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Defense lawyers for San Francisco police brass indicted on conspiracy charges argued Monday that the case is the result of a grand jury process guided by illegal evidence, conjecture, mismanagement and a failure to instruct jury members on the legal definition of conspiracy. The lawyers say District Attorney Terence Hallinan never even provided the grand jury with a definition of conspiracy, making it “highly likely” that the five officers were indicted on something less than probable cause, according to a motion asking Superior Court Judge Kay Tsenin to dismiss the charges. The brief argues that the reason Hallinan never gave the definition is that he didn’t have the evidence to support it. “In other words, it was the prosecution’s lack of evidence that resulted in the omission of the relevant law; and it was the prosecutor’s failure to provide guidance as to the applicable legal standards that resulted in an indictment based on insufficient evidence,” the brief reads. The 53-page motion to dismiss the indictment was prepared by solo Arthur Wachtel, the lawyer for Lt. Edmund Cota. It argues for a dismissal against all members of the San Francisco Police Department facing conspiracy charges: Deputy Chiefs Greg Suhr and David Robinson, Capt. Greg Corrales and Sgt. John Syme. “They didn’t give a definition,” said Wachtel co-counsel Stuart Hanlon, who is representing Suhr. “They just threw this stuff at them at the end.” The five officers were implicated by Hallinan as having aided in an attempted police department cover-up of the early-morning brawl involving three officers, including Alex Fagan Jr. The three had spent that evening celebrating the elevation of Alex Fagan Sr. — Fagan Jr.’s father — to assistant chief. Fagan Sr. is now the acting police chief. Hallinan dismissed charges against Fagan Sr. and Police Chief Earl Sanders on March 11. Sanders is out on medical leave. The brief also argues that Hallinan violated the defendants’ rights by ignoring exculpatory evidence and repeatedly injecting opinion into the testimony. Mark McNamara, a spokesman for Hallinan, said the office had not received a copy of the brief and could not respond to it. Assistant District Attorney Jerry Coleman, in charge of responding to the motion, said he could not comment either. Coleman did say he would file a reply to the motion’s factual assertions today. A full reply is not due until Monday. As the brief notes, the charge for which the five officers were indicted — conspiracy to obstruct justice — has been the subject of repeated challenges for being overly vague. Wachtel argues that this is one of those cases. Cota and Syme, for example, are charged in connection with their actions during the initial investigation into the street fight. They are only included in handwritten counts 5 and 6 of the indictment, accusing them of not only failing to have the victims identify the officers involved in the fight, but of “generally fail[ing] to conduct proper police duties and procedures in the course of an investigation” and “promot[ing] misinformation.” Those allegations are too vague to support a criminal charge, Wachtel wrote. In a twist, the defense uses Assistant District Attorney Albert Murray’s own words in support of the dismissal, noting that the lead prosecutor in the case told the grand jury that “if you don’t have an agreement between two or more people . . . all the overt acts in the world aren’t going to get you [a] conspiracy.” The document goes on to point out several areas where, Wachtel argues, the district attorney mismanaged the proceedings. He says Hallinan knew that some police officers could end up being indicted for their response to the fight, yet failed to inform any of the 45 officers who testified during the grand jury’s investigation about their Fifth Amendment privilege against self-incrimination. “In the absence of such admonishments, the testimony of each officer was inadmissible as against himself,” Wachtel wrote. “The prosecution simply disregarded the defendants’ Fifth Amendment rights during those proceedings.”

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