SF DA Connives to Keep
© Jack Cashill
In reading the parole hearing transcript for Steven Nary, I sensed the depth of the injustice about to unfold when San Francisco Deputy District Attorney, Nancy Tung, described Nary’s “victim,” 53 year-old Juan Pifarre.
In the way of background, Nary, an 18 year-old U.S. Navy airman at the time of the incident, has spent nearly 14 years in prison for killing Pifarre, his would-be rapist.
Pifarre, Tung testified under oath, “was an Argentinean immigrant . . . a senior financial analyst for the city of San Jose and a publisher of Horizantes, a Spanish language news periodical. He was an advocate in the San Francisco community for the Latino community . . . an advocate for low income and impoverished people and also for immigrants, populations that don’t often have a voice . . . and yes, he was gay.”
If the San Francisco DA’s office were interested in pursuing justice, and not in pacifying the city’s gay and Latino communities, Tung would have told the truth about Pifarre.
Yes, Pifarre was an immigrant, an illegal one, who got a green card through a sham marriage. Yes, he worked for the city of San Jose, but it was something of a no-show job as he was also working full time in San Francisco 50 miles away.
Yes, Pifarre was gay, but he was an angry coke-head and gay predator, who prowled co-ed dance clubs looking for vulnerable prey.
Tung also failed to mention Pifarre’s serious priors for unwanted sexual advances. As she knew, his one time attorney and neighbor, Ralph Johansen, testified at Nary’s 1999 trial that he had once defended Pifarre on an assault charge.
Apparently, Pifarre had grabbed the crotch of a 19 year-old male and asked for oral sex. This led to a fight in which both were charged with battery.
Johansen had lived downstairs from Pifarre. Many a night he saw Pifarre come home with what appeared to be young military types.
Often he heard “lots of noise, lots of screaming,” and at least once he heard a full-blown fight that culminated in a fist going through a window. Tung mentioned none of this.
Although generally fair, the presiding commissioner Jack Garner has apparently lived in California too long. After Nary confessed that he had frequented prostitutes, Garner asked, “On the morality scale . . . what was so different about the situation with Juan that caused you to do what you did?”
Nary’s appointed attorney, Gertrude Akpenyi, should have jumped up and shouted, “Outside of San Francisco, there is still a qualitative difference between soliciting a female prostitute and being anally raped by a lying, coke-crazed fat man, even if he is an advocate for the poor.”
Akpenyi, however, had been caught off guard. Garner had told Nary at the beginning of the hearing, “We’re not here to retry your case,” and Akpenyi took him at his word.
As in most parole hearings, the attorney’s role was to discuss the prisoner’s record while incarcerated, and Nary’s had been “impeccable,” Akpenyi told the panel.
In his favor, Nary had some two-dozen letters of support, offers of jobs and places to live. His psychiatric report noted “low risk for violence in the free community” and was among the best anyone had seen.
Nary had converted to Catholicism years ago, helped facilitate spiritual programs and tutor other prisoners. He had all but completed his AA degree from Coastline College, had gotten five certificates from Microsoft, and had “laudatory” marks in program after program.
“He’s a model inmate,” said Akpenyi in conclusion. “He has proved that the rehabilitation system really does work.”
“I don’t know when you had time to sleep,” said Deputy Commissioner Diane Lushbough to Nary. “You’ve done an awful lot. I want to just acknowledge that.”
None of this interested Tung. She had studied the case in depth and driven the 200 miles from San Francisco to Avenal State prison explicitly to retry the defenseless Nary.
At the beginning of the hearing, in fact, Tung presented grisly crime scene photos that took everyone by surprise. “I’m wondering why the DA has submitted this,” Akpenyi asked the equally confused commissioners.
Tung conceded that Nary had been hopelessly drunk, that Pifarre had lured him to his apartment under false pretenses, and that a sleepy Nary had pleaded with Pifarre to stop trying to penetrate him from behind.
Said Nary, who was almost assuredly slipped a date rape drug, “I was just laying there, couldn’t move, couldn’t speak.” When Nary finally got his wits about him, he hit the relentless Pifarre over the head with a glass mug by the bedside, and a fight ensued, the first in Nary’s life.
“The victim was helpless,” said Tung of a man his friends admitted at trial could be ferocious when high. Pifarre came after Nary with a towel rod. Nary wrested it away from him and jabbed him with it. When Nary slipped, Pifarre tried to gouge his eyes out, and Nary responded by choking him, likely to death.
Only In San Francisco, only with a gay and/or minority “victim,” only with a male defendant, could choking a rapist pass for “Murder in the Second Degree with Use of a Weapon.” The “weapon” was the towel rod.
In their questioning, both Tung and Garner seemed bewildered that anyone would find homosexual advances troubling.
Asked Tung, “Did this murder happen because of your temper?” In their questioning, she and Garner implied that Nary should have asked Pifarre to cry “uncle” once subdued and let him be.
“Did you have any level of curiosity about how things were going to evolve,” asked Garner of a confused, drunk, 18 year-old fighting for his life.
Tung chastised Nary for not calling 9-1-1 after he had fled Pifarre’s apartment in the early hours of the morning. That he had called the police of his own accord days later scored him no points.
Despite the absurd questions, Nary was as incapable of defending himself as Akpenyi but for a different reason: he was there to prove his very genuine remorse.
As a serious Christian, he had come to understand that his behavior leading up to that night was “sinful,” a word the commissioners had not likely heard very often.
“I felt no real purpose,” said Nary of that time in his life, “and life seemed to be a party where I could live from one experience to the next.”
He then offered a plea for contrition too comprehensive and profound for the commissioners to understand even if they had wanted to. “Every inch of my body, mind, and soul cries out for forgiveness,” said Nary.
In a state where interest group dynamics trump individual justice, Nary never had a chance.
“The panel feels that you haven’t fully explored the totality and magnitude of this commitment offense,” said Garner at hearing’s end.
“You’re unsuitable for parole because you remain a present and unreasonable risk of danger if released and require an additional five years of incarceration.”
And we wonder why the state is bankrupt?
Jack Cashill’s book, "What’s the Matter with California," is available in bookstores - or you can order your autographed copy online .
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