Hours after a 65-year-old woman was killed and two men were injured in an Oceanview shooting the morning of March 29, San Francisco police picked up a Vallejo man in the Portola area and booked him on suspicion of murder.
But Jonathan Santos, 24, was released the following week and the charges were dropped for the killing of Lian Xiu Wu.
Either the police had gotten the wrong man or there simply wasn’t enough evidence to charge the right one.
It turns out this is not an anomaly in San Francisco.
Since 2015, about 15 percent of all people arrested and booked on suspicion of murder have been released without charges, according to the District Attorney’s Office. In 2016, for instance, of the 43 people booked into County Jail on suspicion of murder, 36 — or 86 percent — were charged with murder.
Even though San Francisco prosecutors charge most people who are arrested for murder, two counties to the south have an even higher murder charge rate, but exactly why is up for debate.
One prominent argument is that police sometimes too quickly arrest suspects without enough evidence, which does not augur well for prosecutions. That’s in part due to the nature of prosecuting cases in The City, where liberal San Francisco juries are said to be loathe to convict.
But a District Attorney’s Office spokesperson said such cases, and prosecution rates, must be dealt with on an individual basis and cannot be generalized.
“We charge cases based on the facts and the law. Where we either lack sufficient evidence to meet
our burden of proof, or if we are unable to meet our ethical obligations to only charge cases that we believe we can prove in a court of law, charges will not be filed,” said District Attorney’s Office spokesperson Max Szabo, adding that his office and the Police Department have a close
The standard for prosecutors is to convince a jury that a suspect is guilty beyond a reasonable doubt, which is higher than the probable cause that police need to make an arrest.
Deputy Public Defender Rebecca Young said that often people are arrested on tips, but then physical or other evidence isn’t there to support a charge.
“They don’t have enough [evidence] and they have to let the person go because they have to make their filing decision in 48 hours,” she said, noting that there is often pressure to make an arrest and charge someone for such crimes.
San Francisco State University lecturer and former San Francisco police Officer Jim Dudley said there are a number of factors to consider when charging for murder in The City. First, prosecutors are wary of weak cases and want to secure a conviction, so they are more conservative when it comes to charging people.
“San Francisco [prosecutors] … want to win the cases and so they will not charge for a variety of reasons,” said Dudley. “They want proof positive for the highest chance for conviction.”
The potential for unreliable witnesses play into such calls, too, but so does the often liberal jury pools in The City, who are harder to convince of a defendant’s guilt than in other counties, said Dudley.
Another explanation for why there are more arrests than murder charges may have something to do with police homicide clearance rates, which essentially measure their case solution rate. Police count each arrest as a clearance in their homicide cases, but they only apply to arrests made, not when charges are filed.
The Police Department’s 60 percent clearance rate in 2015, for instance, counted arrests of all the homicides committed but not the number of defendants actually charged with murder.
Police did not respond to requests for comment.
At least once in recent years police have released a suspect’s mug shot to the media, and ultimately the public, even if there is no subsequent charge.
In October 2016, Kevin Epps, a San Francisco filmmaker, allegedly shot and killed a man inside his house. He was arrested, but days later was released without charges. Still, his face appeared in numerous media outlets as a murder suspect.
Compared to mostly suburban San Mateo County, San Francisco charges fewer murder cases, but has far more cases to deal with. For instance, in 2015 there were nine murder charges filed and nine people arrested on suspicion of murder in San Mateo County. Last year was not much different.
By comparison, in 2015, San Francisco police made 32 arrests in the 58 homicide cases it handled, but the District Attorney’s Office only charged 27, which is 84 percent. From January to March, eight of 11 people booked on suspicion of murder have been charged.
Sean Gallagher, the deputy district attorney in charge of the homicide unit in San Mateo County, said they have charged every arrest for murder mostly because of the close relationship the department has with the county’s law enforcement.
“We are there at the beginning,” he said about district attorney personnel being at the crime scene and working closely with police. “When an agency makes an arrest it’s because we’ve said we are going to file a case. So we don’t have agencies going off by themselves and arresting someone without consulting the DA’s Office.”
In San Francisco, prosecutors and police have a close relationship, but prosecutors rarely go to the crime scene, said Szabo, with the San Francisco DA’s Office.
The Santa Clara County District Attorney’s Office is closer to San Mateo County in terms of the rate of cases they charge. The Santa Clara County District Attorney’s Office charged 162 murder cases — not all single defendants — since 2013 and only rejected 13, according to the office’s spokesperson Sean Webby. That amounts to charges against 92 percent of all people arrested for murder.
Still, Santa Clara County has a lower homicide rate than San Francisco, and, like San Mateo County, has a close relationship with law enforcement, which means they are often consulted before an arrest is made.
But such comparisons are not the best way to understate what is going on, said Jennifer Jacobs, with the California District Attorney’s Association.
For one, every county and city has different law enforcement agencies and different relationships with each district attorney, she said, noting that such comparisons aren’t even looking at the many factors that go into charging a particular case.
“You’d almost have to look at every case on a case-by-case basis to have empirical data,” she said.