Two more former prosecutors come forward, this time about a Boudin plea deal that set a killer free
Despite repeated requests, DA's office won't release video evidence
Two former San Francisco assistant district attorneys who worked on the case of a man brutally bludgeoned to death in 2019 have come forward for the first time. Mike Swart, former managing attorney of the homicide unit, and David Ezgar, who had been prosecuting the case under former DA George Gascon, both say they had nothing to do with the shocking plea deal DA Chesa Boudin reached with a former colleague in the public defender’s office, which ultimately set the killer free.
The incident was caught on surveillance video, but the district attorney’s office has refused to provide the evidence, despite multiple requests from the press. Karl Olson, a leading First Amendment attorney who represents Stop Crime SF, a group that advocates for crime victims, has also requested the video, accusing the DA of trying to “run out the clock” prior to the June 7 recall election.
JAMES MCGEE AND THE BLUDGEONING DEATH OF MOHAMMED QASIM
Around 3:38 a.m. Sept. 21, 2019 an off-duty San Francisco Police officer driving in the Potrero Hill area saw 35-year-old James McGee chasing 62-year-old cab driver Arif Mohammed Qasim with a metal pipe. The officer made a U-turn and heard loud thwack noises coming from the corner of Mariposa and Arkansas streets. He then saw McGee fleeing the scene. A 911 caller also reported hearing an argument, followed by what sounded like a “person being hit with an object.” Additional officers soon arrived and were able to detain McGee, but he managed to break away while being handcuffed and once again fled.
Officers located Qasim lying on the sidewalk in a pool of blood with massive blunt force trauma injuries to his head a face. He was pronounced dead at the scene. On a nearby wall, they also discovered a white piece of matter that appeared to be from “either the brain or skull” of Qasim, who had been beaten beyond recognition, his face caved in and his teeth lodged in his brain. A metal pipe, broken off from a nearby exercise machine, was also found near the victim.
After police caught McGee for a second time, they noted he had what appeared to be fresh blood on his clothes. When officers asked him about it, he said the blood had transferred onto his clothes after walking past an already deceased Qasim. Officers arrested McGee for murder and he was held without bail, facing a minimum sentence of 25 years in prison.
At a Dec. 19, 2019 preliminary hearing before Judge Michael McNaughton, public defender Michelle Tong asked medical examiner Ellen Moffatt if Qasim “had cocaine in his system” (he did) and whether or not Moffatt thought he was a habitual user (she did not). After a video played showing the brutal attack, Tong said that it was “open to interpretation” whether of not danger had passed for McGee, which could mean the killing was self defense. “Let's say before Mr. McGee gets ahold of the weapon, then arguably the danger has passed for the other gentlemen. So it's just, unfortunately, one person has to be arrested in this situation because there's a person that died?” Tong asks. “Because he struck the other person over the head and that person died so, yes, one person had to be arrested in this situation,” Judge McNaughton responds.
Assistant District Attorney David Ezgar points out that the officer heard repeated metal slamming and so did the 911 caller. “So the video is corroborated in terms of the number of strikes or blows that you see in that video against the victim who, the entire time, is laying on his back face up. And the coroner adds to this by saying, there were approximately 15 fractures in this man's skull, teeth are on the ground, brains on the ground, teeth lodged into his brain,” Ezgar says. “The photo we've submitted shows that literally his face was beaten in to the point where he could not be recognized. Since the victim posed no threat to the defendant and since this occurred with repeated blows and since time is not an essential requirement to form an intent to kill for it to be deliberate and for it to be premeditated, we would submit that there is sufficient evidence for both a first degree and second degree holding.”
Judge McNaughton agrees, finding sufficient evidence to hold McGee for murder under PC 187(a), “the unlawful killing of another human being with malice aforethought and without legal justification.”
Ezgar reiterates that there should be no bail for McGee, but Tong disagrees. “I don't think it should be a no bail situation. Mr McGee is homeless.”
Ezgar notes that McGee was a danger to the community, and the judge once again agrees with Ezgar’s position. “Given the circumstances of the injuries, degree of the injuries … I find by clear and convincing evidence that there are no less restrictive means to protect the public safety in this case. I'll set it at no bail.”
BOUDIN AGREES TO INVOLUNARY MANSLAUGHTER
In a transcript dated Sept. 16, 2020 at a hearing before Judge Lauretta Giorgi, the DA’s office and the public defender’s office tell the court they have reached a resolution. Tong, still representing McGee, and assistant DA Asha Jameson, now representing the People (in her first murder case), agree that McGee will enter a no contest plea to the charge of violating PC 192(b) — involuntary manslaughter, which says a person unintentionally killed another resulting from criminal negligence. Involuntary manslaughter requires no intent to kill or harm another, but still makes it a crime “when the killing was an accident.”
In perhaps the most bizarre part of the transcript, Jameson sounds as if she’s reading a disclaimer from Boudin. “Mr. McGee was originally charged with a 187(a) … After review of the video and after speaking to the victim's family, the video shows the victim retrieving a long mental object and pursuing Mr. McGee up the street,” Jameson says. “It shows the victim confronting Mr. McGee with that pipe and engaging and initiating an altercation and using that pipe to hit Mr. McGee on the side of the head first. And in light of what's shown on the video and in light of the cocaine in the victim's system, we've offered the 192. I wanted to make that record. And I would ask the Court to dismiss the balance of the complaint.” (Jameson resigned the day McGee’s plea deal was made after a decade in the DA’s office.)
