Mayor London Breed swore in Suzy Loftus as interim district attorney on October 19, 2019. (Chris Victorio | Special to the S.F. Examiner)

Mayor London Breed placed interim District Attorney Suzy Loftus in a position to impact the fate of her imprisoned brother when she appointed Loftus as the top prosecutor of San Francisco.

As interim district attorney, Loftus has the power to decide whether the office should support or oppose overturning the manslaughter conviction against the mayor’s brother, Napoleon Brown.

A judge is scheduled to hear arguments next Friday over whether Brown should have his 44-year sentence reduced under new changes in state law that narrowed a theory of murder used in his case.

While former District Attorney George Gascon opposed the resentencing when Brown filed a petition to overturn his conviction in April, Loftus has the option to switch positions, according to an attorney for Brown.

But Loftus told the San Francisco Examiner on Tuesday that she would not do that.

“I didn’t agree with George Gascon about everything,” Loftus said. “I agree with him on this one.”

Loftus said the change to state law does not apply to Brown’s case.

“That’s been our position and that will continue to be our position,” Loftus said. “I plan on continuing to follow the law and the facts, and in this case it’s a clear cut situation.”

Her role in the case has the potential to become an issue in the election just days before voters head to the polls to decide whether Loftus will hold onto the seat for the coming four years.

Her appointment earlier this month already generated controversy from critics who said that Breed unfairly tipped the scales of the election when she appointed Loftus to succeed Gascon.

Even before the appointment, her opponents argued that San Francisco needed an independent district attorney. Her handling of the case will be sensitive since she runs the risk of getting criticized as being beholden to Breed.

“District attorneys are independent officeholders who make their own decisions,” said Jeff Cretan, a spokesperson for Breed. “The mayor has not discussed her brother’s resentencing case with Suzy Loftus or anyone in the District Attorney’s Office.”

Cretan and Alex Bastian, a spokesperson for the District Attorney’s Office, both said Loftus and the mayor had not been in contact about the resentencing.

Bastian also said there had been no communication between the District Attorney’s Office and the Mayor’s Office over the case.

“Dozens of people have sought relief under the new felony murder statute,” Bastian said. “Each case is reviewed on it’s own individual merits. Our position has been and continues to be that Mr. Brown is not entitled to relief under the new statute. Our position will not change.”

Breed has previously tried to help her brother get out of prison. The mayor made news last December after she and her family sent letters asking then-Gov. Jerry Brown to commute her brother’s sentence.

Jerry Brown left office without acting on her request. An attorney for Napoleon Brown said his client had not decided whether to ask Gov. Gavin Newsom for clemency.

Brown has served some 19 years of his sentence stemming from the death of his girlfriend, who was pushed out of a car into oncoming traffic on the Golden Gate Bridge while escaping a robbery.

Brown was convicted of murder, carjacking and robbery in 2005.

He was convicted of murder under the felony-murder rule, which allowed prosecutors to charge a person with murder for participating in certain crimes that resulted in death, even if the defendant was not the actual killer.

But after a judge set aside the murder conviction over a technicality, Brown pleaded no contest to involuntary manslaughter in 2011 and was sentenced to 42 years in prison.

His sentence was reportedly increased to 44 years after he was caught with heroin in prison.

Then in January, the change in state law under Senate Bill 1437 rolled back who could be charged with felony murder in California and allowed Brown to petition for resentencing.

His attorney, Marc Zilversmit, filed a motion in April to vacate the manslaughter conviction and resentence Brown under the legislation.

Zilversmit argues that the change in state law applies to homicide convictions like involuntary manslaughter — not just to murder — since the word “homicides” is used in the legislation.

Manslaughter is a type of homicide, but is different from murder.

And while Brown is convicted of manslaughter, Zilmersmit argues that he only pled to the charge because he was facing a new trial on murder.

He also argues that Brown should be resentenced because he was given time under old laws that required harsher punishments for certain enhancements that are now optional.

Zilversmit said a 25-year sentence would be more appropriate for a serious, armed robbery. He also acknowledged that Brown has struggled with addiction issues.

“It hasn’t all been good, but he’s done a lot of very positive programming in prison,” Zilversmit said.

Under Gascon, Assistant District Attorney David Merin disagreed with the arguments.

In a July filing, he argued that the amended statute only applied to murder and not manslaughter convictions based on its “plain language.”

Merin also argued that Brown was sentenced based only on his robbery and carjacking convictions, not on murder or manslaughter. As a result, he believes Brown should not be resentenced.

This story has been updated to include additional comments.

mbarba@sfexaminer.com

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