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The San Francisco district attorney’s office is filing fresh charges against three officers at the heart of the so-called Fajitagate scandal, a move that may keep DA Terence Hallinan from testifying about his handling of the case. Superior Court Judge Kay Tsenin granted a request Wednesday by Assistant DA Michon Martin to dismiss felony charges against the officers handed down by a grand jury in February. Michon — backed in court by Hallinan — announced that the DA was filing a fresh complaint that would reflect new evidence. The three defense attorneys for the officers later speculated that the move was a strategic one to keep Hallinan away from the witness stand, deflect scrutiny of his handling of the grand jury proceeding and avoid the embarrassment of having a judge dismiss the charges in a high-profile case less than four months before the DA faces re-election. “I think they realized that the judge was likely to dismiss,” said Freya Horne, a solo practitioner representing officer Matthew Tonsing. “I think that he wanted to avoid testifying and admitting there were problems with the indictment.” Mark MacNamara, spokesman for the DA’s office, declined to comment on the defense attorneys’ theories. “Our concern in this case is that these three officers be prosecuted as anyone else would be under the same circumstances.” Officers Tonsing, David Lee and Alex Fagan Jr., who has since left the police department, were indicted for assault and battery in February following an early morning street fight with two civilians that allegedly began over take-out steak fajitas. In a case that has rocked the city and put the police department under a magnifying glass, the grand jury also brought felony charges of conspiracy to obstruct justice against seven police brass. The DA dropped charges against two, and Tsenin dismissed the others in April. Given new information, “including evidence of intoxication,” Hallinan said, in a prepared statement, that he was taking the steps necessary to proceed with the prosecution of the three officers. “We cannot amend the jury indictment to include this evidence, and so we have no choice but to file a complaint,” the DA’s statement says. Immediately following Wednesday’s hearing, the DA said he intended to file a new complaint with clarified versions of the original charges, plus new ones. Tonsing would be accused of assault with a deadly weapon, and his co-defendants would face charges of driving under the influence and public intoxication, Hallinan said. The defense attorneys disputed whether there is any new evidence. “We have all the discovery,” Horne said. James Collins, who is representing Fagan Jr., said the new charges are “silly,” and called public intoxication “the lowest misdemeanor humanly possible.” He contends Hallinan could have filed the same complaint in December, without a grand jury. But in his statement, the DA said, “We were stonewalled in our investigation, and the grand jury was the only tool we had to unearth the facts.” Hallinan’s move to dismiss the charges pre-empted a defense motion to dismiss. In a brief, the three defense attorneys said their clients’ indictments should be set aside on due process grounds. They accused prosecutors of “outrageous misconduct” during the grand jury proceedings. Assistant DA Laura Zunino countered in a brief that “the prosecution did not commit misconduct, and defendants were not denied due process.” The defense had subpoenaed Hallinan, as well as Assistant District Attorneys Albert Murray and Jerry Coleman, intending to use their testimony to bring to light “unconstitutional improprieties” before the grand jury, Collins said. “By dismissing � he gets to sweep under the rug all the things that went wrong in the grand jury,” said Mark Nicco, who is representing Lee. It isn’t yet clear “to what extent the grand jury proceedings are going to be relevant” under a new complaint, Nicco added. The defense attorneys may subpoena Hallinan again down the road, Collins said. Collins criticized the DA for allowing one of the alleged assault victims and presumed witness in the Fajitagate case, Jade Santoro, to withdraw a guilty plea Monday to an unrelated drug felony — possession of marijuana for sale — and plead guilty to a lesser “wobbler” charge, a felony that later can be reduced to a misdemeanor. In published reports, critics have contended the DA reduced the charge to protect Santoro’s credibility on the stand — felonies can be used to impeach credibility, while misdemeanors cannot. Hallinan told reporters Wednesday that the DA’s office didn’t feel it was fair that Santoro had received a harsher punishment in the drug case than his co-defendants, who were more culpable. The DA declined further questions on Santoro. “Our interest is fairness,” MacNamara said later. Though a wobbler may eventually be reduced to a misdemeanor, he said, the lesser plea at this point is still a felony and “doesn’t change his portrait or standing in front of a jury.”

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