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Superior Court Judge Kay Tsenin made her displeasure with the San Francisco district attorney’s office clear Friday before she dismissed indictments against five ranking police officers charged with conspiring to obstruct justice. After a two-hour hearing and arguments from two prosecutors and five defense attorneys, Tsenin emphasized that while she wasn’t condoning the officers’ actions, she felt District Attorney Terence Hallinan should not have accepted the grand jury’s conspiracy indictments. “Since the DA’s office will not [drop the charges], the court must,” the judge said. The grand jury in February handed down indictments against seven of the police department’s ranking officers for conspiracy to obstruct justice, based on allegations that they tried to impede the investigation into the early-morning brawl of three off-duty officers and two civilians on Nov. 20. The DA dropped the charges against the city’s two top police officers — Chief Earl Sanders and Assistant Chief Alex Fagan Sr. — but chose to pursue the conspiracy charges against Deputy Chief Greg Suhr, Deputy Chief David Robinson, Sgt. John Syme, Capt. Greg Corrales and Lt. Ed Cota. The three junior officers involved in the brawl also were indicted for felony assault. During Friday’s hearing, defense attorneys for the five ranking officers echoed the arguments they’ve made all along — that their clients were indicted without probable cause and that the officers’ rights of due process were violated throughout the grand jury proceedings. During the prosecution’s presentation, Tsenin repeatedly pressed for an explanation of what evidence there was to show the defendants conspired together. “Was there any agreement, whether a nod of the head, a wink of the eye, anything like that to show that they were [acting] in concert?” the judge asked Coleman. “One infers the agreement circumstantially,” Coleman told the judge. Later, during his rebuttal to the defense’s arguments, Hallinan prompted laughter from the courtroom when he told the judge, “What I’m saying, your honor, is don’t get hung up on the agreement thing.” Elaborating on his comment, Hallinan told Tsenin that the prosecution has no smoking gun, and added that there rarely is one in such cases. “In terms of a conspiracy,” the DA said, “it is not necessary to prove that two people sat down and shook hands.” But defense attorney Leland Davis III, who represents Robinson, told the judge, “You can have all the overt acts in the world,” but by themselves they don’t prove a conspiracy. “There’s no connection.” Prosecutors urged Tsenin to defer to the grand jury’s decision, as they had argued in briefs they filed earlier. But Tsenin rejected the DA’s arguments. She said her focus in making her decision was not only whether there was evidence of an agreement, but also on the inadequate instruction that prosecutors gave the grand jury and on the “inflammatory hearsay” statements that were heard by the grand jury before it made its decision. The officers might have done a lot of improper things, but there was no agreement, the judge said. She added that following the scuffle and throughout the police investigation into the actions of the three junior officers, “clearly preferential treatment was accorded these defendants.” The judge added, “In no way does the court condone the manner in which this matter was handled” by the police department. But Tsenin said she was bothered that the DA told the grand jury he didn’t have sufficient evidence to convict the officers for conspiracy, but accepted the indictment nevertheless. “Were [the grand jurors] ever given the option of a lesser charge,” such as misdemeanor obstruction, Tsenin asked the prosecution. Replied Coleman: “That was not given to them. They didn’t request it.” The defense played off the judge’s tough challenges to the prosecution. Echoing one of her questions, defense attorney Arthur Wachtel — who represents Cota — told the judge, “In a sense I’m preaching to the choir.” Bill Fazio, who represents Corrales, said in a written statement distributed after the ruling, “The tragedy and injustice Hallinan has created by persisting in the false charges against Capt. Corrales and other ranking officers will never be rectified. As the saying goes, ‘You can’t unring a bell.’”

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