| Just after midnight on November 25, 2008, 29-year-old Richard Barrett was shot to death during an apparent attempted robbery in the North Beach neighborhood of San Francisco, California.
Duane Reeves said he and Barrett had parted ways near the Fuse Bar, at the corner of Kearny Street and Broadway, when two Black men wearing black hoods approached Barrett, pushed him against a wall, and began clawing at his chest and neck area. Barrett broke free, and one of the men gave chase.
Moments later, Reeves said, he heard two shots, then saw the men run back around the corner, get into a car, and drive off. Reeves quickly flagged down a police officer and described the car as a dark-colored sedan with possible front-end damage. Later that night, the police pursued a car matching that description but lost sight of the vehicle.
When police found Barrett, he was wearing a diamond-encrusted pendant depicting Bamm-Bamm, of The Flintstones. Barrett was also in possession of a diamond ring, a Rolex watch, cash, and cocaine. This led the police to believe the assailants had tried but failed to take any property.
Surveillance video from the area captured two men walking towards the area where Barrett was attacked and later running from the area after the shooting.
Four days after the murder, a gray Nissan Maxima with front-end damage was towed from another part of the city. The car was registered to Julius Hughes, whom the FBI had been surveilling for months through the use of a phone wiretap. In one of the intercepted calls, a man named Gary Owens Jr. could be heard talking to 24-year-old Charles Heard about apparent crimes, including selling drugs and committing robberies. Heard said he had recently sold some jewelry for “15 racks,” which the FBI interpreted to mean $15,000.
Separately, the police had stopped and briefly detained Heard in the Maxima six days before Barrett’s death.
On December 10, 2008, Reeves looked at two sets of photo arrays. In the second group, Reeves appeared to select Heard as the man who initially approached Barrett and asked for a cigarette. Reeves said Heard “favored the shorter of the two suspects.” Although Reeves initialed and dated the back of Heard’s photo, he told the officers that he did not see the faces of the two men who assaulted Barrett and that Heard was “Kind of maybe like maybe the shorter guy that had the black hood on that was about [5 feet 10 inches,] but I don’t know if that was him or not.”
A woman named Francis Smith, who was visiting San Francisco from Texas, had been outside the bar smoking with friends and told police she saw two men approach Barrett, “clawing” and “pulling” at his chest, nearly ripping off his shirt. Smith said the assailant with the gun was about 5 feet 10 or 11 inches tall and had a gold tooth. At one point, Smith said, the shooter was next to her, and she got a good look at his face. In the early part of the investigation, police showed Smith three suspects, but she made no identification.
On January 8, 2009, Smith viewed two photo arrays at her home. She identified Heard from the second batch and said she was 95 percent sure or “pretty sure” he was the shooter. She said that she would have been more certain if Heard’s photo in the array had shown him with his mouth open and she could see his teeth.
Prior to Smith’s viewing of the photo arrays, police arrested Heard on December 18, 2008, and charged him with the robbery of Reginald Thomas outside a club in San Francisco. At the time of his arrest, Heard was wearing jeans with horseshoes stitched on the back pockets. The officer who arrested Heard seized the cellphone he was carrying, which was his girlfriend’s, and found photos of the items taken from Thomas. The officer later found the stolen items in a rental car used by Heard.
After the arrest in the Thomas case, Heard remained in jail. He was arrested on the Barrett case on July 16, 2009, and charged with murder, attempted robbery, being a felon in possession of a firearm, and participation in a criminal street gang.
Smith testified at a preliminary hearing on October 8-9, 2009. She identified Heard as the shooter. During the hearing, Heard was required to open his mouth and display his gold crowns, which Smith said gave her additional certainty.
At the hearing, several young Black men observing the proceedings stood up and showed their gold teeth when Smith was making her identification. The prosecution would later suggest this was an attempt at witness intimidation. Heard’s attorney, Eric Safire, said it was a failed attempt on his part to underscore the holes in Smith’s identification. “Word was put out by me to get people to come in that looked similar, young black kids with gold teeth to come into court to make it a little less suggestive,” Safire said. “It didn't work. But there was no intimidation of witnesses.”
Heard’s trial in San Francisco County Superior Court began in June 2010.
