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This week The Recorder is publishing excerpts from recent interviews with the three candidates for the Nov. 4 district attorney election. On Sept. 9 the newspaper’s editorial board interviewed incumbent Terence Hallinan, who was accompanied during the session by his chief assistant DA, Murlene Randle; the office’s head of misdemeanor charging, Judith Garvey; investigator Paul Weiland and campaign manager Sue McNeil. An interview with Bill Fazio ran Monday. An interview with Kamala Harris will appear Wednesday. RECORDER: Why should the voters choose you? HALLINAN: Because I’ve done this job for eight years now. I have a good grasp on the district attorney’s office and the priorities of that office, in a period in which we’re going through a hard time. Arlo [Smith, Hallinan's predecessor] had 127 positions, and then he had four people that he didn’t have requisitions for but he somehow talked the controller into hiring them. I have 120 approved positions, but I’ve actually been allowed to fill only 109, so I’m working without a full deck. Everybody in town, I know, is in the same [boat], probably you guys are too. Everybody’s cutting down. I’m there 10 hours a day myself. So I think I have a good idea on how to make the office work as effectively as possible to make this city safe, even with reduced resources. When I look at how I judge myself on my success and all that — people go, “Well, conviction rate. You guys have the worst conviction rate or the second-worst conviction rate in California.” I know that’s true. Arlo Smith had the worst or the second-worst conviction rate. Joe Freitas did. It’s kind of the way, whoever succeeds me will be the same. Because it’s the way things work in San Francisco, where we have a police department that doesn’t use [Penal Code � ] 849b. Where we have thousands of diversions, [which] I like and that San Franciscans like. Of course, a success with diversion is a lost case as far as conviction rate goes. � And what I try to look at more is, how are things working? Are you successfully prosecuting crimes that you choose to prosecute? What is public safety in the town like? What does our homicide rate look like? Do people feel safe in San Francisco or do they have an operation that isn’t working? And I just feel the district attorney’s office is doing a good job with the diminished resources that we have. � RECORDER: Aside from the conviction rate, is there some other metric that you can point to that would attest to the success of the office? HALLINAN: Well, Murlene is giving me some community court statistics. I think every time somebody commits a public offense there should be consequences to it. I know there are some cases you just can’t do anything about because there’s no way they can be proved. We have a problem with the San Francisco Police Department not liking to take the time to write good police reports. And that impacts on our ability to successfully prosecute cases. But I do try to find a way that there will be some consequences paid. We have the community court program, which we’ve organized, which Julia and Murlene have given me statistics on here now. We have eight of them. We’ll have two more in a short while. They will be handling 10,000 misdemeanors a year.� Very impressive little operation. They can’t put anybody in jail, but they give community service. They can give fines that then go back to the community. And what’s most positive is it gives an opportunity for people who live in that community to talk to an offender from that community about the consequences on the neighborhood of their conduct. And it’s so powerful. I’ve sat through several of them. And when someone gets on and says, “Hey, that’s right where my kids are going to school,” it has a different impact. Those courts have a better turnout rate than they do at 850 Bryant St. They have a better completion of dispositions than they do at 850 Bryant St. They have an average cost of $90 a case compared to $3,500 at 850 Bryant St. So I think they’re a great success story that I’ve been working on since maybe my first year in office. � RECORDER: What sets you apart from the other candidates? And more specifically — you describe yourself as America’s most progressive DA. In what ways are you more progressive than Kamala Harris? HALLINAN: In a sense it’s the fairest form of flattery — everybody says they want to do the same thing that I’m doing. I don’t know why they feel they can do that. These things that I do are not easy. To have a program that can sustain medical marijuana availability to sick people in San Francisco is not just a matter of saying, “Well, OK, I’m for it, you can do it.” You have to really keep track of it. You have to make sure that it does not stray over, that they stick with the rules, that everything else happens. Same with all the other programs I use that everyone says, “Oh, we’re going to do the same thing. We’ll just do a better job than he does.” I know when Kamala was in my office, she was just — I mean, I hired her, I’m not knocking her or anything — but she was just