By John Shanley

New District Attorney George Gascón stated that he did not attend the swearing in of New Sheriff Ross Mirkarimi because he was currently under investigation by the DA’s office and he feared the prospect of a conflict of interest.

A legal conflict is not like the concept of being in bounds or out of bounds on a basketball court. It is not about a physical space. But Gascón was correct in smelling that a conflict of interest may well arise in this situation.

There are in fact two grounds of legal precedents for DA Gascón to recuse his office in this matter. First, Ross Mirkarimi is a former DA investigator, who worked in the District Attorney’s office for six years. Numerous people who work in the office have been colleagues of the former investigator. Some may like him. Some may not. Mirkarimi doubtless knows more people in the DA’s office than the just-retired police chief who was hurriedly appointed by retiring Mayor Gavin Newsom to be DA. This is a multifaceted basis for a conflict.

Secondly, former Police Chief George Gascon and former Supervisor Mirkarimi have locked horns over Mirkarimi’s interfering with police department policies by urging what he argued was a more effective community policing model by having more beat patrols. They exchanged media barbs over this. Supervisor Mirkarimi did not support the Newsom appointed DA Gascón in his bid to be elected District Attorney in his own right. Tit for tat, Gascón did not support Mirkarimi in his campaign for sheriff.

If I were Mirkarimi’s attorney, I would be pointing out these very real conflicts:

DA Gascón, to duck conflict charges, could normally have asked the state Attorney General to take over the case. But– to add to the “it’s a small city, after all” nature of the problem –the attorney general and Mirkarimi have been on opposite sides of San Francisco political battles. Mirkarimi was a key player in his friend Terrence Hallinan’s campaign to be re-elected as DA against Kamala Harris’ successful bid for Hallinan’s job. This alone would cause the new Attorney General and her office to prudently ask to be conflicted out of taking over a Mirkarimi prosecution – leaving it in the hands of the Feds, who are not known for swift and efficient handling of misdemeanor domestic violence cases tossed into their inbox.

Those who think that even the suggestion of a “conflict” is outrageous might want to ask themselves how Gascón’s office allowed the media headline-generating access to the Mirkarimi incident police report and other documents when as a matter of routine procedure these are not made public prior to arraignment. Any reporter will tell you that it is worse than pulling teeth to get prior to court proceedings the often-damning details in an un-vetted police report. Mirkarimi’s attorney might well be curious what phone calls the reporting party, a politically connected self- described “radical feminist politico”, might have made in the three days prior to her contacting the police.

This has the odor of a political case due to both Mirkarimi’s awkward defense thus far and rookie DA Gascón’s treating the explosive situation like a bar exam question. If this nasty domestic matter is to continue beyond scheduled preliminary hearings, Gascón should stick to his original instincts and recuse himself.

John Shanley is a former Deputy City Attorney and a Contributing Editor of the Argonaut. He previously worked in the District Attorney’s office at the same time Ross Mirkarimi was employed as an investigator.