Man Acquitted in Gay Roommate's Death

People who knew a gay San Francisco man who was stabbed, beaten, and strangled to death in 2011 expressed shock after a jury last week acquitted the man accused of murdering him.

Waheed Kesmatyar, 28, had testified that he killed Jack Baker, 67, his roommate, in self-defense after Baker raped him, then stabbed him to try to prevent him from leaving their Nob Hill apartment.

Jurors who spoke with the Bay Area Reporter said they were left to believe Kesmatyar's claims after the prosecution didn't disprove them.

Kesmatyar put his head down and appeared to sigh deeply after the jury's decision was announced Wednesday, April 1. At least one member of his defense team cried.

Vince Gonzales, 55, Baker's cousin, said in a phone interview Wednesday that he was "shocked" by the acquittal.

Baker's decomposing, nearly decapitated body was found February 11, 2011 in his apartment at 1035 Bush Street, about a week after he'd died. A paring knife had been broken off in his head and there was an electrical cord tied around his neck. He'd been stabbed dozens of times.

Part of the paring knife, along with a larger knife that was also broken, were found with his body.

"The brutality of the assault is shocking, and for the jury to not find some degree of culpability is just mind boggling," Gonzales said. "I'm sure everybody in the family, our family, will suffer just more exacerbation of the pain that Kesmatyar has inflicted, and no verdict, guilty or not guilty, changes the great loss that the family has suffered."

During the trial, which lasted about a month, jurors heard evidence that Baker had invited Kesmatyar, who's straight, to watch pornography with him, and that Baker had previously forced two teenage boys to perform oral sex on him, among other disturbing sexual behavior.

In a phone interview, juror John Atchinson, 48, who's gay, said the verdict didn't stem from any "idea that Mr. Baker might have deserved what he got. ... It really all went down to the evidence."

The jury was instructed that it had to find Kesmatyar guilty beyond a reasonable doubt, and Atchinson said, "I really thought that I had no choice" but to acquit Kesmatyar, despite his original emotions about the case.

Atchinson said that for him, Baker's alleged sexual behavior "opened up possibilities of the rape occurring," and he also believed the testimony of Father River Sims, the street preacher who said he saw Baker forcing boys to give him head. Assistant District Attorney Diana Garcia had strongly disputed Sims' credibility.

Gonzales, who lives in Weatherford, Texas, and didn't attend the trial but learned of many of the details through the B.A.R. 's coverage, said, "I just can't help but be offended by the type of presentation that the public defender's office" gave.

"I just can't help but think that they presented the gay panic defense, contrary to your state law, and that's homophobic and just unacceptable," Gonzales, who's straight, said. He called the verdict "an affront" to the LGBTQ community.

But referring to Deputy Public Defender Hadi Razzaq, Atchinson said, "I didn't feel like Mr. Razzaq was having any kind of gay panic defense." He said Garcia hadn't provided any "plausible theory" for the killing, and "I had no choice but to believe [Kesmatyar] was raped."

Garcia did say during the trial that Kesmatyar had killed Baker after Baker confronted him about not paying the rent, which the defendant denied.

"I think she just made that up out of thin air," Atchinson said.

Dr. George Woods, a physician who specializes in neuropsychiatry, testified that Kesmatyar had post-traumatic stress disorder after being orphaned in war-torn Afghanistan and being raped as a child. Atchinson took from Woods' testimony that Kesmatyar's PTSD had been "triggered," leading him to kill Baker.

Atchinson said Garcia didn't cross-examine Woods, which "in deliberations we all found kind of odd," and which "made me accept everything he said as fact."

In fact, Garcia did cross-examine Woods.

Outside the courtroom Wednesday, Andrea Sparrock, 29, who served as the jury forewoman, said she believed Kesmatyar's claims of rape and self-defense.

"For me, the issue of rape in general is a serious issue," Sparrock said. "For a man to say he was raped by another man is very hard to say. It's hard for a woman to say."

She said Garcia, "never showed that it did not happen," and it was the prosecution's "burden to prove [the case] beyond a reasonable doubt."

Sparrock said it was "an unfortunate situation for the victim's family as well as Mr. Kesmatyar. It was tough." However, she said, "Our instructions were clear," that jurors had to base their decision on the evidence presented.

Juror Kim Nguyen, who declined to give her age, made similar remarks and said Judge Kay Tsenin's instructions "made clear" that the jurors' decision had to be "based on the law."

Asked whether she believed the rape claim, Nguyen said, "Yes and no. ... some of it." She didn't elaborate.

Mohammad Kesmatyar, the defendant's father, told a reporter, "Thanks to God to everybody going through this case."

Waheed Kesmatyar had been charged with first-degree murder, but jurors also could have convicted him of second-degree murder or voluntary manslaughter. They found him not guilty of all three.

Amy Filippini, 59, of Oxnard, who was Baker's friend for more than 20 years, said the verdict "surprised and disgusted" her.

"I think my friend was murdered, and I believe that because he was gay, that he was an older man that hung out with younger guys, they assume he was up to no good, but that really wasn't the case," Filippini said.

She said Baker was "a very fun, loyal, sweet person" who "had friends of all ages," but the defense team "made him out to be a predator."

Alex Bastian, a spokesman for the district attorney's office, declined to comment on the verdict.

Police homicide Inspector Daniel Cunningham, who investigated the case and was present during the trial, said he, too, was "shocked" by the verdict.

"I thought the facts of the case, the actual facts, not these other things thrown in the air," were "overwhelming," Cunningham said.

When a reporter visited the jail where Kesmatyar was still being held last Wednesday afternoon, a sheriff's department staffer said Kesmatyar declined to be interviewed without first speaking to Razzaq.

Kesmatyar, who had been in custody since his February 2011 arrest, was released last Thursday.