5 S.F. Officers’ Indictments Rejected

Rejecting an impassioned plea from Dist. Atty. Terence Hallinan, a judge on Friday dismissed grand jury indictments against five police supervisors accused of conspiring to cover up an off-duty brawl involving three rookie patrolmen.

In her ruling, Superior Court Judge Kay Tsenin took the district attorney and the Police Department to task for their handling of an affair that raised questions about whether the department was protecting its own. A grand jury charged that senior members of the department’s command staff had obstructed a criminal investigation into whether the young officers had picked a fight with two civilians over a bag of fajitas.

Last month, at the district attorney’s request, Tsenin dismissed charges of obstruction of justice against Police Chief Earl Sanders and Assistant Chief Alex Fagan.

But Hallinan had tried to keep alive the charges against other police supervisors in a case that has damaged the reputation of the 2,350-member department and preoccupied the city. He argued that the grand jury had heard enough evidence to support charges that the five had tried to block an investigation into possible police misconduct.

After two hours of arguments by prosecutors and defense lawyers, however, Tsenin rejected that position.

Tsenin criticized Hallinan for leaving “the grand jury adrift in a sea of innuendo,” and she repeatedly cited a lack of evidence showing any agreement among the defendants -- one of the elements essential to showing a conspiracy to obstruct justice.

“The court is troubled by the district attorney’s failure to abide by the ethics code to dismiss the case,” the judge said.

If Hallinan can’t do it, “the court must,” she said as the Hall of Justice courtroom erupted in applause from supporters of the police officers.

Fagan, who is acting chief while Sanders is on medical leave, attended the hearing in street clothes. Upon hearing the judge’s ruling, he bolted through the courtroom crowd to shake hands with each officer, whispering a few words of congratulations.

The defendants, all of whom accepted voluntary suspensions without pay during the case, expressed sober relief and outrage.

“Justice prevailed,” said Deputy Chief David Robinson. “I applaud the judge. I want to get back to work and continue my 28 years of service.”

Deputy Chief Gregory Suhr said of his actions, “They were not only not criminal, they were correct. I did not do anything wrong. This was a huge injustice. What was done to us was what was criminal.”

While dismissing the charges, however, the judge also said: “In no way does this court condone the way this matter was handled” by police.

The investigation into the Nov. 20 fight on Union Street was marked by “many irregularities ... preferential treatment ... and inappropriate actions” that reflect badly on the Police Department, she said.

During the two-hour argument on whether to dismiss the charges, defense attorneys hammered away at the indictment, saying that their clients had been charged for simply doing their jobs.

They reminded the judge that both Hallinan and a deputy had told grand jurors before the indictments were issued that they were not seeking conspiracy indictments against police supervisors.

“The district attorney should never have accepted the indictment” by the grand jury, said Bill Fazio, an attorney representing Capt. Gregory Corrales. Fazio is running against Hallinan in the November election.

Arthur Wachtel, attorney for Lt. Edmund J. Cota, said that the district attorney’s case “is a house of cards that will collapse.”

Carrying through with the indictments “was the worst kind of bad faith I can imagine,” Wachtel said.

For his part, Hallinan told the judge that evidence of an explicit agreement -- such as two people shaking hands and agreeing to commit a crime -- was not necessary and that the evidence suggested that a conspiracy had taken place.

He contended that there were several irregularities in the investigation of the case: There was no street-side identification of the three rookie officers after three strangers pointed them out as their assailants; the truck driven by one officer was not searched; the officers were taken to a nearby station without being given a sobriety test; and they were allowed to stay together and use their cell phones.

But Tsenin kept stopping Hallinan and his fellow prosecutors to ask the same question over and over: “What is the agreement?”

Sounding exasperated, Hallinan said at one point, “Your honor, don’t get hung up on this agreement thing.” The remark prompted hoots from the crowd.

After the hearing, a resigned Hallinan said that new laws need to be passed to cover the crimes he still maintains were committed by police officials.

“This is too important an issue for the people of San Francisco to be decided on a technicality,” Hallinan said.

“Unfortunately, in California there is no felony obstruction of justice charge without a conspiracy,” he said. “That cries out for a legislative solution.”

The three rookie police officers, including Fagan’s 22-year-old son, are scheduled to stand trial April 18 on charges of assault and battery.

No matter how the remaining criminal charges are resolved, the case has created a wide rift between the police and the district attorney’s office -- two departments that must work hand in hand on criminal cases.

But Hallinan insisted the two could cooperate.

“I’m sure at least five members” of the department will bear a grudge, he said. “But most people in the Police Department know we were just doing our job.”