SAN FRANCISCO (BCN)—Jury selection in a case involving a confrontation with BART police is on hold while San Francisco Public Defender Jeff Adachi fights to remove the assigned judge from the case.
Adachi filed a motion on Sept. 16 seeking to remove Judge Anne-Christine Massullo from the case of Michael Smith, a 22-year-old man charged with misdemeanor battery on a police officer and misdemeanor resisting arrest.
Smith was arrested in connection with a July 29 incident at San Francisco’s Embarcadero BART station that prompted an outcry after bystander videos circulated showing BART police officers struggling with him and punching him in the head while he was pinned on his stomach.
BART police later said they were responding to a 911 call reporting an attempted robbery that included a detailed description of the suspect. They allege that Smith physically resisted when officers tried to detain him, kicking one officer in the head and throat, biting another and spitting on a third.
No robbery charge was filed, however, because the man who made the call later said no weapon had been displayed, according to police.
The case is expected to be one of the first in San Francisco to make use of officer body camera footage, with both sides seeking to argue that it favors their interpretation of events.
Adachi, who is trying the case himself, has argued that the case is an example of racial profiling, in that his client was “treated like a terrorist” by police on the basis of an uncorroborated report of a robbery, which may in turn have been inspired by a racially charged confrontation with another rider on a BART train.
In that incident, a man on the train had allegedly yelled at Smith’s girlfriend, telling her she smelled bad and calling her derogatory names. Smith, who was accompanying his pregnant girlfriend to a doctor’s appointment, told the man to stop talking to her like that before moving away, according to Adachi.
The public defender filed his motion seeking to remove Massullo, a former prosecutor, after she refused to allow the defense to present witnesses to the events leading up to Smith’s arrest or to present expert witnesses, although prosecutors will be allowed to present the 911 call that led to the police response.
The motion argues that the judge has shown consistent bias against the defense, behaved discourteously and refused to allow the defense to question jurors about their views on matters relating to racial bias, even ordering Adachi not to mention Oscar grant or “Black Lives Matter.”
“Can you imagine if we go to try the case if we can’t talk about anything that happened before?” Adachi said today. “I mean I’ve never heard anything like it.”
“We just want a fair judge, that’s all.”
Massullo filed a response denying the allegations on Sept. 26, and Adachi filed a supplement to the motion on Sept. 27 in which more than half a dozen other defense attorneys added their personal experiences with Massullo allegedly displaying bias in court.
A response by the state Judicial Council appointing a judge to address Adachi’s motion is expected by midnight tonight, according to Adachi.