Defense Seeks To Chip Away at Prosecution's DNA Evidence in Ex-Supe Shirakawa Case

A judge in Santa Clara County Superior Court Tuesday set a hearing for lawyers of former Santa Clara County Supervisor George Shirakawa to argue why prosecutors must name the people whose DNA was tested during a probe allegedly linking Shirakawa to a phony campaign mailer.

Judge Griffin Bonini asked both sides to return to court on July 14 to hear a motion by Shirakawa's defense attorneys to compel prosecutors to disclose individuals excluded in the investigation that led to a match of Shirakawa's DNA.

Shirakawa, 52, one-time supervisor and San Jose City Councilman, appeared at the hearing today looking trimmer than he did last year and sporting a wide mustache.

[Previous: Ex-Supe George Shirakawa Released From Jail After Serving 7 Months Of 1-Year Term.]

He was let out of the Santa Rita Jail in Alameda County last month after serving seven months in an unrelated political corruption case from last year.

When asked by a reporter about his current criminal case, he smiled but declined to comment.

Shirakawa is accused of printing and mailing phony campaign flyers in 2010 purporting to be from Magdalena Carrasco, who was running for City Council against Xavier Campos, whom Shirakawa endorsed.

[Previous: County Supe Charged with Perjury, Other Charges.]

Campos, a former county employee of Shirakawa, ultimately defeated Carrasco in the general election that year.

The 2010 campaign mailers included a picture of a Communist flag and were sent to voters in Council District 5 to damage Carrasco among voters of Vietnamese descent who resented the North Vietnamese communist regime, according to prosecutors.

Carrasco defeated Campos in the voting in the primary last Tuesday with enough votes to unseat the incumbent.

The district attorney's office claims that its crime lab detected Shirakawa's DNA on a stamp taken from one of the 2010 campaign mailers.

Shirakawa's trial on a charge of felony false impersonation, from a grand jury indictment on Oct. 24, is scheduled to begin Sept. 15.

But Shirakawa's defense team, which includes a DNA expert, has challenged the DNA evidence and has asked in discovery motions for the prosecution to disclose the DNA profiles of people regarded as "potential candidate matches" from both state and federal DNA index systems that were later excluded in favor of Shirakawa's DNA profile.

[Previous: Audit on County Supes Expenses Finds Wrongful Charges by 1.]

The defense, including Santa Cruz lawyer Jay Rorty, also wants copies of DNA contamination logs from the Santa Clara County Crime Laboratory for six months before and six months following the testing done on the stamp from the mailer.

The defense has also requested the DNA profiles of crime lab technicians who performed the tests and lab files in the case People vs. Lukis Anderson, in which a false DNA "hit" was made at the San Jose-based lab in 2012 on a person later proved innocent.

For the hearing Tuesday before Bonini, Deputy District Attorney Traci Mason argued in a motion opposing the discovery request that the defense had no legal basis and had not shown good cause or specific facts to justify having the information.

State and federal disclosure laws pertaining to DNA databases prohibit the disclosure of the confidential DNA profiles of excluded persons and DNA lab results are not exculpatory under state evidence laws, Mason said.

California protects genetic information under criminal and civil laws and because the state uploads its DNA database into the National DNA Index System, or NDIS, the state is subject to strict federal confidentiality laws as well, and could risk being excluded from future federal data searches if DNA information is released, according to Mason.

The DNA profiles of the lab technicians are confidential and privileged and not relevant to the case, Mason said.

Shirakawa's DNA profile came up in April 2013 as a match for DNA attached to the postage stamp following a search by the state DNA Index System, which cautioned the district attorney's office that the county crime lab needed a new evidence sample from Shirakawa to verify it.

The crime lab then examined a new buccal DNA swab from Shirakawa, compared it to the DNA on the stamp and on May 20, 2013 concluded that there "is a partial low level DNA mixture with at least two contributors" that included Shirakawa, Mason said in her motion.

Mason stated that Shirakawa had the motive to help Campos, his former aide, in the 2010 city council race "by participating in the mailing of these defamatory political postcards."

Shirakawa had a deep involvement in Campos' 2010 council campaign and in a search of the defendant's San Jose home last November, investigators found "numerous internal Xavier Campos campaign materials, such as handwritten meeting notes" and other items, Mason said.

Investigators also located in his home more than a dozen mailers related to the 2010 campaign and inside a binder, they found copies of a similar mailer sent in 2008 labeling Richard Hobbs, Shirakawa's opponent for the board of supervisors election that year, a communist.

Deputy District Attorney John Chase, in a declaration filed with the court Tuesday, stated that he had furnished nearly all discovery material in the case to Shirakawa's attorney Rorty on June 7, 2013, including the new DNA evidence, and then supplied discovery material 16 other times up to this past June 3.
        
--Bay City News