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Superior Court Judge Kay Tsenin should defer to a grand jury’s judgment and give it “the respect and support it is due” when she considers whether to dismiss conspiracy charges against five of the San Francisco Police Department’s top brass, the district attorney’s office argued in a brief filed Tuesday. In opposing the defense attorneys’ requests to dismiss charges against those officers, Assistant DA Jerry Coleman emphasized a theme of judicial deference to grand juries in both the opening and closing of the brief, citing Lorenson v. Superior Court, (1950) 35 Cal.2d, to argue that “a reviewing court may not interfere with the grand jury’s discretion or reweigh the evidence to determine its sufficiency.” District Attorney Terence Hallinan has already dropped conspiracy charges against the top two police officers, Chief Earl Sanders and Assistant Chief Alex Fagan Sr., saying that he didn’t have the evidence to win a conviction. They and five other officers were indicted for conspiracy to obstruct justice Feb. 27, for alleged efforts to thwart an investigation into a Marina District brawl involving three off-duty police officers. Much of Coleman’s brief is devoted to addressing a “stewpot of defense arguments” for dismissal point by point, including several claims from the officers’ attorneys that there was not probable cause to support their clients’ indictments, and that the officers’ right of due process was violated during the grand jury proceedings. The three junior officers were indicted for felony assault. At least one defense attorney was unimpressed with the DA’s rebuttal to the arguments for dismissal. “We believe that Mr. Coleman is in the unenviable position of having to devote most of his brief to defending his boss, Mr. Hallinan,” said solo Arthur Wachtel, who, along with his associate Maitreya Badami, is representing Lt. Ed Cota. “To the extent that they do address our legal arguments, they are not refuted in any way.” Coleman, on the other hand, said, “Their motions challenged what Mr. Hallinan did. I had no choice but to respond to those challenges. And I believe that the many points that I raised show that the law supports what was done.” For instance, defense attorneys argued in their motions that “by failing to provide a legal definition of obstruction of justice, either in the form of the indictment or in the jury instructions, the prosecution left the grand jury to construct its own theory of the offense.” While the DA’s brief concedes that “no definitional instruction on obstruction was given in the context of the conspiracy general instructions,” Coleman writes, “that mere omission of definition” did not mislead the grand jury to indict on less than probable cause. Coleman takes a colorful approach to some of his writing, such as one long lead-in to a case citation that begins, “Harry Lorenson was a Los Angeles police captain. In a set of facts all beginning with an unfair $10 repair bill, and as convoluted as a “Sunset Strip” film noir, Lorenson got mixed up with a nefarious hoodlum and his henchmen. . . .” Coleman said his legal writing has taken on a “journalistic” style for years in articles for the California District Attorneys Association. “It’s more engaging and more persuasive.” He used it in part with this brief “to catch the attention of the court and to distinguish it from the other side,” he said. The 41-page “Volume II — Legal Argument” followed the 67-page “Volume I — Statement of Facts” that was filed last week. The five officers’ attorneys plan to respond in writing today with closing briefs on their motion to dismiss, Wachtel said. All eight defendants are scheduled to appear in superior court Friday. Judge Tsenin is expected to rule on the dismissal motion and consider defense attorneys’ requests to hold separate trials for those facing conspiracy charges and those facing assault charges.

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