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The San Francisco district attorney’s office may have lost a battle when a superior court judge dismissed the felony conspiracy charges against five police department brass earlier this month — but prosecutors won’t concede the war just yet. They say they may try to take it to Sacramento by seeking an amendment to the state’s Penal Code that they could apply in future cases. District Attorney Terence Hallinan has been weighing a handful of options following Judge Kay Tsenin’s ruling April 4. No decision is set in stone, but the proposed Penal Code amendment — plus a civil grand jury proceeding — are among the more likely options, said DA spokesman Mark MacNamara. Charging the five police department brass with misdemeanors or appealing the dismissal are less likely, MacNamara said. Specifically, the legislative idea would mean seeking an amendment to Penal Code 141, making it a felony for a police officer to hide evidence in order to prevent someone from being charged with a crime, said Jerry Coleman, a managing attorney in the DA’s office. Section 141 was created in response to the Rampart police scandal in Los Angeles, Coleman said. It says that any police officer who intentionally plants or modifies evidence in order to get a person charged with a crime is guilty of a felony, punishable by up to five years in state prison. If it’s a felony to plant evidence to secure charges, said Coleman, “Why should it be any less of a crime to hide evidence to protect a criminal?” Coleman said such a statute could have been useful when the grand jury indicted 10 police officers in February. “If that had been in existence, I’m certain that that would have been strongly considered as an additional charge to present to the grand jury.” He suggested that preventing on-scene identification of suspects or delaying blood-alcohol tests — as prosecutors have accused the police officers of doing — might qualify as withholding evidence. “If one’s intent is for a legitimate basis, then there could be no crime,” Coleman added. “Intent is something that would always have to be proved.” The DA hasn’t found an author for the possible legislation, Coleman said, adding that it would be “impolitic” to say whom his office might pursue. Three junior officers involved in a Nov. 20 street brawl remain charged with felony assault. Seven police brass were charged with conspiring to obstruct justice, based on allegations that they tried to impede the investigation into the fight. The district attorney had earlier dropped charges against the two most senior officers.

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