By Eric Arnold | A collaboration with California Black Media
Two weeks before his murder trial in San Francisco opened, Kevin Epps was honored by the Northern California Society of Professional Journalists with their “Silver Heart” award. In a press release, the organization noted the 57 year-old Epps “brought fresh energy, multimedia storytelling and digital innovation to one of the Bay Area’s last Black-owned newspapers.”
Best known for the gritty 2001 documentary “Straight Outta Hunters Point,” in 2023 Epps took over as the Executive Editor of SF Bayview. The legacy publication serves San Francisco’s Bayview-Hunters Point neighborhood, one of the few remaining strongholds for the city’s shrinking African American community.
Before Epps’ arrival, SF Bayview had stubbornly clung to its print-based model and had been slow to expand its website in this age of digital storytelling. Epps, a Hunters Point native whose family once owned a gas station, changed all that, working with legendary San Francisco City College Journalism Department chair Juan Gonzales to infuse the publication with fresh young voices.
Epps did not have much time to celebrate his award.
‘Digital forensics’
In 2016, Epps was charged with murder in the death of Marcus Polk, a homeless man who entered Epps’ home. Epps insists he fired in self-defense. The case was initially dropped two days after Epps’ arrest by then-DA George Gascon due to “insufficient evidence.”
In 2019, the case was reopened after prosecutor Michael Swart commissioned a digital animation from Jason Fries of 3-D Forensic, a controversial creator of “digital forensics” whose methodology has been called into question and/or excluded in several previous trials – including the 2014 Laquan McDonald case, where police bodycam footage recorded McDonald, a Black teenager, being shot 16 times by a white Chicago police officer. Cross-examination pointed to several inconsistencies in Fries’ animation; the officer in question, Jason Van Dyke, was found guilty of murder.
In 2019, Epps’ supporters launched the #FreeKevinEpps movement, successfully petitioning the judge to grant him bail after it was initially denied. The case garnered broad coverage as questions circulated over the validity of the alleged new evidence and conduct within the DA’s office. In a September 2019 Facebook post, Epps claimed then-Assistant District Attorney Michael Swart yelled at him, “Don’t you fucking look at me” during a bail hearing. “I seriously thought I was going to be physically battered by Mr. Swart, and for a split second my life and my freedom flashed before my eyes,” recalled Epps.
Six years later, the case has finally come to trial, with current Assistant District Attorney Jonathan Schmidt now heading the prosecution’s case, and Epps being represented by criminal defense attorneys Mark Vermeulen and Darlene Comstedt. Why the case has taken so long to reach trial stage remains a puzzle, as does whether the case should have been reopened in the first place.
Castle doctrine
As NBC Bay Area reported in 2016, Polk, then 49, ”was a registered sex offender with a two-decade history of domestic violence and drug abuse.” Public records show that Polk’s sex offender program clinician warned parole officials shortly before the shooting that he “might pose a risk to public safety if he remained in the community, due to his substance abuse.”
Epps never denied being the shooter but claimed self-defense under California’s Castle Doctrine, which says an individual has the right to use force — including deadly force — to protect against an intruder. In the nine long years between the incident and the trial, Epps has never given a full explanation of what happened.
Opening arguments were heard on November 10. “To understand what happened, you have to know who was there,” Schmidt said. He explained that Epps lived at a Glen Park home with his wife, Maryam Jhan, their two children, and his wife’s sister, Star Gul and her two children. Polk, Gul’s estranged husband, was “a frequent visitor” to the residence.
Schmidt sought to play up Epps’ criminal history – referencing a 2001 felony for marijuana possession (which Epps claims was dropped due to his participation in a diversion program) – while downplaying Polk’s checkered past, a mash-up of violence, sexual assault, parole violations, as well as homelessness, restraining orders and chronic methamphetamine use. Both men “had their difficulties,” Schmidt said.
The prosecutor sketched out the circumstances that led to the shooting, noting that the night of October 23, 2016, Polk showed up at the house and got into an argument with Epps. The next day, October 24, Polk returned and got into a confrontation with maintenance workers after he used a neighbor’s trash bin to scoop up trash from Epps’ residence. The maintenance workers called the front office, Polk reentered the house over Epps’ objections, and Epps shot Polk. Jhan heard the shots, saw Polk lying on the floor, and called 911. Within four minutes, police officers arrived. Epps reportedly said, “I did it,” and told officers where they could find the gun. Polk had trace amounts of methamphetamine and marijuana in his system, Schmidt conceded, before raising the question, “Was the shooting legally justified?”
Comstedt wasted no time in attacking Schmidt’s narrative. Polk, she said, had his parole revoked for methamphetamine use and “would sometimes show up in the middle of the night. These visits were not always pleasant family visits.”
