but that prosecutors can and will be found accountable for falsifying and hiding evidence,” Adachi said Wednesday. “Unfortunately this kind of conduct is not uncommon.”

Adachi is still waiting for a ruling on a motion he filed to dismiss the Argueta case in part based on Ganz’s State Bar charges.

That case is currently in jury selection.

mbarba@sfexaminer.com

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