CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE DISTRICT ATTORNEY

Brooke Jenkins
District Attorney

February 8, 2023

Honorable Rob Bonta

Attorney General
Office of the Attorney General
California Department of Justice

Dear Attorney General,

I write to the Department of Justice (“DOJ”) in its official capacity as having jurisdiction
over all officer-involved shootings resulting in the death of an unarmed civilian. California
Government Code section 12525.3(b)(1) (AB 1506). This notification concerns an officer
involved shooting that occurred on December 1, 2017, in the City and County of San Francisco.

Our office has discovered an internal conflict in the case that impacts our ability to
handle the matter of People v. Christopher Samayoa, Superior Court Case No. 20012531. We
will first summarize the evidence in this case, then explain the new information creating a
conflict.

THE CARJACKING AND OFFICER INVOLVED SHOOTING

ON DECEMBER 1, 2017

This incident began when decedent, Keita O’Neil, and several accomplices carjacked a
state lottery delivery van and robbed the female driver, injuring her in the process. San
Francisco police officers alerted to the incident saw the carjacked van soon after the incident and
attempted to initiate a stop, but the carjacked van fled. A highspeed pursuit ensued.

Defendant officer Christopher Samayoa and his field training officer partner became the
primary pursuit vehicle. Samayoa, a probationary officer on his fourth day in the field after
recently graduating from the police academy, was in the passenger seat. The van speeded
through residential neighborhoods and entered the Double Rock neighborhood. The pursuit
vehicle followed close behind. With the police car directly behind it, the carjacked van quickly
sped onto a dead-end street at which point the driver, O’Neil, opened the driver-side door,
abruptly exited the van while it was still in motion, and ran in the direction of the police car in
which Samayoa and his partner sat. When interviewed, Samayoa said he prepared for a felony
traffic stop, saw O’Neil open the door, rush toward him, and reach for his waistband. At that
moment, Samayoa said he believed O’Neil was reaching for a gun and that he and his partner
were in imminent danger of being killed or injured. Samayoa fired one shot that struck O’Neil in
the upper chest killing him. Body Worn Camera (“BWC”) video confirms that O’Neil exited the
moving van and moved toward the officer’s car approximately one second before the shot was
fired.

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Watchtower video footage in the area captured parts of this incident. That footage
showed the pursuit and the carjacked van door opening while it made a right turn onto a dead-
end street. O’Neil can be seen jumping from the van while it is still moving. The footage also
depicted the patrol car still moving when the lethal shot was fired. The video showed the path of
movement of O’Neil as being first straight toward the patrol car and then because all parties were
still moving, alongside the patrol car.

Samayoa deployed his BWC video moments before the incident. Because the camera was
positioned on his chest, the BWC video captured parts of the incident, but did not fully capture
the events from Samayoa’s perspective. Specifically, the BWC footage captured O’Neil jumping
from the moving vehicle and running toward the patrol car, but that footage is largely obstructed
by the windshield and “A” pillar of the patrol car in the critical moments before the shooting.
The video is obstructed in such a way that O’Neil’s hands cannot be seen at the point Samayoa
says O’Neil would have reached behind and toward his waistband. Thus, there is no way to
prove that Samayoa did not see O’Neil’s hands reach behind his back in the way that Samayoa
described.

THE EXPERT WITNESSES

At the time that this administration took over, there were five expert witness reports in
the Samayoa casefile; two experts from the civil case filed by O’Neil’s family; two experts hired
by the prior administration related only to hand analysis opining on visibility of O’Neil’s left
hand in a particular frame of the BWC footage; and one expert retained by the defense in the
pending criminal matter.