John Owens, a fellow taxi driver and friend of Qasim’s, says the plea deal infuriated him and many others. “When Qasim was drunk he was a big mouth, that’s about it. Otherwise he was a very peaceful person. The idea that he could have hurt a guy almost half his age and twice his size is absurd. He was so beloved by everyone, we gave him a nickname — not everyone gets a nickname. We called him Mo. This is a guy who would take homeless people to dinner all the time. If I was to die, I would have wanted him to speak on my behalf. We lost a very, very dear friend.”
As far as Qasim’s family “agreeing he was the aggressor” and being fine with the plea agreement, Owens doesn’t believe it. “His wife is dead, and the rest of his family lives in Pakistan. I don’t think they would agree to blaming Mo as ‘the aggressor,’ or be fine with this gentleman — and I use the term ‘gentleman’ lightly for McGee — getting this light sentence for what he did. His fingerprints were all over the murder weapon, Mo’s blood and brains on the walls, and blood on McGee that he said transferred to him when he walked passed Mo. There was nothing involuntary about it.”
Former DA David Ezgar pointed to the evidence he presented at the preliminary hearing. “I argued for a holding on the charges that I believed were supported by the evidence. The judge at the preliminary hearing found there was probable cause to believe that the defendant had committed those charges. My arguments regarding why the defendant should be held to answer are in the transcript of that hearing,” he said. “I left the office shortly after the preliminary hearing and had no further involvement with the case. I had no involvement in the plea agreement that was reached after I left the office.”
Mike Swart, who initially charged McGee, was one of seven seasoned prosecutors fired by Boudin just after he took office. “The case was charged as a murder and I understand the case was plead out to an agreed term of jail for just over a year. I never anticipated such a low term of incarceration when I charged that case. The victim’s face was smashed in with repeated strikes by a metal bar and was unrecognizable to the point that he could not be facially identified. I had no part in the plea negotiations as Boudin had fired me. Had I still been the managing attorney of the homicide unit, I would have never agreed to the plea.”
Another attorney who asked for anonymity for fear of retribution, said even more egregious was Boudin allowing McGee to plea “no contest” rather than having him plead guilty. “That’s outrageous. Is it Boudin’s position that the defendant didn’t mean to hit the victim despite repeated strikes? How is that involuntary?” He also questioned the ethics of the agreement. “Someone should ask Boudin if he believes he had a conflict of interest when he made the deal because Michelle Tong had announced she was running for judge at the time. Boudin was her colleague in the public defender’s office and he endorsed her. Did Tong come to him personally for this deal? I bet she did, because the prosecutor in the case would not have.”
On Dec. 29, 2020, public defender Tong and yet another assistant DA, Dane Reinstedt, came before Judge Brendon Conroy for the sentencing of James McGee.
“I believe all the other charges have been dismissed already,” Conroy says.
“They have,” Reinstedt confirms.
Conroy then turns to McGee. “You'll be sentenced pursuant to 1170(h), that
is, it will be a split sentence. On that four-year sentence, you'll serve actual time in custody of 466 days, of good time credits of 466 days, for a total of 932 days. The balance is to be served on mandatory supervision … You'll be released today.”
Conroy reminds McGee that he must report to probation, then says, “Alright then. Good luck, Mr. McGee.”
‘RUNNING OUT THE CLOCK BEFORE THE RECALL’
On May 20, 2022, attorney Karl Olson sends an email to Nicole Moore at SFDA. “Attached is an Immediate Disclosure Request from my client StopCrimeSF. Given the simple nature of the request, we would hope and expect that it would be fulfilled on Monday.”
On May 23, Moore responds, “As I have not been able to complete the search for and review of records, our office will need additional time to respond to this request. The law provides that we have an additional 14 days to search for records, and also consult with any other agency regarding the disclosure of such records. I will endeavor to respond as promptly as possible.” Moore also says the deputy who handled the case is no longer with the office.
Olson fires back. “We do not believe this response is satisfactory and a 14-day extension does not comply with the law. There is nothing in the nature of this request which would warrant such an extension. Moreover, even if the DA’s office does not have the records requested (which is not at all clear), it certainly has constructive possession of he record. The fact that the deputy who handled the case for the DA’s office may not be with the office any more is no excuse; surely the deputy would not have taken exhibits with him/her. For the above reasons, we reiterate our demand that the records be produced as soon as possible as an Immediate Disclosure Request under the Sunshine Ordinance and pursuant to the PRA.”
Olson tells Moore that he shared her email with an individual who spent many years with the SFDA’s office. “This individual commented: ‘When I was there, even if the files were in storage it would take half a day max to get them.’ It seems to me that if the DA’s goal is to fulfill our PRA/Immediate Disclosure request promptly, and not to run out the clock until after a certain election June 7, it shouldn’t take more than a half a day to fulfill our request.”
As of June 6 — one day before the election — Boudin’s office has not complied with the request.