San Francisco Is Paying For Jamal Trulove’s Wrongful Conviction. Will Kamala Harris?

After a jury convicted Jamal Trulove, then 25, of first degree murder in February 2010, then-San Francisco District Attorney Kamala Harris praised the “brave witness who stepped forward from the crowd.” Harris was then running for attorney general of California and in her campaign bragged about her high conviction rates as the San Francisco DA. Harris echoed what her deputy prosecutor Linda Allen said repeatedly to the jury: Priscilla Lualemaga, the only eyewitness to testify at trial about the July 2007 homicide of Seu Kuka, did so at great risk of retaliation. “She’ll never get her life back,” Allen said, adding that Lualemaga testified knowing that “maybe [she’ll] get killed over being a witness because she saw someone else kill someone.” 

Lualemaga’s identification of Trulove as the shooter who killed Kuka on a sidewalk in San Francisco’s Sunnydale housing project was the critical evidence against him. For prosecutors to win, the jury had to believe Lualemaga’s claim that just before 11 p.m. on July 23, 2007 she saw the shooting from a second-floor window when the street below was shrouded in darkness. 

The jury also had to believe Lualemaga saw the shooter despite a poor vantage point of the crime scene; her failure to pick Trulove from a photo wall she had viewed with police for hours; her evolving memory of the shooting over time; and the benefits the prosecution provided to Lualemaga and her family that would eventually total over $60,000 in living expenses. Yet the prosecution argued that Lualemaga’s testimony was credible because it came at profound personal risk. 

But there was no evidence corroborating the prosecutor’s suggestion that, as a court of appeal later described it, there were “assassins lurking on defendant’s behalf.” 

There was also no physical or forensic evidence that inculpated Trulove, and no other witnesses said he was the shooter. Trulove insisted from the beginning that he was innocent.

The case’s glaring flaws didn’t matter: in October 2010, Trulove, then a young father, aspiring actor, and hip-hop performer who had appeared on the VH1 reality television show “I Love New York 2,” was sentenced to 50 years to life.

Four years later, in 2014, a California Court of Appeal overturned his conviction based on the prosecutor’s repeated attempts to exaggerate Lualemaga’s credibility. The state’s claim that Lualemaga risked retaliation for testifying in the Trulove case was, the court said, a “yarn … made out of whole cloth.” The prosecution “did not present a scintilla of evidence at trial that defendant’s friends and family would try to kill Lualemaga if she testified against him,” the court said, and that misconduct, combined with Trulove’s trial counsel’s failure to object, gave him the right to a new trial. 

In 2015, the same prosecutor at the San Francisco DA’s office retried Trulove, but he was acquitted and walked free for the first time since his 2008 arrest. In April 2018, a federal civil jury awarded Trulove $10 million, finding that San Francisco police officers fabricated evidence against him and withheld exculpatory evidence. In March, the city’s Board of Supervisors approved a $13.1 million payment to settle the suit.

Wrongful convictions are commonplace in the criminal legal system. In June, prosecutors in Wilson County, North Carolina dismissed all charges against 81-year-old Charles Ray Finch in the 1976 murder of a grocery store clerk. Ray is the 166th person in the United States Since 1973 to be exonerated after being wrongfully convicted and sentenced to death.

But Trulove’s unlawful prosecution stands out for its immediate political implications at both the local and national level. In November, there will be an election to replace George Gascón, who was San Francisco DA when Trulove was tried for a second time. Trulove recently joined DA candidate Chesa Boudin, a public defender, to call for a unit dedicated to investigating innocence claims. And now Kamala Harris’s presidential campaign “leans into” her record as a prosecutor despite the criticism that she allowed police and prosecutorial misconduct to flourish when she later served as California attorney general. (Harris recently dismissed her critics as “self-appointed political commentators.”)

Media coverage of Trulove’s case, however, has been driven by his federal civil rights lawsuit against the police who framed him, with the role played by prosecutors pushed aside. 

But witness testimony, trial exhibits, judicial opinions, and the allegations in Trulove’s complaint show that witness manipulation did not stop with the police. These documents show that both police and prosecutors, including those at the highest levels of the DA’s office, deployed odious tactics to transform Lualemaga into a credible eyewitness.

Police suggested that Trulove was the prime suspect just hours after Kuka’s murder on July 23, 2007. That night, Lualemaga told police that she “didn’t really get a good look at the shooter,” but after she failed to identify Trulove in an interview with officers, one asked, “Are you sure it wasn’t Jamal Trulove?” Lualemaga still wasn’t sure. “No, I don’t know,” she said. 