Standard expert witness testimony includes testimony regarding “perception reaction

time”; the theory that perception happens first, and reaction necessarily happens after, which can
explain that in very short time frames a reaction does not seem to be supported at the moment the
reaction occurred. One of the human-factors-expert witnesses (biomechanical engineer/accident
reconstruction) consulted in the civil litigation related to this matter completed a comprehensive
study of the incident and offered support to the “perception reaction time” argument that
Samayoa’s reaction was a reasonable reaction. More specifically, the argument is that what
Samayoa stated he had just perceived, although not completely captured on BWC because of the
car’s “A” pillar and the camera’s positioning, made his reaction reasonable. That opinion is that
Samayoa’s decision to shoot, which necessarily preceded the actual pulling of the trigger, was
made at a point in time (within .83 seconds) and from a distance (2.7 feet) when the totality of
circumstances objectively and reasonably, suggested an imminent threat of death or great bodily
injury to Samayoa or his partner. There are no experts, retained or identified, by the prior
administration that refute these perception reaction time arguments. This administration does not
know of any expert who would opine to the contrary on these facts.

Also relevant to the perception/reaction time analysis is an officer’s training. Human

reaction time studies show that with visual reaction time, like auditory reaction time, there are
two main components: (1) mental processing time-the time required to perceive, identify, and
analyze stimulus to decide the appropriate motor response, and (2) movement time-the time
required to perform the movement after selecting the motor response, while highly variable,
reflect accuracy of response within fractionalized seconds and that such accuracy will increase or
decrease with age, gender, training, adequate sleep, exercise, education, and so forth. To this
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE DISTRICT ATTORNEY

point, it is anticipated the defense will introduce with the above “perception reaction time,”
opinion the fact of Samayoa’s last live-action-tactical-training scenarios at the police academy.
This scenario designed to inform officers-in-training about the dangers of vehicle stops, involved
a traffic stop of a suspicious white van in a residential neighborhood from which two men
abruptly jumped, then ran toward the police car with the officers still seated inside and the
impact that training would have on the subjective prong for the lawful self-defense analysis. Of
note, in that training scenario Samayoa was “shot” in the head by a paintball.

NOVEMBER 21, 2021, AND THE CHARGING OF MANSLAUGHTER

Almost, three years after the incident, Defendant Samayoa was charged by arrest warrant
with violations of Penal Code section 192(a) (voluntary manslaughter), 192(b) (involuntary
manslaughter), 245(b) (assault with a semiautomatic firearm), 149 (assault under color of
authority), 246.3(a) (negligent discharge of a firearm resulting in death) and sentencing
enhancements pursuant to 12022.5(a) (personal use of a firearm). This charging occurred under
the Chesa Boudin administration.

Boudin’s administration, in choosing to proceed on a voluntary manslaughter charge and

not murder, conceded that the defendant actually believed he was in “imminent danger of being
killed or suffering great bodily injury; and … actually believed that the immediate use of deadly
force was necessary to defend against the danger.” That administration only disputed whether
that belief was reasonable under the circumstances because of a video re-enactment by Samayoa
during his voluntary statement. (Power point drafted by Assistant District Attorney James
Conger, dated 9/7/2022 citing CALCRIM 571, Imperfect Self-Defense.) That rationalization in
the arrest warrant relied solely on an argument that it could be proven beyond a reasonable doubt
that the decedent did not make a physical movement that could be reasonably interpreted as
reaching for a firearm under all the circumstances known to the Samayoa at the time, or that
Samayoa should have known there was in fact no weapon in the decedent’s hands. But both
arguments rely on 20/20 hindsight which by law is impermissible, i.e., one cannot simply state
that because there ultimately was no gun the force was therefore unreasonable. Graham v.
Connor (1989) 490 U.S. 386, 396-397.

The arrest warrant was signed on November 21, 2020, nine days before the statute of
limitations would have expired for these charges. The arrest warrant was signed by District
Attorney Investigator (DAI) Jack Friedman who was not materially involved in the investigation
of the case. The case has been proceeding since that time and is assigned to the managing
attorney of the Independent Investigations Bureau (IIB), who reports directly to the District
Attorney.

