SAN FRANCISCO - The man accused of beating a former San Francisco fire commissioner with a metal rod will be released because the alleged victim failed to show up to testify, a judge ruled.
Garret Doty, 24, an unhoused person, still faces charges of assault with a deadly weapon and others, District Attorney Brooke Jenkins said, but he cannot be held in jail any longer.
Surveillance video shows Doty striking Don Carmignani in San Francisco earlier this month.
Authorities wanted Carmignani's testimony at the preliminary hearing on Thursday for Doty, but Carmignani's attorney claimed his client was unable to appear as he is still recovering from surgery for a fractured skull and broken jaw.
"His testimony is necessary for us to prove these charges," Jenkins said in a statement.
The apparent beating of Carmignani sent shockwaves through San Francisco as the city grapples with the perception that crime is out of control.
However, Doty has claimed he acted in self-defense. His public defender alleges that Carmignani has used bear spray on eight occasions to douse people living on the streets.
"My client, in the video that was released yesterday, what does he do when Mr. Carmignani leaves him?" asked public defender Kleigh Hathaway. "He skitters away with his hat, I mean his over his head. Huh, why does he do that? Because he knows Mr. Carmignani has a pattern spraying and assaulting homeless people."
Carmignani's attorney retorted.
"My client has not been provided any details whatsoever about these alleged prior incidents, but he denies any involvement. Regardless, the previously released videos of the incident speak for themselves," said lawyer Nicholas Salvatore Colla. "My client was repeatedly beaten with a metal rod while in the act of retreating a distance spanning nearly two city blocks from the initial point of contact with the defendant."
For the record, Carmignani's attorney also said his client denies any involvement in using bear spray on homeless people.
The preliminary hearing has been rescheduled for May 23. That's when a judge determines if there's enough evidence to warrant proceeding with a trial of Doty.
Doty must stay at least 100 yards away from Carmignani, avoid the block of Magnolia Street where the altercation took place, and have weekly phone check-ins, including with San Francisco sheriff's deputies.