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The San Francisco Superior Court bench will not start an investigation into allegedly routine discovery violations by the San Francisco Police Department, choosing instead to wait for the matter to show up on its calendar. The court told San Francisco Public Defender Jeff Adachi Thursdaythat it will not slap an order to show cause on the police department. Adachi sought one in an effort to find out how many criminal cases may be affected after two police lawyers discovered that the department gave courts incomplete disciplinary reports on its officers, possibly for years. “It’s clearly an elephant in the living room,” said Judge Ksenia Tsenin, who presides over the felony master calendar. “And we’ve taken notice of it. But how we’re going to deal with this elephant in the living room is another thing.” Meanwhile, a spokesman for the city attorney’s office, which was told months ago that required records weren’t being turned over, downplayed the scope of the problem. Adachi sought a broad probe of the apparent failure to turn over complete reports, believing it was intentional. Thursday’s initial step by the bench will force lawyers to litigate the potential Pitchess violations in court without knowing whether their efforts will prove fruitful. “I was hoping that they would take a proactive stance,” Adachi said. He still wants to change the judges’ minds. For Tsenin, the question is justicability. “I don’t have an issue in front of me,” she said. “If I were to issue an order to show cause every time I read something in the newspaper, I’d be more like a grand jury and not a judge.” However, Tsenin did leave some wiggle room for a different approach. “We’re still looking at it. There may be something else we can do.” The revelation about the Pitchess problem is a result of a case now before Tsenin — grand jury allegations that three off-duty officers assaulted two men, and that five members of the police department’s top brass tried to cover it up. The central figure in that probe is Alex Fagan Jr., son of Acting Police Chief Alex Fagan Sr., who saw District Attorney Terence Hallinan dismiss conspiracy allegations against him and Police Chief Earl Sanders earlier this week. Fagan Jr. has a long disciplinary rap sheet, but not all the reports on him were kept in his file at the Hall of Justice. Two police lawyers began investigating and learned that disciplinary records were routinely kept elsewhere, never making it to the central file. The two left the police department’s legal team after revealing a pattern of what could lead to hundreds of Pitchess violations. They say they were met with resistance when they sought to investigate further. At some point, the two police lawyers contacted the city attorney’s office. San Francisco is unique in that the city attorney does not usually get involved in Pitchess motions, leaving it to the police department’s legal staff. “This matter was brought to our attention some months back by the two members of police legal, and we advised them at that time what would be the appropriate way to proceed,” said John Shanley, a spokesman for City Attorney Dennis Herrera. Shanley said he couldn’t comment on what that advice was or whether the two lawyers followed it. However, Shanley disputed the seriousness of the scandal. “We welcome a review by the courts of this matter — and actually we think that it’s important for the purposes of public confidence — but based on the information we have, we believe the problem is isolated and not as systemic as recent news reports have indicated,” Shanley said. Shanley also said the city attorney’s office, Adachi and current members of the police department’s legal team will meet to talk about the problem, “to make sure that the problem is as isolated as we think it is.” Adachi said he has already identified a handful of cases that might be investigated further and provide Tsenin and her colleagues a platform on which to act. “We have a couple of cases that we’re looking at,” Adachi said.

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