San Francisco Dist. Atty. Terence Hallinan is pressing criminal conspiracy charges against the city's police chief and six police commanders even though records show he personally told a grand jury there was not enough evidence to indict them.
During closing statements to grand jurors, Hallinan and Deputy Dist. Atty. Al Murray said they were not seeking any charges related to the alleged cover-up of a street brawl involving three off-duty officers, according to grand jury transcripts.
The indictments a week ago of Police Chief Earl Sanders and nine others have thrown the city government into turmoil.
Legal experts say it would be improper, even unethical, for the D.A. to move forward with charges if he believed they might not stand up in court.
The Times reviewed only non-evidentiary portions of the more than 1,300-page transcript, compiled during 11 days of hearings. The newspaper did not have access to other evidence and exhibits.
Hallinan would not comment Thursday on the transcripts, which remain under seal.
His spokesman, Mark MacNamara, said the district attorney was concerned that reading selected portions of the grand jury proceedings would not fully reflect the evidence in the case.
"He is perturbed by the impression that this case is the sum of the leaks rather than the entire testimony going to the grand jury," MacNamara said.
The transcripts show that on the last day of the grand jury's review, Murray told the panel: "At this time we are not satisfied that we can sustain the requisite burden of proof with respect to the conspiracy allegation. And so we will not be asking you for a determination with respect to conspiracy."
Later, the veteran prosecutor added: "It will not be your chore to consider the facts that we developed with respect to the conduct of the investigation" that the Police Department did of the brawl "or the investigators."
During the summation, top prosecutor Hallinan endorsed Murray's assessment of the case. "We have chosen not to submit the request for an indictment on the obstruction charges in this case," he said. Prosecutors, he explained, had not "had the opportunity to find who agreed with who to do what."
The D.A.'s statements before the grand jury appear to contradict comments he has made since the indictments became public one week ago. Hallinan has repeatedly said that when the grand jury transcripts are released, "everyone will understand" why his office is prosecuting the chief and his top lieutenants, including the No. 2 official in the department. He has also dismissed suggestions that he or his deputy prosecutor lost control of the grand jurors.
While a judge has ordered that the grand jury transcripts remain temporarily under seal, the court has released copies of the documents to attorneys representing the 10 indicted officers.
It is unclear why the grand jury, after hearing concluding statements from Hallinan and Murray, went ahead and indicted Sanders and the command staff. The jury forewoman declined comment, saying the district attorney's office advised her not to speak about the case.
Hallinan's exchange with the grand jury took place just hours before the panel returned its indictments on the evening of Feb. 27. The following morning, news broke that the grand jury had indicted the 65-year-old Sanders and six other officers for conspiracy to obstruct justice. Also charged, with a variety of assault and battery counts, were the three off-duty officers involved in the Nov. 20 street brawl outside a bar.
Even after the grand jury handed down its judgment, the district attorney was under no obligation to sign the indictments or to file them with the court, legal experts said. In fact, experts said, ethical guidelines require a prosecutor not to pursue a case unless he believes there is probable cause -- a strong suspicion -- to believe that the suspects are guilty.
"Why did the D.A. sign the indictment if they didn't believe in the indictment?" asked Loyola Law School professor Laurie Levenson, a former assistant federal prosecutor. The prosecutors, she added, could have asked a judge to dismiss the indictments. "The prosecutors' hands were not tied," Levenson added.
Peter Keane, dean of the Golden Gate School of Law, agreed. "It is unethical and a violation of the rules of professional conduct for a prosecutor to go ahead and proceed with the prosecution unless he feels an absolute certainty that the evidence is there," he said.
The Rules of Professional Conduct of the State Bar of California say prosecutors should not initiate charges not supported by probable cause. American Bar Assn. rules go further, declaring a prosecutor should not pursue criminal charges when there is insufficient admissible evidence.
When reached for comment, Sanders' attorney, Philip Ryan, said it would be inappropriate for him to discuss the grand jury transcripts. But he said, "I am most elated by what I read. I can say the jury transcripts confirm what I knew before the indictment -- that is, that Earl Sanders is an honest and capable chief."
Sanders, who this week took a medical leave and turned the department's command over to his top assistant, was informed of the contents of the grand jury transcripts Wednesday night. He has a variety of health problems, including high blood pressure and diabetes.
"The chief is tranquil, not surprised and is resting at home," said Ryan. "He sounded good last night."
Said Arthur Wachtel, who represents indicted Lt. Edmund J. Cota, a watch commander working the night of the brawl: "It is my opinion that the indictment does not, on its face, state a crime. It is nothing more than a job performance critique."
The controversial case has widened an already deep rift between the Police Department and the district attorney.
Under normal circumstances, police and prosecutors must work closely together in order for the criminal justice system to function. But San Francisco's justice system has been troubled for months and suffers one of the lowest conviction rates of any big city in the state.
Expressing concern that the relationship was being destroyed, Sanders' attorney, Ryan, on Monday asked Hallinan to dismiss "without prejudice" the indictments against the command staff and to turn the case over to Atty. Gen. Bill Lockyer to determine whether there was reason to proceed.
Ryan said Thursday he has received no response from Hallinan, and the district attorney declined to comment.
The attorney general is considering a separate request made last week, by Chief Sanders, to intervene in the case. Lockyer's office on Thursday asked defense attorneys to support his efforts to acquire the transcripts before they become public on March 15.
Over the course of nearly two weeks, the grand jury heard from 42 witnesses, including some of the indicted officers, but not from Sanders himself.
The transcripts show that after the testimony concluded and the grand jury received other evidence, Murray slowly led the 19 grand jurors toward his conclusion that there was not enough evidence to support a charge of conspiracy to obstruct justice.
"Conspiracy is, in fact, nothing too much more than an agreement between two or more persons to do an act that is unlawful," the prosecutor told the grand jurors.
He also explained that such a crime must include overt acts that advance the conspiracy. "But if you don't have an agreement between two or more people to do an unlawful [act], all of the overt acts in the world aren't going to get you conspiracy."
He told the jurors they were being asked only to make a determination about criminal conduct during the night of Nov. 20, when three off-duty officers allegedly accosted and beat two men over a bag of takeout food. One of the off-duty officers is Alex Fagan Jr., son of the department's No. 2 official, Assistant Chief Alex Fagan Sr. The elder Fagan is among seven police supervisors who agreed to go on suspension last week as the probe continues.
Murray and Hallinan both seemed to try to reassure grand jurors that they would accomplish something important, even if they addressed only the beating case.
In telling the jurors that he would not to ask for a conspiracy indictment, Hallinan noted that "we have run into obstruction after obstruction as we have tried to pursue this case." But despite those obstructions, he said, the jury could still reach a decision on the alleged beating.
After the recommendation against considering conspiracy charges, however, the panelists were still read standard jury instructions for conspiracy charges.
The charging documents provided to the jurors also included a conspiracy charge, leaving a blank line for the jurors to add the name of whomever they wanted to indict. There was no indication why prosecutors did not simply cross out the conspiracy count from the charging form if they did not want the jurors to consider it.
Experts questioned the guidance provided to grand jurors by the prosecutors.Dist. Atty. Jim Fox in neighboring San Mateo County said his office would not present grand jurors with forms for charges they were not seeking.