S.F. Cop Says Probe Hindered

Special to The Times

While top police officials blame an overzealous district attorney for the crisis in the city's Police Department, grand jury transcripts show that a police lieutenant made the most damning indictment of the department's behavior after a street brawl involving three off-duty officers.

Joseph Dutto, a by-the-book lieutenant who supervised the investigation, said he feared interference from the outset, because one of the officers was the son of the department's No. 2 man. And Dutto said higher-ups presented him with "blockades" after he began investigating the department's probe of the case.

The investigation "has been totally hindered," Dutto said in grand jury testimony obtained Saturday by The Times. At one point, his requests for police cell phone records and computer text messages were placed on hold, he said.

Despite that meddling by police brass, Dutto told the jury, he eventually was able to get most of the information he sought and to build a case against the three officers accused of attacking two men to get their bag of fajitas.

The grand jury indicted the three rookie officers implicated in the Nov. 20 fight and charged Police Chief Earl Sanders and six supervisors with conspiracy to obstruct justice. Just days after Sanders and Assistant Chief Alex Fagan Sr. were indicted, Dist. Atty. Terence Hallinan moved to dismiss the charges.

The transcript provides details about a case that has damaged the reputation of the 2,350-member Police Department and has tarnished the careers of some of its senior leaders. Some of those details:

* During the fight, an alleged victim said, one of the officers used an anti-gay epithet after accosting him and a companion.

* Police at first failed to collect as evidence a beer bottle allegedly used by one of the combatants as a weapon.

* The officers were later allowed to stay together and use their cell phones after being detained.

* There was no sobriety test by criminal investigators. In what was described as a slip-up, a criminal investigator arrived to speak with the officers, but they had been taken away for an Internal Affairs sobriety test.

* The clothing the officers wore was not collected immediately.

"You do not have to convince me that this process was not perfect," said Police Officers Assn. President Chris Cunnie. "But you will never convince me that the acts amounted to conspiracy or felonious obstruction of justice."

Sanders is rarely mentioned in the transcript, and his only overt act was to agree to Dutto's transfer in mid-January. Fagan, who was indicted, testified that he recommended against the transfer of Dutto.

The 19-member grand jury heard testimony from 42 witnesses. Several were command staff members who were indicted. Notably absent from the roster of witnesses was Sanders. His attorney, Philip Ryan, said that had the chief been afforded an opportunity to testify, there might well have been no conspiracy indictments against the Sanders and others.

The chief has said he twice met with Hallinan to discuss the department's inquiry and once offered to let the D.A.'s office take it over if Hallinan was unhappy with the police probe.

The 1,300-page transcript contains a welter of material related to the fight and the initial hours of investigation.

Although Hallinan has said that "the case was not handled as an ordinary crime scene," the police chief has said the investigation was conducted honestly and according to procedures.

For hours after the incident, police treated it as a case of "mutual combat" or possibly even assault on the off-duty officers by the men who called 911.

Lt. Edmund J. Cota, the shift commander at the nearby Northern Station, told the grand jury: "From my perspective, it had been kind of a mutual combat. We have [one of the officers] saying he got Sunday-punched."

Cota also said he received a phone call from Assistant Chief Fagan the morning of the brawl.

Q: "Did chief Fagan in that conversation suggest to you anything about what you should do or how you should handle the case or any of the officers?"

A: "No. He asked my opinion about something.... He asked if I thought he ought to come in.... I said, 'I think this is one you want to step away from as the chief but not as the father.' "

When Dutto was put in charge of the investigation that morning, he said, he heard that his superiors were not happy with the investigation done on the night shift, and he hoped that department brass would not put "undue pressure" on him and two investigators he assigned to the case.

He testified that he found deficiencies in the probe: No independent witnesses had been found at the scene, so the area needed to be canvassed. And he found that the officers were not subjected to a street-side lineup, although the alleged victims had pointed the officers out as they passed by in a pickup.

Two of his superiors echoed some of his concerns.

As Dutto began making requests to interview officers about the case, he said, "Scuttlebutt I was hearing was people weren't happy." And he wrote himself a note that Deputy Chief Greg Suhr was making inquiries into the case. Dutto said Suhr asked one of the investigators "if Lt. Dutto was investigating the incident beyond normal practice ... and if Lt. Dutto was being overly aggressive." Suhr was indicted on obstruction charges.

Dutto also told the grand jury about his conflicts with Deputy Chief David Robinson, the head of investigations, who put on hold some of his information and, after consulting a city attorney, required Dutto to interview police officers in writing.

Robinson said: "This case had turned to a point that officers felt that they were subject to a criminal investigation, and as such that they would either assert their rights as citizens or not respond.... They chose not to respond." The written questions, he said, were "just a way to facilitate gathering information."

Dutto said he was hindered by the actions of superiors. Then he was asked: "Can you tell us if anything that your superiors have ever done during the course of the investigation has affected ... the final determination ... with respect to the allegations?"

"I really can't," he said. "I don't know how to really answer that."

Q: "OK. You can't say that."

A: "No."

In some of the most colorful testimony, Capt. Gregory Corrales told why he thought the story of the two civilians in the brawl was "ludicrous."

"This thing about stealing their fajitas, you know, I mean, police shouldn't get in fights," he said. "But if they do, it is over a woman. Not that they want to take somebody's fajitas. First off, they don't know where that food has been."

Corrales was accused of spreading misinformation about the case, and saying the officers did not appear drunk, while other officers said they did.

On Feb. 27, Hallinan and Assistant Dist. Atty. Albert Murray said there was not enough evidence to support conspiracy charges. "At this time, we are not satisfied that we can sustain the requisite burden of proof with respect to the conspiracy allegation," Murray told the jurors.

Instead, the prosecutors concentrated on the assault cases against the young officers, whom Hallinan described as bullies.

But the grand jurors were not satisfied with the simple case against the rookie policemen.

At 5:15 p.m. that day, when they returned to the meeting room with indictment in hand, the jurors had written in seven additional names as defendants, including those of Sanders and Fagan. The only overt act listed against Sanders and Fagan was that they had removed Dutto from the investigation.

The charge came despite testimony from Fagan that he had argued against the transfer. Fagan had earlier testified he suggested that Dutto "not be transferred until the completion of the investigation and that it was sent to the district attorney."

Fagan said he first heard of the Nov. 20 incident from an assistant, Officer Jeff Clark, who called him at home. "I think Jeff told me it was a fight," he said.

Fagan said he immediately called his son's cell phone and advised him "to not say anything to anybody" until he could arrange for an attorney. For his part, Fagan said he felt his hands were tied in the situation.

"I knew from the very outset when I got the call, knowing my son was on probation, knowing that I was the assistant chief of police, that this thing would be under the microscope," he testified. "I never dreamed it would reach the proportions it has. But I knew how serious this would be. And sort of to the detriment of my son, from the very beginning I had to recuse myself."

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