The managing attorney of IIB, Darby Williams, in preparing the case learned that the lead
investigator in the Samayoa case, District Attorney Investigator Dan Lundberg, made statements
regarding the simulation training done by Samayoa, discussed above, that appeared to be
exculpatory. The potentially exculpatory information was that when Lundberg saw the Samayoa
simulation training he noticed that the simulation was eerily similar to what actually happened in
the O’Neil case – Lundberg made that observation out loud to Homicide Unit inspectors. The
training of an officer is relevant to assessing his reactions in the actual case. The fact that
Lundberg, a peace officer, trained in use of force, and specially trained in the investigation and
evaluation of cases involving use of force, noted that the simulation was similar to what had
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE DISTRICT ATTORNEY

actually occurred would be used by the defense to show that Samayoa’s reaction was reasonable
given his training and experience. Therefore, to memorialize the statements Lundberg was
overheard making, MA Williams directed IIB team members to have Lundberg memorialize his
own statements/observations in a Memorandum of Investigation (MOI) for production to the
defense, as required by Brady.

EVENTS AFTER DECEMBER 1, 2022

AND DA INSPECTORS LUNDBERG AND FRIEDMAN

The morning of December 1, 2022, Samayoa’s counsel and the prosecution appeared in
court and picked a late January preliminary hearing date. That afternoon DAI Jack Friedman,
who signed the arrest warrant, sent me an email directly and requested to speak with me that day
about the Samayoa case. The email said he “…was made aware of a serious internal issue that
may negatively impact your decisions regarding the future of that case….” I then met with DAI
Friedman who told me the following: the former lead investigator in the case was being ordered
to write a memo regarding Friedman’s arrest warrant and whether Friedman had talked to the
lead investigator before drafting it. Friedman told me that Lundberg was the lead investigator.
As background, Lundberg was on vacation when Chesa Boudin called Freidman and asked
Friedman to write the warrant because the statute of limitations for manslaughter was
approaching. Friedman told me he agreed to draft the warrant, but that he was not sure if he
would sign it due to concerns about whether sufficient probable cause existed for the issuance of
the warrant. Friedman next told me that after he wrote the warrant he decided to sign it - but did
not explain why. Friedman was crying during this portion of the discussion so I tried to console
him and told him I could understand the pressure he was under and the tough position in which
he found himself. I advised Friedman that I would look into the matter. Friedman left me. I later
learned that he sent the former lead investigator an email directing him to stop writing the memo.
DAI Freidman then departed for a two-week vacation during which he sent me another email
iterating concerns and a desire to discuss the matter further when he returned.

Separately, after the preliminary hearing had been set, DAI Dan Lundberg approached
the managing attorney of IIB, Darby Williams. DAI Lundberg was the lead investigator of the
Samayoa case from the date of the incident through the filing of the arrest warrant – although he
did not draft or sign the arrest warrant. Unsolicited, Lundberg told her that he had information he
needed to share related to the Samayoa case and wanted to release internal “demons.” Lundberg
also became emotional when he spoke, and Ms. Williams stopped the conversation.

As background, both Dan Lundberg and Jack Friedman were DAI assigned to the IIB
unit when the Samayoa case occurred. Lundberg was the lead investigator on the Samayoa case
from the date of the incident until the arrest warrant was signed. Friedman was involved only
because he, along with the rest of DAI responded on the date of the incident, and then again
when he handled the arrest warrant. While neither Lundberg and Friedman are in the IIB unit
any longer, they both still work as District Attorney Investigators and Friedman has since been
promoted to Lieutenant.

The law is clear that District Attorneys handling a case are imputed with knowing
everything that the investigators know about a case and Brady obligations cannot be set aside
with claims that investigators did not share information. The District Attorney’s Office could
not simply ignore the fact that the lead investigator and the investigator who signed the arrest
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE DISTRICT ATTORNEY

warrant were both asking to discuss this case. There was also an apparent conflict regarding
what DAI Lundberg had been asked to memorialize and what DAI Friedman was conveying that
DAI Lundberg had been asked to do which needed to be reconciled. To memorialize the
information and keep both myself and MA Darby Williams from being witnesses to even more
information, someone had to be assigned to interview the parties.

