A judge dismissed felony conspiracy indictments against Police Chief Earl Sanders and his second-in-command Tuesday, after prosecutors conceded that there was not enough evidence to convict the two.
In a scandal that has riveted this city, Dist. Atty. Terence Hallinan said he will continue to press conspiracy indictments against five other police supervisors for allegedly trying to cover up an early morning brawl involving three off-duty police officers. The fight began over a takeout bag of steak fajitas.
Hallinan told Superior Court Judge Kay Tsenin that "in the interest of justice" -- and after his personal review of 1,300 pages of grand jury transcripts over the weekend -- he would drop conspiracy charges against Sanders and Assistant Chief Alex Fagan Sr., whose 23-year-old son was one of three officers allegedly involved in the fight.
"In the interest of justice, I request to strike the names of Earl Sanders and Alex Fagan," Hallinan told the judge, adding that he did not think he could prove their guilt "with an abiding certainty."
But Hallinan made it clear he did not believe scrutiny of the chief and Fagan should end. He said new charges could still be filed against them "if the investigation turns up evidence that would substantiate their involvement." And Hallinan said, regardless of criminal complicity, he believes the ongoing case should prompt Sanders and Fagan to step aside.
"Given the situation where they have been indicted ... better discretion is that they not come back to work," Hallinan said in a news briefing after the court hearing.
The district attorney noted that Sanders and Fagan would be in the position of supervising and working with officers who may have testified about them before the grand jury and other members of the command staff. Most of the 42 witnesses who testified were police officers.
Mayor Willie Brown, who appointed Sanders and Fagan in July, said both should return to their jobs. "You can't take a job away from someone on the basis of allegations that prove to be unfounded."
Fagan is expected to assume the reins of the 2,300-member Police Department because Sanders has taken a medical leave. The chief suffers from a heart ailment and other health problems.
Sanders said in a statement that Hallinan's pursuit of the case harmed not only police but also the criminal justice system, which he said was "under the most horrific attack in California, if not the nation's history."
But the chief gave little clue to his future. "I will analyze today's proceedings with my counsel and will respond as I have throughout my 40-year police career; appropriately and decisively in the proper channels and to the relevant governmental authorities," Sanders said in a statement released by his lawyer, Philip Ryan.
The police chief has asked the state attorney general to intervene in the case.
At the afternoon court hearing, prosecutors requested a gag order, prohibiting attorneys from publicly commenting on the case. They also said they wanted the grand jury transcripts released.
"I am somewhat disturbed that some members of the defense team released portions of the transcripts to news media that they felt were favorable to their case," Hallinan said. "I'd just like to say, your honor, unless you put your foot down, we will have a circus."
At least one defense attorney responded by asking that the transcripts remain sealed. An attorney for the San Francisco Chronicle asked for time to file a court brief opposing any gag order.
Judge Tsenin scheduled a hearing for Friday to consider the motions.
Experts on Tuesday praised Hallinan's decision to drop the charges as a tactical maneuver, which they predict will strengthen his case against the other supervisors, including a deputy chief, captain and lieutenant.
"He has just done himself a big favor. He was taking on more of a fight than he could win," said Loyola University law professor Laurie Levenson. "The others actually begin to look more guilty as Hallinan begins to look more reasonable. It begins to look like he would only continue on those he has the goods on."
Sanders and Fagan Sr. were indicted Feb. 27 on conspiracy to obstruct justice charges, along with the other police supervisors. The three officers were charged with various assault and battery counts. Fagan and the other supervisors pleaded not guilty and stepped aside temporarily without pay.
Hallinan acknowledged in the briefing that the case against the supervisors accused of a cover-up is weaker than that of the three officers involved in the brawl. "One is a stronger case than the other," he said
Mayor Brown was not mollified by the district attorney's about-face on his two top police commanders. "This doesn't answer any questions," the mayor said. "For the amount of damage done to this Police Department for no apparent reason and without any real foundation, this requires more than just a dismissal. It requires an exoneration of the reputations of the people involved and for the city. I don't think there's any euphoria with anyone connected with this."
But Hallinan would not back down, saying it was proper for him to bring forward the grand jury's charges. Of Sanders he said: "I don't owe him an apology and he doesn't owe me an apology."
Rory K. Little, a former federal prosecutor who is a professor at Hastings College of the Law, says Hallinan should continue his investigation into the two top police commanders.
"If these charges are dismissed against Sanders and Fagan, arguably they step back into their offices and yet there has been no resolution of this investigation," he said. "It is pretty hard to be the chief of police and still understand you are open to being charged with a felony."
Brown said that the acting police chief, Fagan, will be able to separate the crisis from his job, as Brown said he did when his son was under investigation. "He had kept it separate," Brown said of Fagan Sr.'s relationship to his son's troubles. "It was the district attorney who put it together."
Police Commission member Victor Macris said he and the other commissioners would support Fagan if he eventually runs the department.
"I think he'd have our full support," he said. "This isn't a game to ruin people." Fagan "is a very capable officer. If you're in trouble, you'll call him first to help you."
James Lassart, an attorney representing Fagan Sr., said, "The fact that he was charged is a great injustice."
Hallinan said his office still faces a number of obstacles from the Police Department, which he said has yet to reveal the three officers' blood-alcohol levels on the night of the brawl as well as any prior criminal records.
Times special correspondent Carol Pogash contributed to this report.