Smith testified at the trial and identified Heard as the man who shot Barrett. She viewed the surveillance video and said she recognized Heard at two separate points—before and after the shooting. During cross-examination, Smith testified that she had consumed three drinks prior to witnessing the shooting. In addition, she had initially told police that the shooter had only one gold tooth, not a mouthful or “grill.” Separately, she had told the police the shooter wore patterned pants, a plaid Kangol hat, and a graffiti shirt with a short-sleeve shirt on top. The men in the video wore hoodies, jeans, and no hats.
Reeves was unable to make an identification at trial, although he said the men in the video looked like the men he saw attack Barrett. He also said the Maxima looked like the getaway car.
Along with the surveillance video, the state also introduced cell phone records showing that the phone seized from Heard was in the vicinity of the Fuse Bar at the time Barrett was shot to death.
To bolster its case, the state presented evidence that Heard was part of a San Francisco gang with an extensive history of violence and a reputation for armed robbery. This included the conversation the FBI had picked up on the wiretap and expert testimony by Sergeant David Do on Heard’s association with the Central Divisadero Players (CDP) gang. Do testified that CDP was actively involved in a wide range of illegal activities, including drugs, robbery, and murder. Do said Heard was an active participant. Do also testified about the pre-trial incident involving the other young men with gold teeth. He said all the men were gang members or associates, and he described their tattoos and nicknames.
A police officer who had been present at the preliminary hearing testified that “seven men stood up in the courtroom in unison and appeared to stare down Ms. Smith. Some of them had their arms folded, and it looked like a pretty aggressive stance.”
Thomas testified that Heard robbed him of jewelry and other valuables. The state introduced as evidence the items seized from Heard and found in the rental car. In addition, prosecutors said that the surveillance video from the Barrett murder showed one of the apparent suspects wearing jeans with horseshoes stitched into the back pockets, just like the jeans worn by Heard at the time of the robbery arrest.
Heard presented testimony from two other witnesses who were with Smith at the time of the shooting. Mike Rodrigues testified that he was unable to make an identification from the photo arrays. David Stribble testified that the shooter was “absolutely not” Heard.
To support a theory of mistaken identity, Safire moved to introduce photos of Dennis Anderson and Gregory Walker, two other gang members, so that the jury could evaluate whether they were the men seen in the surveillance video. The motion noted that the police had received a tip that Anderson, who had an extensive criminal record, was the shooter. It also said that Anderson looked like one of the men in the video.
Judge Wallace Douglass denied the motion. He said there was insufficient evidence of Anderson’s involvement; Stribble and Smith had each rejected Anderson as the shooter, and to introduce the photos would only confuse the jury.
Dr. Geoffrey Loftus, a psychologist and expert on memory, testified about the unreliability of eyewitness testimony. Dr. Benham Bavarian, an expert in biometrics and the measurement of facial features, testified that significant differences existed between measurements of Heard’s face and those taken from the surveillance videos.
In rebuttal, Dr. Richard Vorder Bruegge, a photographic technologist for the FBI, testified that Bavarian’s methodology and conclusions were unreliable.
On July 1, 2010, the jury convicted Heard of first-degree murder and attempted robbery. It did not reach a verdict on the other charges, including the gang enhancements. Heard was sentenced to 25 years to life in prison. (The robbery charge in the Thomas case had been dismissed on March 3, 2009).
Heard appealed his conviction. He said Judge Douglass made several errors in his jury instructions and in his ruling to exclude the photos of Anderson and Walker. The appeal also said that Safire had been ineffective for staging the event at the preliminary hearing that involved the other Black men with gold teeth.
A three-judge panel from California’s First District Court of Appeal affirmed Heard’s conviction on October 29, 2012.
On January 9, 2014, a federal grand jury in the U.S. District Court for the Northern District of California returned a 17-count indictment against Heard and nine other alleged CDP members, charging them with a racketeering conspiracy that included murder, attempted murder, robbery, narcotics trafficking, pimping, pimping of minors, and extortion. The overt acts alleged in the indictment referenced Barrett’s murder and the actions of Heard’s associates at the pre-trial hearing.
Heard and four other defendants went to trial on the federal charges in February 2018. Smith testified about the Barrett murder. During cross-examination, Smith acknowledged telling the police that the shooter might have a single gold tooth rather than a grill. She said, “[It] may not have been consistent with what I said,” but it “was consistent with what I saw.”