Due to the very small group of investigators in the office, and the inability to wall off any
investigation, investigators from the public integrity section of the City Attorney’s Office
assisted with interviews of Lundberg and Friedman. The Assistant Chief of the Specialized
Units, Julius DeGuia, led the Freidman and Lundberg interviews, interviewed me, interviewed
the managing attorney of IIB, and other related DAI.

It is the consensus of persons involved in the above investigation that this information
revealed by DAI Lundberg and Friedman, and verified during interviews, constituted Brady
information. The interviews were promptly turned over to Defense counsel. The following is a
summary of the interviews:

DAI Lundberg confirmed that he was the lead investigator in the Samayoa case from the
incident date. He worked the case in collaboration with former Assistant District Attorney
(ADA) Ajean Cha assigned to IIB under District Attorney George Gascon. Once the
investigation was complete and after a three-month Grand Jury investigation, both Lundberg and
ADA Cha agreed the case was “not a fileable case.” A PowerPoint was prepared and shown to
two of George Gascon’s assistant chiefs, Sharon Woo and Frank Carruba. Lundberg stated he
heard afterwards that George Gascon discussed the case and did not direct anyone to proceed,
and Gascon had decided not to run for office again and was leaving the decision to the next
administration. When asked about Gascon punting the decision on Samayoa, Lundberg said he
received that information from DAI Jeff Pailet and ADA Cha. Lundberg also shared that after
Chesa Boudin was elected District Attorney, ADA James Conger was hired into the IIB Unit and
assigned the Samayoa case. Lundberg said there was no new information discovered between
the time ADA Cha completed her work and Conger’s assignment. Conger spoke to Lundberg
about the Samayoa case at length during which conversation Lundberg told Conger that he “had
concerns about going forward with this case.” Lundberg recounted Conger replied to the effect
of, “Well, I’ve been asked to find a path.” Conger’s statement caused Lundberg to wonder if the
investigation was objective or directed.

Lundberg also recounted a time when he, DAI Pailet and Conger were talking about the
merits of the Samayoa case – Friedman was present for this conversation. Jeff Pailet asked what
"time” Conger was looking to get from the case. Conger replied he was not looking for [jail]
time, but rather looking “to change the way SFPD does things or policy or procedures.”
Lundberg recalled Pailet fired back, “That’s not our role here. Our role is to create a case for
prosecution and see it through, not change policy.” Lundberg recalled the conversation then
quickly changed topic.

Lundberg shared that he told Conger and others, that he would not draft an arrest-warrant
for Samayoa in light of his determination that the case was “not fileable”. Lundberg specifically
told Friedman, his colleague, that he would not write an arrest warrant on the case and that he
was prepared to lose his job over that position. Lundberg then went on vacation November 11,
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE DISTRICT ATTORNEY

2020. The day before Lundberg returned on vacation, November 20, Jack Friedman called and
told Lundberg that he, Friedman, had written the warrant.

For context, IIB Managing Attorney Darby Williams was interviewed and shared that
during a conversation with the homicide sergeant in the case, she learned Lundberg had made
potentially exculpatory statements in a second SFPD voluntary interview with Samayoa.
Williams asked the current IIB investigators to have Lundberg write a Memorandum of
Investigation (MOI) regarding this statement and to determine if Lundberg’s investigation was
complete. Lundberg confirmed he was asked to write that MOI but was told by Friedman to stop
writing the MOI.

As part of these recent revelations, Lundberg shared he possessed a copy of the

PowerPoint former ADA Cha prepared and shared with Gascon’s administration as part of her
recommendation against charging.

