FOR IMMEDIATE RELEASE: February 28, 2022
MEDIA CONTACT: SF Public Defender’s Office | Valerie.Ibarra@sfgov.org | (628)249-7946
Case Dismissed Mid-Trial Due to Lack of Evidence Against Man Who Spent a Year in SF Jail
Defense cites faulty police investigation, questions whether crime was committed at all
SAN FRANCISCO – On February 14, charges were dismissed against Bernardo Tamayo who spent the last year in jail awaiting trial. Mr. Tamayo was falsely accused of tampering with a vehicle, robbery with a gun enhancement, and illegal possession of a firearm. Deputy Public Defender Cris Lamb questioned whether a robbery had taken place at all and why Mr. Tamayo had been included in a police photo lineup when he did not bear any resemblance to the alleged suspect. After the Public Defender’s Office further investigated the claims reported in this incident, and the case finally went to trial, Ms. Lamb presented evidence to the judge that the alleged victim was going to perjure himself on the witness stand. The prosecution then dismissed the charges against Mr. Tamayo citing insufficient evidence.
In her opening remarks to the jury, Ms. Lamb said, “This is a cautionary tale of what can happen to an innocent person when police get tunnel vision. Tunnel vision is when your focus is so narrow that you miss glaringly obvious things that a person with clearer vision would see.”
The incident in question happened in November 2020, when a man called the police from a co-worker’s phone to report that he’d seen a person under his car tampering with the catalytic converter. The man gave varying accounts of what happened thereafter, but claimed that he attacked the suspect on the ground, and that the suspect then ran to a getaway car, where he allegedly retrieved a gun, which he used to threaten the man and steal his phone. He described the male suspect as short, skinny, Caucasian and blonde.
Mr. Tamayo’s defense team found the police investigation in this case to be problematic in many ways.
First, when the officers asked the man for the phone number of the stolen iPhone so it could be traced, the man claimed not to know the number and that he had bought it from a family member. Mr. Tamayo’s defense team later discovered that the alleged victim did not own a phone at the time he reported one stolen, and subpoenaed the family member who denied selling a phone to the man.
Second, despite an independent eyewitness offering to give a statement and contact information to the officers on scene, the officers refused to take it. Months later, Mr. Tamayo’s defense team located the eyewitness who said that they had a clear line of sight on the interaction around the car, but that the suspect never retrieved anything from the getaway vehicle and there was no gun. The eyewitness also said the suspects were African American.
Third, the only physical evidence collected at the scene was a beanie on the ground. After the police ran DNA tests on the beanie, it came up with several low level possible matches, one of whom was Mr. Tamayo who was living in Alameda County. Even though Mr. Tamayo did not match the physical description of the suspect, the investigating officer, Sgt. Gregory Skaug, used Mr. Tamayo’s picture in a photo lineup and obtained a warrant to search an East Bay residence where Mr. Tamayo was known to visit but did not live. Nothing obtained during that search could be linked to this reported incident.
Further, the way the photo lineup was conducted violated California law in several ways. The statute requires that the people in the lineup must match the description of the suspect, no one can unduly stand out from the rest, there can only be one actual suspect in the lineup, and a video must be taken of the viewing in order to detect any non-verbal cues or suggestions. None of this was followed by SFPD.
In contrast to the description of the suspect as skinny, blonde and Caucasian, Mr. Tamayo is heavy set and Latino. Mr. Tamayo also has a distinct tattoo on his face, which the others in the lineup did not. And, the reporting victim picked two men out of the lineup, claiming that the other was the driver of the getaway car. The photo line up was not recorded on video.
Despite these gross inconsistencies, Mr. Tamayo was arrested and charged with several felonies, and the prosecutor argued against letting him out of jail on bail pretrial. Mr. Tamayo then spent close to one year in jail before being brought to trial over seven months past the legal deadline.
Once in trial, Ms. Lamb presented damning evidence to the judge that the alleged victim was going to perjure himself on the witness stand. The judge then assigned the man his own counsel who reviewed the evidence and directed the man to plead the Fifth Amendment to any questions during testimony so as not to incriminate himself. This left the prosecution with no witness and insufficient evidence, so the charges were dropped.
“The entire defense team did a remarkable job uncovering the injustice that Mr. Tamayo suffered by being falsely accused of these serious charges,” said San Francisco Public Defender Mano Raju, who is pursuing legal action against the San Francisco Superior Court which has continued hundreds of criminal trials past their legal deadline, leaving many to suffer the harsh conditions of jail during the pandemic. “We need more courtrooms open for trial precisely to prevent further injustice for people like Mr. Tamayo.”
The Defense Team was led by Deputy Public Defender Cris Lamb, Co-Chair Deputy Public Defender Kelsey Ryburn, Investigator Collin Olsen, and Paralegals Susan Frommer and Marcy Diamond.
*This press release was updated on 3/1/22 to acknowledge all staff who worked on the Defense Team.