Also at the federal trial, Sergeant Damon Jackson of the San Francisco Police Department testified as the government’s gang expert. He was a member of the city’s gang task force, with particular knowledge of CDP and other gangs operating in the Western Addition neighborhood. He testified that he “knew everything that was possible” about these gangs based on hundreds of daily interactions.
Jackson testified that he had known Heard based on personal interactions and seeing him in videos and photos. He said he also knew Anderson and Walker through similar means. During cross-examination, Heard’s attorney asked Jackson to look at the video surveillance from the Barrett murder. Jackson identified the men on the video as Anderson and Walker, not Heard.
On March 5, 2018, a federal jury convicted Heard and the other men of racketeering, conspiracy, and murder charges. He was later sentenced to four concurrent sentences of life in federal prison, to be served after the completion of his state sentence.
In November 2018, Heard filed a state petition for a writ of habeas corpus. He said that Jackson’s testimony at the federal trial was new evidence of innocence and that the state had failed to disclose this exculpatory evidence before the state trial.
At an evidentiary hearing, Jackson testified that he had viewed the video prior to the federal trial, when police were trying to solve the Barrett murder. He said he and other officers “huddled” around a monitor, and the collective opinion was that the two men in the video “could have been” Heard, Anderson, or Walker. He said he was able to make a positive identification at the federal trial “[f]or whatever reason, whether it was the resolution quality of the monitor, whether it was, I don’t know, the video, I can’t explain it.”
Dr. Kathy Pezdek, a cognitive scientist at Claremont Graduate University, testified as an expert on memory and eyewitness identification. She said that memory doesn’t work like a camera, and several “psychological factors” might have influenced the accuracy of Smith’s identification. These included the briefness of the interaction, the presence of a weapon, the stress of the situation, and the delay in making an identification. She also said that race might have been a factor, as Smith was white and the assailants were Black. Witnesses, Pezdek said, more accurately identify “people of their own race or ethnicity than people of [a] different race or ethnicity. This has been demonstrated around the world and under all kinds of conditions.”
On March 23, 2020, a judge granted Heard’s habeas petition. The ruling said, in part: “I think the notion that multiple members of the [police department] questioned whether or not [Heard] was depicted in the video at a time prior to his arrest, prior to the preliminary hearing, in the presence of the prosecutor and this was not disclosed to the defense is very troubling to me and I think it’s plainly a Brady violation … Coming into this proceeding I was skeptical about this claim. That was in part because all I had was this very brief transcript from Sergeant Jackson in the federal trial. But once I heard him and heard his extensive history in the Western Addition as a patrol officer, as a detective, as a member of the Gang Task Force and his daily contact with Mr. Heard, Mr. Anderson, Mr. Walker, and the other people who live in that neighborhood, I found his identification of those two men very, very convincing and credible. And I can only imagine that a panel of lay people empaneled on a jury would have as well.”
The state dismissed the murder and attempted robbery charges that day. Heard returned to federal prison, where he remains.
After his dismissal, in April 2020, Heard moved to receive a finding of factual innocence, which is a necessary step to receive state compensation. A judge in San Francisco County Superior Court denied his request, and Heard appealed.
On September 28, 2022, a three-judge panel in the First District Court of Appeal reversed the lower court and ordered the judge to grant Heard’s petition. The ruling was written by Justice Mark Simons, who had written the ruling in 2012 that affirmed Heard’s conviction.
Simons now said, “Sergeant Jackson’s powerful testimony exculpating Appellant is sufficient to overcome the testimony of [Smith] and any evidence corroborating it.”
The ruling also noted problems with the state’s assertion at trial that the surveillance video showed one of the men on the video wearing jeans with horseshoe designs on the pockets. “This court has reviewed the video that appears to be referenced in the testimony—labeled ‘Pacific Ave’ and showing the presumed assailants from behind—and this court was unable to make out any horseshoe stitching on any back pockets,” the ruling said.
On December 14, 2023, the California Victim Compensation Board recommended paying Heard $230,000 in state compensation.
Separately, Heard filed a federal civil-rights lawsuit against the City and County of San Francisco. The lawsuit was settled for $900,000 on April 16, 2024.
– Ken Otterbourg
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