DAI Jack Friedman when interviewed, shared that on Friday, November 13, 2020, he was
called on his cell phone by then District Attorney Chesa Boudin, followed by a Zoom meeting
with Boudin on Saturday, November 14, 2020. Friedman admitted that this call, directly from an
elected DA, was unusual and had never happened before in his career. Friedman was not friends
with Chesa Boudin and had never been called directly by him before. Chesa Boudin asked
Friedman to write the arrest warrant on the Samayoa case. Friedman claims he then reviewed
the entire casefile, drafted the arrest warrant, and included all exculpatory evidence to prepare
the warrant within the five days that followed that meeting. Friedman claimed that he had no
knowledge that anyone in DAI thought the case was not provable. Friedman said he did not talk
to Lundberg or any other investigator in the case while preparing the arrest warrant. Friedman
also admitted ADA Conger authored major portions of the arrest warrant including the legal
analysis portion of the warrant and the portion including selected still frames from Samayoa’s
BWC as demonstrative evidence. Friedman then signed the arrest warrant on November 20,
2020, five days after Chesa Boudin called him and nine days before the statute of limitations
expired on the charges selected by ADA Conger. Less than one month later, December 12,
2020, Friedman was promoted to Lieutenant of IIB by Chesa Boudin. Of note, Friedman, denied
he told me about his plan to only write but not sign the warrant, and denied his prior statement
regarding his belief in a lack of probable cause for it.

FORMER DA INVESTIGATOR JEFF PAILET

Jeff Pailet, a former Lieutenant of IIB from the date of the OIS until he was terminated by
then District Attorney Chesa Boudin, was also interviewed while accompanied by his attorney.
Pailet corroborated Lundberg’s statement that ADA Cha concluded the Samayoa case was not
prosecutable and created a PowerPoint presentation to that effect. Cha’s conclusion that the case
was not prosecutable was based on the fact that it could not be proven that Samayoa was
unreasonable in believing O’Neil was armed. And there was no witness or evidence to
undermine Samayoa’s perception/statement of perception of the threat Samayoa believed O’Neil
(decedent) presented. Pailet recalled ADA Cha gave the Power Point slides to Sharon Woo and
Frank Carruba during George Gascon’s administration. Pailet remembered the presentation was
around October of 2018. Pailet said that Woo and Carruba agreed the case was not provable.
Pailet recalled he was also told by Managing Attorney of IIB at that time, Andrew Lah, that DA
Gascon said they were not moving forward and would let the next administration deal with the
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE DISTRICT ATTORNEY

case. Pailet recalled also that Gascon did not direct anyone to move forward with charging the
case, and there was no movement to charge the case, until ADA James Conger was assigned.

Pailet again corroborated Lundberg and remembered the conversation that occurred in the
office shortly before he was “let go”, around October 2020. Recently moved from the Brannan
Street office, IIB Unit members were all in cubicles at the Rhode Island office. Pailet’s cubicle
was next to James Conger’s. Also present were Dan Lundberg and Jack Friedman. The
Samayoa case came up in conversation. Pailet commented that it appeared Conger was looking
to file the case, and asked Conger how much time he was seeking for Samayoa. Conger
responded that he was not looking for any jail time. Pailet then asked Conger why he was
charging the case. Conger responded that there were lots of reasons including to change SFPD
shooting policy so SFPD can’t do this. Pailet thought this statement was off the wall and
responded “James, that’s not our job – that’s [for] SFPD or the Police Commission. Our job is to
determine if a crime occurred and if we can prove it.” Pailet recalled this statement was a
“conversation killer” and that Conger left shortly thereafter.

Pailet stated that on another occasion, Lundberg expressed concern to Pailet that Conger
had just met with Boudin. Lundberg told Pailet about Conger’s statement of “we need to find a
path to prosecute.” Pailet was troubled because “finding a path” was directional – stating in
essence: you are trying to make the evidence fit what you want, instead of following the
evidence, which is what they usually do. Pailet recalled he knew of no new or different evidence
after the investigation concluded, to change the evaluation of the case.