The day of the shooting, “Polk banged on the door demanding to be let in.” He didn’t just confront the maintenance workers, she said, he threatened them. Their filing of a report could have led to eviction for Epps and his housemates. After being told to leave several times, she said, Polk refused and entered the home. He then “threatens to ‘air out’ Epps and advances on him.” At that moment, “Kevin Epps feared for his life.”
While admitting Epps “was not in lawful possession of a handgun,” she insisted, “he had acted in self-defense.” She also noted that Epps remained in San Francisco and made no attempt to flee in the three years in-between the initial arrest and the reopening of the case.
Friends and supporters stand with Epps outside the court house in San Francisco where his trial is underway. (Credit: Eric Arnold)
Prosecution falters
The prosecution proceeded to call various witnesses over the next few days, including the responding police officers who detained Epps and the CSI technician who examined the crime scene and the gun. Much of this testimony was procedural in nature. Since there were no witnesses to the actual shooting, the 911 call played for the jury (twice) rested on its shock value. The prosecution made a theatrical show of presenting the actual gun used to the jury, yet that performative act offered little insight into the question of whether the shooting was justified or not.
As the trial continued, observers noted the prosecution’s case seemed to falter, as the defense gained momentum. Schmidt attempted to humanize Polk by noting the contents of his backpack included a Rubik’s cube and a Bible, repeating several times that no weapons were found on him or in his possessions. But the defense revealed the backpack also contained a signed notice of a parole violation. During the testimony of forensic toxicologist Dr. Derek Rodda, Schmidt again attempted to equate marijuana and methamphetamine as having similar effects, before acknowledging that meth was more “drastic.”
GPS records from Polk’s ankle monitor showed that he sometimes visited the house several times a day, for a few minutes or very late at night. The defense elicited that the GPS tracking was only accurate within 50 meters, meaning that Polk’s exact whereabouts were imprecise.
Anthony Walker, the maintenance worker Polk had argued with, initially testified that Polk was “calm” and presented “no real threat.” On cross-examination, Comstedt read transcripts from a 2016 police interview in which Walker told Jhan, “He threatened me, so I have to do a report.”
Potential fireworks
As the second week of the trial opened, the intensity escalated. The prosecution’s attempt to introduce a video recording made by Gul showing Polk at the home the night before his death led to a defense motion to dismiss the charges, based on late discovery. This led to the jury being sent home for two days and numerous closed sessions between the judge and the lawyers. Eventually the video was ruled inadmissible.
The trial, which has an end date of December 18, is set to resume Thursday November 20, with Gul and her daughter, Melina Polk taking the stand. Gul could be an explosive witness; In a session closed to the jury, her mental state and inconsistent statements became points of concern for both prosecutor and defense.
Digital animator Fries and Chief Medical Examiner Dr. Christopher Liverman are expected to be among the remaining witnesses. This sets up more potential fireworks: in pre-trial hearings, Liverman testified that the exact trajectory of the fatal bullet could not be determined – effectively nullifying the 3-D Forensic animation commissioned by the DA’s office, which reportedly showed Polk getting shot in the back from a distance of 15 feet. Yet Crime Scene Investigator Patrice Heath testified the distance was approximately two to three feet – a distance seemingly consistent with the self-defense theory.
Broader implications
What’s at stake here is not only potential prosecutorial misconduct for commissioning and directing an unscientific animation video with inaccurate measurements, but whether digital forensics – typically used in officer-involved shootings – will become more common in criminal trials.
That’s not the only outstanding question. Whether Epps will take the stand on his own behalf remains open, as does whether the defense will be allowed to present a radical theory by neuropsychologist Dr. Laeeq Evered called “Peak Fear Response” – also known as “Fight, Flight, Freeze and Fawn.” Peak Fear Response revolves around neurobiological responses to extreme stress that can suspend rationality as humans revert to what Vermeulen called primal “survival circuits.” But it’s an untested legal theory which drew skepticism from Schmidt and the judge. There’s also an issue of whether more of Polk’s drug use will be admitted, through subpoenaed parole records.
The implications of this trial go beyond San Francisco and Kevin Epps. Unequal justice and racial discrimination have long been part and parcel of criminal trials for African Americans. This trial, however, does offer a window into the workings of a DA’s office in a major city which has had a tenuous relationship with the Black community, and a longstanding history of failing to prosecute police misconduct. After progressive reformer Chesa Boudin was recalled in 2022, new DA Brooke Jenkins dropped charges against an SFPD officer who shot and killed an unarmed Black man, calling the original charges “politically motivated.”
Yet some in the activist circles Epps runs in also question whether there’s a political agenda at play in the reopening of his case after so many years, given his high profile within Black media circles and the ongoing gentrification impacting Bayview-Hunters Point. Epps’ supporters are starting to mobilize, planning a press conference on the courtroom steps and gathering statements from social justice and civil rights organizations. Meanwhile, the decision to charge Epps without a significant amount of new evidence remains the central question in the proceedings.
