'What will it take for you to call this a homicide?'

This story was originally published by the Appeal.

On Aug. 8, 2012, Michael Daniels dialed 911 from a hotel room in Vallejo, California, to report that his girlfriend, Jessica Brastow, vomited and fell unconscious. By the time police arrived, Brastow, 37, was dead. Investigators noticed marks around her wrists and ankles, suggesting she had been tied up. Daniels, meanwhile, bled from fresh injuries on his forearms, and there was a sock soaked with saliva and vomit inside a trash can in the hotel room. Both Daniels and Brastow had been drinking heavily all day.

Vallejo police officer Mathew Mustard was convinced Daniels murdered Brastow, so he arrested him at the scene.

The next day, Dr. Susan Hogan, a forensic pathologist with the Solano County sheriff’s office, examined Brastow’s body. Mustard attended the autopsy. Hogan observed that although Brastow had injuries to her face and tongue, she didn’t have other important signs of strangulation or choking: the hyoid bone in her throat was intact and there wasn’t any petechial hemorrhaging in her eyes or swelling in her larynx. When Hogan told Mustard there was no physical evidence that the sock was used to choke Brastow, he asked her to change her determination. “What will it take for you to call this a homicide?” Hogan recalled Mustard asking her.

Hogan dictated her notes from the autopsy into a tape recorder. “Take that Mat Mustard, you little shit,” she said. Her recording ended with another comment aimed at the Vallejo detective: “Mat Mustard wants this to be a homicide, and there is no way I could call this at this point, and I’m not going to be pushed into it, so he can go kiss my ass.”

Hogan’s preliminary conclusion of Brastow’s manner of death was “undetermined.” But by then, the case had been assigned to Andrew Ganz, a prosecutor with the Solano County district attorney’s office. Ganz charged Daniels with murder. It was the prosecutor’s first murder case, but Ganz’s busy schedule kept him from attending the preliminary hearing on Oct. 19, 2012. Another prosecutor, Karen Jensen, filled in for him. But after reviewing the case, Jensen dismissed the charges at the preliminary hearing because the final autopsy results weren’t yet available and the manner of death remained “undetermined.”

Daniels was released from jail and subsequently moved back to his home in West Virginia. In November 2012, toxicology and DNA test results bolstered Hogan’s opinions.

In a Dec. 5, 2012, email to Jensen, Hogan wrote that Mustard’s attitude was “something she had never experienced, as he was exerting a lot of pressure on her to call Brastow’s death a homicide,” a California state bar judge later wrote of the exchange. She wanted to discuss the cause and manner of Brastow’s death with the rest of the prosecution team. But Jensen handed the case back to Ganz.

On Jan. 10, 2013, Hogan met with Mustard and another Vallejo detective, Lt. James O’Connell, and Ganz and Jensen and their supervisor, Deputy District Attorney Jeffrey Kauffman. Also present were Tenzin Dorji, the coroner detective assigned to the case, and Sgt. Mel Yarbor, Hogan’s supervisor.

Hogan explained why Brastow’s autopsy “scientifically” refuted Mustard’s sock-down-the-throat theory of murder, and she pointed out Brastow’s lack of injuries were inconsistent with strangulation or smothering. According to Hogan, Mustard and Ganz showed their displeasure by “glaring” at her during the meeting.

On April 10, 2013, Hogan signed Brastow’s final autopsy report, identifying the cause of death as asphyxia. She did, however, specifically avoid mentioning Mustard’s theory of murder or the Jan. 10 meeting. Hogan later told sheriff’s department investigators that she excluded information that could be useful to Daniels because the case had “gotten so crazy and no one was listening to me, I didn’t want to give anyone any more ammunition” to use against her.

Hogan felt under attack for her work. By June 2013, a sheriff’s investigator interviewed Ganz about Hogan’s work in the Daniels case. Ganz criticized her and said her autopsy findings on Brastow made his murder case “difficult.”

In September 2013—more than a year after Brastow’s death—her mother emailed Ganz, writing that the “case is probably too cold to go forward.” Ganz forwarded the email to Mustard, adding he was “completely on the fence between giving it a shot and just letting it go.”