Finally, Pailet offered to the interviewer that to review a case of this volume, which also
includes transcripts from two separate Grand Jury investigations,
and be able to sign under penalty of perjury that all exculpatory evidence was included,
would take more than five days.

THE CURRENT POSTURE OF THE CASE

The investigator interviews were provided to the defense as potentially exculpatory

information. On January 27, 2023, the preliminary hearing was continued at the request of the
defense in large part because of this now shared information and reset for March 1, 2023.
Defense counsel also served us with a Motion for Pretrial Discovery; Request for Evidentiary
Hearing on Defense Motion to Dismiss Due to Prosecutorial Misconduct … and Selective and
Invidious Prosecution of the Defendant, set to be heard on the same date as the preliminary
hearing, March 1, 2023.

The defense has made a colorable claim of entitlement to the PowerPoint presentation in
question prepared under George Gascon’s administration. We are also gathering and evaluating
what other materials might have to be produced to comply with our Brady obligation in light of
all that we have recently learned. And while we understand that the current administration
followed up on and disclosed Brady information, the reality is all this should have been provided
to the defense years ago because the prosecution knew or should have known about all of the
above. At the very least, this information is relevant to the Murgia motion – which the Defense
filed.

To further complicate matters, the attorney handling the case, the IIB manager, is now a
witness to statements by former lead investigator Lundberg, and I, the elected District Attorney
CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE DISTRICT ATTORNEY

to whom the IIB manager directly reports, am now a witness to statements by the signatory of the
arrest warrant, Friedman. Lundberg’s statements conflict with Friedman’s, making it possible
that I and the IIB manager may be called by the defense during the Murgia motion.

The aunt of the named victim, Keita O’Neil, spoke with me and asked that the Attorney
General’s Office take over this case noting the conflict that exists.

REQUEST FOR REVIEW AND POSSIBLE ASSUMPTION

BY THE ATTORNEY GENERAL

The present administration of this office has reviewed the universe of facts of this case,
including the applicable California and United States Constitutional law. While handling this
case we have done our very best to view this case through the lens of the prior administration,
assuming they in good faith believed the case could be proved, in order to proceed forward with
this prosecution, despite the many evidentiary problems described above. But now the discovery
of the obvious irregularities surrounding the handling of this case, the questions around the
obtaining of an arrest warrant, and the lack of candor around this, have led us to believe the
matter was in fact not filed in good faith. It appears that the case was filed for political reasons
and not in the interests of justice. I cannot pursue this case out of political convenience. Given
the conflicts that have arisen, the evidentiary problems, and the complete lack of good faith
surrounding the filing of this matter, we cannot ethically proceed with this prosecution.
Therefore, it is our intention to dismiss the charges made in this case, unless the Attorney
General’s Office decides to step in and take over the case.

This notification provides the DOJ with an opportunity to take over this matter before it
is dismissed. Despite our assessment that we are unable to ethically proceed with this case we
invite the Attorney General’s Office, who is the foremost authority in this area, to review our
decision and decide whether to take over the prosecution. Our aim is to give the family and the
community the opportunity of an independent review and the ultimate assurances that despite our
internal conflicts and position, that the case can proceed as charged should you arrive at a
different conclusion. To give your office an opportunity to assume the prosecution, we will
defer any dismissal until March 1, 2023, the date set for preliminary hearing and the Murgia
motion. We are submitting this request to you now, as we recognize that the Attorney General’s
Office would have very little time to review or evaluate the case after a dismissal because the
statute of limitations only has nine days left before it runs– an insufficient amount of time for
almost anyone to review and make a decision on this matter.

A copy of the casefile will be provided to you upon request.

Sincerely,

Brooke Jenkins
District Attorney of San Francisco