S.F. Chief Says D.A. Was Invited to Direct Probe

Times Staff Writers

The month before he was indicted on charges of obstruction of justice, Police Chief Earl Sanders says he invited Dist. Atty. Terence Hallinan to take over the investigation into a street brawl involving three off-duty officers if the city's top prosecutor feared there was a cover-up.

During a meeting at a hotel coffee shop Jan. 13, Sanders said, he asked Hallinan why his office had not decided whether to prosecute the three young patrolmen, even though the Police Department had submitted its investigative report three weeks earlier.

"Terence, we have all these allegations in the press about the investigation," Sanders recounted in a brief filed with state Atty. Gen. Bill Lockyer. "If you think or feel there is any merit to these speculations, have your people do the investigation. I've worked with D.A.'s investigators on police shootings and they're very competent."

The documents obtained by The Times for the first time relate the chief's view of a scandal that has embarrassed the 2,300-member force and captivated this city. According to the 17-page brief, the chief recalled Hallinan's saying that his investigators were "too busy" to take on the beating investigating. "They're doing grant work," the district attorney reportedly added.

Six weeks after that reported meeting, Sanders was indicted by a San Francisco County grand jury on charges of obstructing the investigation into the alleged beating. The panel brought obstruction of justice charges against six other police commanders and various assault and battery charges against the three patrolmen allegedly involved in the brawl.

The 17-page brief that the police chief sent to Lockyer's office foreshadows Sanders' probable defense on the allegations that he and the other commanders conspired to protect the officers, including the 23-year-old son of Assistant Chief Alex Fagan Sr.

Hallinan has assured city residents that once the grand jury transcripts are made public, the seriousness of the case will become clear. His spokesman on Wednesday could not confirm that the meetings with the police chief took place. "Because of the gravity of the situation, I don't think we're going to comment," said spokesman Mark MacNamara.

Legal experts say that the meetings between the district attorney and police chief potentially could make Hallinan a witness in the case. But some said that Hallinan is not so entangled that the entire district attorney's office must be disqualified from the prosecution.

Sanders' attorney Philip Ryan said that, at Hallinan's request, the chief met alone with the district attorney on two occasions in December and January, when furor over the case was building.

Hallinan, he predicted, could find himself in the position of confirming that the chief was going out of his way to cooperate with the very investigation Hallinan's office now accuses the chief of obstructing.

"I will tell you the first witness for the defense is Terence Hallinan," Ryan said. "He had conversations with the chief ... [which] establish that the only person [Sanders] was conspiring with is the D.A., to get his investigators to look into whatever they want to."

On Monday, the day before he was arraigned in Superior Court, Sanders announced that he was taking medical leave and handed over the department's reins to former Deputy Chief Heather Fong.

Six other indicted commanders have temporarily stepped down without pay.

Sanders has requested that Lockyer intervene in the case. Nathan Barankin, a spokesman for the attorney general, said Wednesday that his office hoped to respond to the request within 10 days, providing the grand jury transcripts are made available.

The transcripts were released to defense attorneys late Wednesday, but the judge in the case ruled that the documents will be kept under seal from the public for at least another 10 days.

The Sanders brief -- along with a box of documents, newscast videotapes and other materials -- was delivered Friday to Lockyer to support claims that Hallinan abused his discretion in directing the grand jury. The panel indicted Sanders and nine other department members Friday.

Ryan said that Sanders' concerns about the district attorney's investigation predated last week's indictments. More than a month ago, the chief had written a letter of concern to the attorney general's office, but was advised against submitting it by an official in Mayor Willie Brown's office.

The official, Gregg Lowder, the head of the Mayor's Office of Criminal Justice, declined to comment.

P.J. Johnston, Brown's press secretary, declined to comment on Ryan's assertions, but added that "the mayor said from the outset that he thought this case should have been investigated by the attorney general's office ... so there would be no question about impartiality."

The 65-year-old Sanders stressed in the documents submitted to Lockyer that his department conducted a by-the-book investigation into the Nov. 20 sidewalk fight between officers and two men over a bag of takeout food. It noted that the officers involved were taken into custody, their clothing and vehicle were confiscated, and officers from the department's internal affairs bureau interviewed them within hours of the incident.

Sanders also stated that Alex Fagan Sr., among those indicted, immediately recused himself from the department probe after learning of his son's involvement.

According to the chief's written account, the district attorney suggested a resolution at their Dec. 2 meeting: If the officers admitted involvement in the brawl, the matter "could be disposed of in much the same manner as his son's assault case had been handled."

In 2001, Brendan Hallinan, the district attorney's eldest son, was charged in connection with a drunken assault on a motorist. "Hallinan told me [his son] had received community service for his assault convictions and the suspect officers could expect similar treatment," Sanders said in the brief.

The police chief said he did not think it was appropriate to respond to Hallinan's comments "as the SFPD investigative report was due to be presented to him the following day."

Sanders' brief on the case also explained how he and other department executives felt the lieutenant in charge of investigating the brawl overstepped his authority.

Lt. Joe Dutto, the head of the Police Department's General Works detail, was immediately brought into the case and by noon of Nov. 20, the day of the fight, had assigned two investigators. By Dec. 3, Sanders said, the investigation was completed and presented to Hallinan for his decision on whether to prosecute.

However, he said, Hallinan requested further investigation, including a search for eyewitnesses to the predawn fight. After finding eyewitnesses who said they did not see how the fight started, police resubmitted the investigative report to Hallinan.

During Dutto's probe, Sanders said, investigators began questioning officers, who were advised by their lawyers and union representatives to respond only in writing.

"He appears to have made a unilateral decision to commence an investigation of the investigators. He appears to have worked under the direction and supervision of the D.A. rather than the department's command staff."

When reached Wednesday, Dutto declined to comment except to say, "When you see the transcripts come out, you will see what went on. I have been known to do the right thing."

The lieutenant has previously suggested publicly that he was transferred to the department's vice unit as punishment for aggressively investigating the case.

That transfer, on Jan. 14, was one of the overt criminal acts listed in the indictments against Sanders and the others. But Sanders' attorney stressed that, by then, the lieutenant's investigation had been completed for almost a month.

Legal experts differed on whether the meetings between Hallinan and Sanders would damage the prosecution.

Former U.S. Atty. Joseph Russoniello said Wednesday that Hallinan was unwise to meet alone with Sanders. "It's un-prosecutor-like," said Russoniello, who also formerly served as a deputy district attorney and now is dean of San Francisco Law School.

The meetings "disqualify him" from prosecuting the case "because he has made himself a percipient witness," Russoniello said. A percipient witness is someone who testifies about what he or she observed in a particular situation.

In fact, he said, the entire D.A.'s office could be disqualified because of Hallinan's personal meetings with Sanders.

But University of Santa Clara Law Professor Gerald Uelmen disagreed, saying, "I don't see anything improper about meeting with the police. [Although] I don't know how smart it would be to do that alone."

Said Golden Gate School of Law Dean Peter Keane: "It will make him a witness. As long as he is not trying the case, it is not enough to disqualify the whole office."

Interim Police Chief Fong got a taste of the public's frustration over the scandal in her first public appearance Wednesday evening. A woman took the microphone during the public comment session before the Police Commission and demanded that the new department leader do something about police corruption.

As Fong sat expressionless, another member of the audience shouted: "Why don't you answer the question?"

Commission President Connie Perry told Fong not to answer. She then abruptly ended the meeting.

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Times staff writer Maura Dolan and correspondent Imran Vittachi contributed to this report.

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