Mustard replied: “I think that we have done cases that have more obstacles than this one, and we need to throw it against the wall and see what sticks.”

On Sept. 23, 2013, Ganz charged Daniels with murder for a second time, knowing the case hinged on Hogan’s autopsy findings. Daniels was arrested and brought back from West Virginia to face trial.

“I didn’t think it was murder,” Meenha Lee, Daniels’s public defender, told The Appeal. “It could be accidental homicide, but I didn’t think it was intentional.” Lee relied on the district attorney’s office to fulfill its constitutional obligation to disclose what evidence it had about the Daniels case, particularly any information that could exonerate her client.

“Discovery is always an issue because you always feel like you’re missing something, but you don’t know what you don’t have,” Lee said. “You have a trust system, even though you’re opponents.”

During the second preliminary hearing in November 2013, Ganz—with Mustard at his side— questioned Hogan regarding Brastow’s manner of death. Under oath, Hogan testified that the cause of death was “undetermined,” but she added it was “most likely” a homicide.

Lee pressed Hogan on her theory of the case and, on the stand, Hogan omitted any mention of the prosecution team’s discussions centered on the exculpatory autopsy findings that refuted Mustard’s murder theories. During the same hearing, Ganz also failed to mention the prosecution team’s meeting and discussions.

The sheriff’s office asked Hogan resign in October 2013, and she was formally terminated that November.

On Jan. 7, 2014, Hogan emailed Jensen to inform her that Hogan had been fired, adding that her termination was in part because of the complaints Ganz made to an investigator about her work. As a result, Ganz’s supervisor ordered all prosecutors in the Solano DA’s office to add Hogan to the “impeachment list” which required, among other things, that prosecutors disclose the fact that a person made false statements to the defense, along with any other exculpatory evidence, as soon as possible.

In February 2014, Lee awaited Judge Daniel Healy’s decision about what records should be released in the Daniels case, particularly Hogan’s personnel file. Healy ordered the release of the personnel file to Lee. The records revealed the meeting of the prosecution team early in the case where Ganz and others appeared to pressure Hogan to rule Barstow’s death a homicide. Lee said she was “floored” and felt that authorities were “secretly prosecuting” Daniels without sufficient evidence.

“There was an agenda against him,” Lee said. “That’s how I felt when I found out about this meeting. I felt it was a secret meeting. I felt that meeting should have been turned over to me, that there was pressure on Dr. Hogan to change her opinion.”

Unbeknownst to Lee, Ganz concealed evidence from her, including his involvement in the meeting to pressure Hogan to rule Brastow’s death a homicide, and later by questioning Hogan’s abilities as a medical examiner.

As the case moved to trial, Hogan’s credibility as a witness became a central issue. Judge Healy determined the prosecution violated Brady disclosure rules by withholding evidence from the defense, including Hogan’s audio recording of her autopsy findings, 150 pages of notes and photographs from the crime scene, and the Jan. 10, 2013, meeting attended by Ganz, Mustard, Hogan, and other members of the prosecution team.

In a 37-page ruling, Healy wrote that three deputy district attorneys and two police officers “all advocating for a position contrary to Dr. Hogan’s, in and of itself suggests an effort to intimidate,” and the five law enforcement officials without “any forensic medical training but nonetheless are trying to convince a doctor to change her mind about forensic evidence, is in and of itself both troubling and absurd.”

Even with the judge’s ruling, Lee knew she couldn’t trust that Daniels’s case would be thrown out.

“After the initial work to reveal this kind of concealing or misconduct, you don’t just bank on that this case will go away,” she said. “You would think in a fair world that it’s over, but it’s not. I feel Mr. Daniels’ case exemplifies how, for a defense attorney, you gotta fight.”

Lee thought the case against Daniels should have never made it to trial. But at Daniels’s April 2014 trial, she used the judge’s adverse findings against Hogan, Solano County prosecutors and Vallejo police to impeach their credibility. On April 17, 2014, a Solano County jury acquitted Daniels of all charges. Some jury members hugged Lee after the verdict.

