Justice for Kevin Epps, San Francisco’s Native Son

by Julian Davis

Kevin Epps is a father, legendary filmmaker, journalist and community leader. His award-winning documentary “Straight Outta Hunter’s Point” is an unflinching portrait of systemic neglect and structural racism in one of San Francisco’s most marginalized neighborhoods, depicting how residents have navigated poverty, policing and urban redevelopment. For the last two years, he has been the Executive Editor of the San Francisco Bay View newspaper, receiving this year’s Silver Heart Award from the Society of Professional Journalists for his mentorship of young writers and artists and leadership sustaining the paper. 

He is also on trial for the 2016 killing of Marcus Polk, a registered sex-offender and methamphetamine-rattled intruder in his home whom he shot in self-defense. Nine years ago, the San Francisco District Attorney’s office agreed with that assessment and withheld charges against Epps citing insufficient evidence. The real story of why he is now, nine years later, facing a murder trial that started in San Francisco Superior Court on Monday has nothing to do with the impartial pursuit of justice and everything to do with the background of structural injustice that defines prosecutions like this one. 

Charges against Epps weren’t originally filed until 2019, three years after Polk’s ultimately fatal break-in to Epps’s home. The “new evidence” prosecutors claimed to have was a set of 3D animations that they in fact procured from a forensics contractor named Jason Fries. Fries’s company, 3D Forensic, had been recently discredited by prosecutors in Chicago over its animations depicting Laquan McDonald, a Black man shot and killed by a Chicago police officer in 2014. Among other inaccuracies, the animations showed McDonald larger than he was in real life, wearing all-black clothing instead of his jeans, being shot only five times when there was no dispute that he had been shot 16 times, and moving implausibly quickly towards the officer (who was shown without the bulletproof vest he was actually wearing). 

The similarly produced animations that San Francisco prosecutors nevertheless ordered from 3D Forensic likewise present various fictional scenarios, including one in which Polk is turning away from Epps during the confrontation in this home. Just as Chicago prosecutors pressed against Jason Fries in cross examination, these animations are “not real.” Moreover, despite the fact that the company’s animations have been found inadmissible on numerous occasions in other jurisdictions, his website fraudulently boasts “20 Years of 100% Admissibility.” Indeed, Epps’s defense team has successfully argued against admitting the animations as evidence in his trial, though it is now too late to undo the damage they’ve done — there would be no trial today if prosecutors hadn’t previously presented them as “new evidence.”  

Imagine for a moment a similarly situated wealthy white homeowner — say, for instance, that Paul Pelosi had shot and killed the intruder who attacked him in his Pacific Heights home in 2022. Under California’s “Castle Doctrine,” any person who uses deadly force within their residence is presumed to have held a reasonable fear of imminent peril of death or great bodily injury when an intruder unlawfully and forcibly enters or attempts to enter that residence. Both Pelosi and Epps have a right under the law to defend themselves from danger inside their own home. Now, imagine that the San Francisco DA initially declined to bring charges against Mr. Pelosi citing insufficient evidence. The chances are nil that three years later that same DA would solicit 3D animations from a discredited “forensics expert” to procure “new evidence” in order to press charges. 

The fact is that Kevin Epps is Black, from Bayview Hunters Point, one of San Francisco’s “dark ghettos” to use the phrase of Harvard philosopher Tommie Shelby, a neighborhood plagued by housing segregation, economic disinvestment, environmental racism and violence. The prosecutors in the DA’s office overseeing his trial seem unable to accept that a Black man from Bayview acted in self-defense instead of malice. And yet, Epps’s prosecution is a miscarriage of justice that puts the DA’s office on trial as much as him even if none of the individual prosecutors there have racist intentions in their heart — the Assistant District Attorney on the case, Jonathan Schmidt, has his marching orders and no doubt believes he is faithfully applying race-neutral standards. 

In his book “Dark Ghettos,” Shelby argues convincingly that punitive state actions, such as this prosecution, lack legitimacy not necessarily because of racist intentions but when race-neutral policies employed against a background of structural injustice disproportionately impact unfairly disadvantaged racial groups. The law, it is said, is a spider web. It ensnares the powerless underclass while fat cats rip right through it. 

In her opening statement on Monday, Epps’s attorney explained that “he acted not out of anger, but out of necessity — to protect himself and his family” — words that echo Richard Wright’s in “Native Son”: “Violence is a personal necessity for the oppressed … It is not a strategy consciously devised. It is the deep, instinctive expression of a human being denied individuality.” Wright’s moral ingenuity, shared by Shelby, lies in the way he critiques the society that produces these conditions, instead of merely blaming the individuals who navigate them. 

Black Latina DA Brooke Jenkins, who makes a point of touting her social justice cred, should be able to recognize that Epps is not just facing charges initiated by her predecessors but a trial of his standing as a full citizen in a system that treats Black men as disposable symbols instead of individuals with equal dignity. 

It is in her discretion to drop this case, and justice would be better served if she did — its continuation means that it is not only Kevin Epps who stands on trial, but the city that raised him. Barring that, it is up to 12 jurors to restore legitimacy to a defective process that should never have produced these charges and to treat him with the dignity he deserves. 

Julian Davis is a California attorney based in San Francisco. He can be reached at julian@telegraphlaw.com.

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