SAN JOSE (BCN) — A Santa Clara County prosecutor today argued in Superior Court that former San Jose City Councilman Xavier Campos could be granted immunity from prosecution to testify Thursday in the felony phony mailer case against former county Supervisor George Shirakawa.
Deputy District Attorney John Chase said in a motion that because the four-year statute of limitations had passed for a potential state campaign law violation from 2010, Campos “does not face a true possibility of
prosecution” and the judge had legal standing to grant him immunity from future prosecution.
Chase’s motion was in response to one filed today by Campos attorney Gregory Ward to quash a subpoena directing Campos to testify today in a hearing in the case against Shirakawa, charged with falsely impersonating Campos’ opponent in a 2010 District 5 council election.
Judge Ron Del Pozzo ruled that Xavier Campos would have to take the stand Thursday and face questions from Chase even if the former councilman planned to cite his Fifth Amendment rights against self-incrimination.
The judge’s decision came as attorneys for Shirakawa have filed motions to exclude DNA evidence prosecutors claim implicates him in political flyers sent out during the 2010 campaign to trick Vietnamese voters into believing Campos rival Magdalena Carrasco supported the Communist regime in Vietnam.
The mailer showed a photo of Carrasco beside a Communist Vietnamese flag that is offensive to many former residents of Vietnam in the United States.
Campos defeated Carrasco by only 20 votes in the June 2010 primary and won the general election that November with 51.8 percent of the vote to her 48.2 percent. Carrasco defeated Campos’ bid for re-election last year.
According to Chase’s filing, DNA testing of several 2010 mailers located a partial DNA profile and in May 2013 — after Shirakawa was arrested on unrelated perjury and other charges — a sample of his DNA “closely resembled” the profile and a second analysis using an updated test kit “confirmed a strong similarity” between his DNA and that found on the mailer.
Shirakawa’s attorney Jay Rorty today filed a motion to exclude the prosecution’s DNA evidence that he said were extracted from two anti-Carrasco mailers.
The first mailer known as Flyer 1, being used as evidence by the prosecution, “passed through a number of hands prior to coming into police custody including those at the Carrasco headquarters” and who handed it before that “is unknown.”
When the flyer was in government custody, “the integrity of the cuttings…are in question” because one DNA lab employee in 2010 took a single cutting to test, however, another technician said it was two cuttings
she tested, Rorty stated.
There is no way for the defense to verify the testing “because the original tube and cuttings were discarded,” he stated.
The same situation occurred with a second mailer, Flyer 2, used for DNA testing, where the lab employee took one cutting, the technician reported having two and then the cuttings and tubes were thrown out, according to Rorty.
One of the technicians who removed the DNA sample could not be certain of using a sterile scalpel to extract a sample on Flyer 2, Rorty stated.
He quoted the second employee as saying that if a non-sterile utensil were used to take a DNA cutting “the integrity of the evidence was jeopardized and the results were unreliable.”
Rorty argued that prosecutors lacked foundation to establish the value of the DNA evidence and its chain of custody.
If they cannot prove that DNA linking Shirakawa to the flyers was there at the time the mailers were created, then the evidence is not relevant and would be so prejudicial it would violate his 14th Amendment due process
rights if introduced as evidence at his trial, he stated.
Shirakawa, 52, was sentenced to a year in jail in November 2013 after he resigned his District 2 Supervisor seat on March 1 that year and agreed to plead guilty to four felony counts of perjury, one count of felony
misuse of public funds and seven misdemeanors for filing inaccurate campaign and government finance reports.
In another brief filed today, Chase claimed that Shirakawa, while serving time in county jail last year, wrote a letter expressing anger with Campos, Campos’s sister Assemblywoman Nora Campos, D-San Jose and Nora’s
husband Neil Struthers implying that he “was frustrated that he is the only person taking the rap for the crime that put Xavier Campos on office.”
Chase cited the letter written by Shirakawa on March 11, 2014 from jail to Shirakawa’s longtime girlfriend in which he asked her to communicate to Campos, Nora Campos and Struthers his frustration that they were not
helping his favored candidate for City Council District 7, Maya Esparza, who ultimately lost narrowly to Tam Nguyen last November.
Chase is claiming that Shirakawa was involved in the Carrasco mailing because of his participation in Xavier Campos’ 2010 campaign and that Nora Campos that year donated $5,000 to Shirakawa’s campaign after the
mailers were sent and her brother finished ahead of Carrasco in the 2010 primary.
Nora’s husband Struthers was the head of a local labor organization and active in local politics, according to Chase.
The letter instructed Shirakawa’s girlfriend to “call Neil…& Xavier and them and Nora to help Maya. I’m really p—-! Tell them I don’t care about politics or if they don’t like her…Tell Xavier I’m really
Chase stated that he believed Shirakawa wrote the letter because he “believed that these individuals owed him something because of what he did to get Xavier Campos elected.”