By 2016, Ganz took a new job, as a prosecutor with the San Francisco district attorney’s office, even though Judge Healy wrote that he exhibited a “prosecutorial attitude either incapable of or disinterested in maintaining the minimum ethical standards that all prosecutors are sworn to uphold.”

Nevertheless, Ganz was assigned another high-profile homicide case: the Sept. 3, 2015, murder of James Thomas outside a San Francisco bar after a drunken argument with Carlos Argueta. Argueta said he stabbed Thomas to death in self defense.

In April 2018, while Ganz was prosecuting the case against Argueta, the state bar filed disciplinary charges against him related to the Daniels case, alleging that he suppressed evidence and misrepresented it to the defense.

It is extraordinarily rare for state bars to act on misconduct complaints about prosecutors. A 2003 report from the Center for Public Integrity identified 2,012 cases across the U.S since 1970 in which a judge reversed a conviction, reduced a sentence, or dismissed charges at least in part because of prosecutorial misconduct. Only 44 of those cases resulted in disciplinary review of the prosecutor. In Louisiana, a locus of prosecutorial misconduct, the state’s Attorney Disciplinary Board has only punished one prosecutor for failing to disclose evidence.

Shortly after the state bar complaint was filed, then-San Francisco Public Defender Jeff Adachi filed a motion with the court to dismiss the case against Argueta. Adachi alleged that Ganz engaged in misconduct reminiscent of the Daniels case: omitting critical parts of the medical examiner’s opinion and changing key eyewitness testimony before the grand jury. A judge ruled against Adachi’s motion.

On Oct. 29, 2018, the California bar recommended that Ganz be given a one-year suspension that would be stayed for all but the first 90 days and that he should also be placed on probation for two years.

On Nov. 1, 2018, the ACLU of Northern California asked the San Francisco and Solano County district attorneys to review all of Ganz’s cases for possible misconduct. The Solano DA’s office told The Appeal that it eventually carried out a review but that the contents are confidential. The San Francisco DA’s office declined to say if it reviewed Ganz’s cases.

On July 3, a state bar judge found Ganz culpable of four counts of misconduct.

The decision came as Ganz prosecuted the Argueta case.

Ganz now works for Rains Lucia Stern St. Phalle & Silver, a law firm that defends police officers accused of wrongdoing. Among the firm’s clients are the Vallejo Police Officers’ Association (VPOA). During the Daniels trial, Mustard served as VPOA president.

Ganz declined to be interviewed for this article. In an April 2018 response to the California bar’s charges against him, he denied that he suppressed evidence in the Daniels case.

Mustard did not respond to multiple requests from The Appeal for comment. He remains a police sergeant and detective with the city of Vallejo.

Mustard is expected to be called as a witness later this year in a kidnapping and rape case he once wrongly dismissed as a lie. The perpetrator—a Harvard Law-educated former U.S. Marine named Matthew Muller—said in jailhouse interviews with KTVU reporter Henry Lee that Vallejo police credibility will be an issue at trial.

On March 23, 2015, Muller broke into the home of Aaron Quinn and Denise Huskins and kidnapped Huskins, later raping her and demanding a ransom. When Quinn contacted the Vallejo police for help and told his story, Mustard decided Quinn may have killed Huskins and invented the kidnapping as a cover. Mustard questioned Quinn for 18 hours after Huskins’s abduction.

Two days later, Huskins reappeared in Huntington Beach, after apparently being held against her will by Muller. Vallejo police publicly dismissed the ordeal as an elaborate hoax, comparing it to the movie “Gone Girl.”

It would take another home invasion with Muller as the primary suspect, and an FBI investigation, to prove that Mustard was gravely wrong. In March 2017, Muller was sentenced to 40 years in prison for a single kidnapping charge. While Vallejo police never offered a public apology, the city paid Huskins and Quinn $2.5 million.

Despite the outcome of the Brastow and Quinn-Huskins investigations, the Vallejo Police Department named Mustard its officer of the year for 2015.

Lee, the public defender, said the problem with the criminal legal system isn’t single bad actors, but how the system is designed to reward them.

“The win-at-all-costs attitude is condoned and happens more than it should,” she said. “It’s a very imperfect system. The justice system is unfairly skewed toward the prosecutor, so it’s easier to get away with it.”