A Tangled Web Has S.F. Stuck

Times Staff Writers

It was just a simple bag of steak fajitas.

But before San Francisco police investigators were through, they knew not only who cooked the takeout food but also how much it cost, who ordered it, who ended up eating it and what role it played in a bloody early morning brawl involving three off-duty police officers, including the son of the department's No. 2 man.

The fajitas were one tiny piece of an investigation that began with a common street fight and has escalated into a citywide scuffle, San-Francisco style. It has wreaked political havoc and threatens the careers of Police Chief Earl Sanders and several of his top aides, as well as the political fortunes of the district attorney.

The police probe, which Dist. Atty. Terence Hallinan last week branded a cover-up of "Watergate" proportions, had produced an investigative file with the heft and detail of a murder investigation.

The telephone-book-sized case file, which was obtained by The Times, demonstrates that after the initial hours the probe was conducted under the close scrutiny of the very man who now alleges a cover-up: Hallinan. He and his prosecutors met at least twice with police officials and investigators and sent them notes. At one point, they directed them back to the streets to get additional evidence.

The file documents also show how the by-the-book police supervisor conducting the investigation repeatedly clashed with department supervisors, who he thought were impeding his efforts, before he was transferred.

The case file is "Exhibit 1" in the state attorney general's examination into whether Hallinan mishandled the grand jury that indicted police brass on conspiracy charges even after Hallinan himself said there was not enough evidence.

After the indictments Feb. 27, Sanders took a medical leave and six aides temporarily stepped down without pay. They pleaded not guilty last week to conspiracy charges, and the three junior officers pleaded not guilty to assault and battery charges.

The day he was indicted, Sanders hand-delivered the nearly 500-page police file and other documents to the state attorney general's office to make his case that the department had conducted an honest investigation. He asked Atty. Gen. Bill Lockyer to determine whether Hallinan abused his prosecutorial discretion and whether the state should intervene.

Lockyer, who also is reviewing grand jury transcripts, is expected to decide this month.

The brawl started outside a Union Street bar when three rookie officers allegedly accosted two strangers, demanding their fajitas. Records show that within three hours, the department had notified internal affairs and had set into motion a criminal investigation of its own patrolmen.

Heat's On From Start

From the very start, the heat was on because one of the trio was the son of Assistant Chief Alex Fagan Sr., who that night was being feted at a local steakhouse. After one day, a San Francisco Chronicle story raised allegations that the probe was being botched.

Mayor Willie Brown soon characterized the incident as "mutual combat" and the police chief defended his investigation, comparing critics to those who vilified Jesus Christ. A police captain called the victims' version of events "ludicrous."

But less than a week after the incident, the department's probe was expanded to include the actions of not only the patrolmen involved in the brawl, but also the subsequent actions of officers who responded.

Suddenly, investigators were investigating investigators.

Leading the inquiry was Lt. Joe Dutto, who doggedly pursued every detail. At the request of Hallinan's office, he didn't just want to know whether patrolman Alex Fagan Jr. attended a party for his father that night before the brawl. Dutto wanted the guest list, the program, how much people drank and what the toasts were about.

He wanted cell phone records and e-mails. He summoned so many people for pointed questioning that cops began calling their union representatives.

His transfer in mid-January to the department's vice squad set off yet another round of allegations of cover-up. Within 10 days, Hallinan had brought the case to a grand jury of 19 local residents to do the job he no longer trusted the police to do themselves.

Late Call Is Trouble

Just before 3 a.m. on Nov. 20, Lt. Edmund J. Cota got the call at home from a sergeant: There was "a problem with Fagan's kid."

A bartender and a friend complained to police that they were attacked by three "frat types" after they left the Blue Light Cafe. One of the assailants approached the pair saying, "Gimme that food." In the ensuing fight, the victims were kicked and punched and one suffered a broken nose.

As police interviewed the victims at the scene, they pointed to a passing pickup truck and said, "That's them! Those are the guys!"

Police stopped the truck and found the younger Fagan, along with off-duty Officers Matthew Tonsing and David Lee, who were taken to a district station. Two of them had scrapes, cuts and bruises. Their vehicle was impounded.

Still, one victim later told patrolmen he was skeptical of a fair investigation. Since his alleged assailants were off-duty cops, he said, "They will probably get away with this," a responding officer wrote in his report.