The following evening, detectives showed Lualemaga a photo lineup that included the same picture of Trulove from the previous night. According to Lualemaga’s testimony, the detectives said they had identified the shooter and would show her his photo. Contrary to standard procedure, the six photos in the lineup included people that Lualemaga knew—and had not identified as Kuka’s shooter—as well as Trulove. Rather than bringing Lualemaga into the station to videotape this unconventional procedure, officers tape-recorded part of it in the back of their car. In this statement, Lualemaga’s “identification” of Trulove as the shooter was: “He looks like the person that could have shot [Kuka]” and “I want to say it’s him.”

At the time of Kuka’s murder, according to the complaint, Lualemaga was illegally living with her grandmother and six other people in a two-bedroom apartment in the Sunnydale housing project. On the first night that she was interviewed by police, a lead detective told her he could move her out of the neighborhood if she became a witness.

In May 2009, shortly before a key hearing in Trulove’s case where Lualemaga would identify him as the shooter, the San Francisco DA claimed it was necessary to move her from public housing into witness protection. A Jan. 12, 2010 memo filed as an exhibit in Trulove’s civil rights lawsuit shows that this arrangement was approved by Larry J. Wallace, a longtime Harris aide who followed her to the California Department of Justice when she became attorney general in 2010, and later to her Sacramento field office when she became a United States senator in 2017. In December 2018, Wallace resigned from Harris’s staff after the Sacramento Bee reported on a $400,000 settlement between Wallace and a woman who accused him of sex discrimination and retaliation at the state DOJ.

In the 2010 memo, Wallace wrote that “members of the San Francisco Police Department and I believed that Priscilla Maliolagi Lualemaga was in imminent danger if she continued to reside in the City and County of San Francisco. Therefore, our office provided them with relocation assistance via the California Department of Justice.” Lualemaga repeated that line at the 2010 trial, testifying that she moved directly into the witness relocation program from the housing project in San Francisco. But according to a deposition she gave in 2017, that wasn’t true. Instead, Lualemaga had already been living in a neighboring county for nearly a year before she entered witness protection, a fact that undermined the DA’s asserted need for relocation. 

Nonetheless, between June 1, 2009, and April 30, 2011, Lualemaga and her immediate family received a total of $62,999 in living expenses. That does not include the nearly $10,000 worth of living expenses allegedly paid separately on behalf of her sister.

At the same time, Lualemaga’s recollection that Trulove was the shooter became more certain. By the time of trial in early 2010, Lualemaga’s recollection of the offense completed the shift from “didn’t really get a good look at the shooter” and “I don’t know,” to “I want to say it’s him,” to, finally, feeling “100 percent certain” that Trulove pulled the trigger three years earlier. 

Lualemaga insisted that she was not motivated by money, but the relocation funds nonetheless created a financial incentive for her to provide more precise and certain testimony. At Trulove’s trial, however, prosecutors turned this incentive on its head. Deputy prosecutor Linda Allen pointed to Lualemaga’s participation in the witness relocation program as a reason to believe that she was truthful and testified at great risk and sacrifice. “How sure would you have to be to put your life in peril?” she asked the jury. 

Prosecutors also said that Lualemaga’s inconsistent statements could be explained by the fear that eventually drove her into the witness relocation program. “Is it so unreasonable that somebody who is now afraid she’s going to have to testify and expose herself to retaliation, maybe get killed over being a witness because she saw someone else kill someone, is it so unreasonable to think that she’s going to hesitate?” Allen asked. 

In her closing arguments, Allen asked the jury “to have the same courage that [Lualemaga] did and convict the defendant of murder.” Later, the court of appeal rebuked the prosecution for this statement based on “facts not in evidence.”

Before Trulove’s 2015 acquittal, he spent more than six years in prison separated from his four young children. Recently, he has demanded prosecutorial reform, urging San Francisco voters to cast their ballot “for the candidate who truly stands for change and who isn’t afraid to come down on prosecutors and police officers who don’t play by the rules.”

It’s an important message because prosecutors rarely face any consequences for misconduct, even egregious wrongdoing that creates lasting harm and traumatizes people and their families. Linda Allen is no exception, and today she still actively prosecutes cases in San Francisco. 

At last week’s Democratic primary debate, Harris rightly won plaudits for confronting Joe Biden on his history of opposing busing. But Harris cannot escape her past as San Francisco DA and California attorney general, which includes wrongful convictions like Trulove’s and inaction in other cases of law enforcement misconduct, including an informant scandal that consumed the Orange County DA’s office and its sheriff’s department. If Harris does not reckon with her failures in the criminal legal system, she could find herself in Biden’s position at the next debate: defending the indefensible. 

Kyle C. Barry is senior legal counsel for The Justice Collaborative.