An inspector was on the case by 5:10 a.m. The officers were read their rights and refused to answer questions without a lawyer present. Blood samples were taken at the scene, records show, and later were subjected to DNA analysis.

By noon, Lt. Dutto had assumed control of the case and assigned two investigators. The department issued a brief news release announcing an investigation into an "altercation" involving Fagan Jr. and the other officers.

Two days later, the first news story broke questioning the department's objectivity and fairness as Hallinan met for the first time with Dutto and other police officials.

In the following weeks, the district attorney publicly criticized the department, saying investigators failed to conduct an on-the-scene lineup of the suspects so they could be identified by the victims. They did prepare a photo lineup of the officers, but officials said the victims declined to participate.

Hallinan also said there was excessive delay in having the officers turn over their bloody clothing, and that they had not been required to take a blood-alcohol test, although the internal affairs division required a urine sample for drug testing.

Chief Sanders reassured the public in a Nov. 27 news release that he would "not tolerate any misconduct" by police.

Investigators examined the backgrounds of the officers involved -- including previous citizen complaints -- as well as the criminal records of the victims.

Meanwhile, Dutto's quest for information assumed an intensity that upset his superiors and some of his fellow officers. He requested department "administrative messages," which are computer blurbs sent among patrol units and stationhouses.

In a memo to Dutto, a superior informed him Nov. 29 that Deputy Chief David Robinson put his request "on hold," an action later listed in the conspiracy indictment. The file includes many pages of electronic communications among patrol officers, but it is unclear whether they were what Dutto was seeking.

On Dec. 3, the investigative file was submitted to Hallinan at a meeting attended by about 10 police officials and prosecutors. Hallinan returned the file later that day, asking for more investigation. According to an investigator's notes, the district attorney's "wish list" included interviews with additional police officers, as well as employees at the steakhouse and bar.

The tension between Dutto and his superiors boiled over in a Dec. 4 exchange with Robinson. By then, the investigators under Dutto were collecting taped statements from officers who had a role in events after the brawl.

At 6 p.m., according to a Dutto memo, Robinson called him and told him to bring the entire investigative file to the deputy chief's office for review.

The lieutenant refused, saying that he could not let the original file out of his possession, insisting that would jeopardize the integrity of the sensitive investigation.

Dutto instead offered to photocopy most of the file. The deputy chief agreed, but made Dutto document that he had refused to give the chief the complete, original file.

"Within a couple of minutes, Robinson came to my door, at which I handed him the photocopy of the case file," he wrote. "Robinson then ordered me to not have my investigators interview any more police officers involved in this case" until Robinson could meet with the city attorney.

The investigation chronology shows that Dutto's immediate supervisor later informed him that instead of face-to-face interviews, future interviews with officers must be in writing "as per the city attorney." That action by Robinson also was charged as part of the conspiracy.

Records show that Dutto continued to pursue the additional evidence sought by the district attorney. They ran down at least two additional witnesses, neither of whom had seen who started the brawl.

On Dec. 11, the updated case file was resubmitted to prosecutors, though investigators had some additional work to do.

The next day one of Dutto's investigators spoke with the owner of the House of Prime Rib, where the party for Assistant Police Chief Fagan was held. "One hundred persons attended," said the case file. "Cost forty dollars per person, commence 6:30 p.m., ended approx. 11:30-12."

The investigators even examined police communications for any reference to vehicles seen in the area. Then they checked the license numbers against a roster of police officers to determine whether any of the cars were being driven by officers who saw or knew anything. None were.

A Transfer to Vice

But Dutto's days as the investigation supervisor were numbered. In mid-January, he was transferred to the vice squad in what his supervisors said was part of a wholesale transfer of middle-level officers. He publicly accused the department of obstructing his investigation and suggested that the transfer was retaliation.

By then, he had already answered one of the last remaining questions in the case: What happened to the steak fajitas?

One victim told Dutto the food fell to the sidewalk during the scuffle. "He stated that approximately an hour and a half to two hours after the incident he picked up the bag of fajitas from the ground to see if they were still edible," Dutto said in a Dec. 6 memo to his investigators. "He took a couple of [bites] and then threw the rest of the fajitas and bag into the garbage receptacle nearby."

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