another prosecutor. There was nothing particularly progressive about her as compared to anybody else. In fact, Murlene tells me she used to complain a lot about the fact that we prosecuted too many domestic violence cases, even cases that we had a witness not cooperating for us and a good chance we were going to lose it. But we find that if we prosecute those cases, they don’t come back to us. If we dismiss them, sometimes we see the person again. RECORDER: [To Murlene Randle] Kamala Harris used to complain that you were prosecuting too many domestic violence cases? RANDLE: Well, sometimes she would say that she thought — she was more conservative. In other words, that maybe we should look at the charging closer. It was some DV cases, some homicide cases — of course, I was the head of homicide at the time. And she would comment sometimes — there was one case in particular, I believe, we prosecuted the case where the gay man was killed, and people described it as a “one punch” case. And it was a dilemma on whether it was going to be manslaughter or whether we were going to charge it as murder. And after thoroughly reviewing it with Terence and looking at everything, I decided to charge it as a murder. And she commented, she thought that was too aggressive, that we should be more conservative. But there were reasons to charge it as murder, so that was – HALLINAN: The end result was we got a hate crimes enhancement. RANDLE: The case hung at jury trial between a murder and [manslaughter]. The guy ultimately pled to the manslaughter and admitted the hate crime enhancement. But she thought we were being pretty far out there putting a hate crime enhancement and to go for a murder. And she had that thing about some other cases. � HALLINAN: I think she was more concerned about the conviction rate and less concerned about the public safety side effects that sometimes charging [creates]. Domestic violence being a classical [example]. Plus the reality is by charging the guy, he’s in jail, the wife or the girlfriend or whatever it is has an opportunity to get away from underneath him, and literally if you let him go they can’t do that. And so sometimes you go, “This is going to be a tough case.” But hey, I always tell them, “We’re tough people.” And we do it. RECORDER: Because you take the lead in some of the high-profile cases — the deck collapse case, the murder in the Bubble Lounge, fajitagate, the dog mauling — there may be a perception that your haste to get out front has caused the office to stumble. HALLINAN: Well, I don’t know that I agree with you guys on that. The Bubble Lounge, that’s competency to stand trial, that’s still [pretrial]. The deck case definitely didn’t work out in that it just ended up being violations of the [building] code instead of manslaughter. What can I say? You win some, you lose some. I felt that case was a case that merited it. The judge confined what we were able to get in, and that’s the way it ended up. The dog-mauling case, I thought I did a terrific job in that, whatever you guys might think. That was the first murder conviction for a dog mauling in the history of California, even though the judge reversed it after eight weeks. And it was only the third or fourth manslaughter conviction for dog mauling. And if you stop and think about the way that case was run, I ran the case the way a coach should run a team. I went and got a budget drawn up for the case, went to the Board of Supervisors, got my budget put on reserve before we ever went to Los Angeles. So we were able to get all the witnesses down there, get hotels for them to stay in, not have the problems that you ordinarily have when you’re constantly having to go back and get more money. I selected attorneys who I felt were the right attorneys to try that case, and then — I mean, I love Jim Hammer and Kimberly Guilfoyle, but neither of them is what you’d call small-ego people. But we got through that case without any warring attorneys, a la O.J. Simpson, although there were times I had to go down, several times, “Well, look here, do this. And are you happy to do that? And can you work it out that you do this?” so that everyone felt that they were participating and doing what they want to do. And I kept the team basically working as a team and happy right through to the finish of the case. With a result which was a great result. I mean, the reputation of San Francisco is that we lose the big cases, and that was one where we won the big case. RECORDER: Why is it a great result if you were asking for a murder conviction and you end up with manslaughter? HALLINAN: Because we got the murder conviction. And the judge, because he accepted — and that’s still on appeal, and as I understand there’s the possibility that might be reversed. The judge said he believed what the woman said when she came out and said she didn’t think the dogs were going to attack the woman. I still think that might be reversed. I mean, sometimes you shoot for the moon to get where you want to go. And I wanted to be sure we got convictions, that those two people went to prison. RECORDER: How about in the fajitagate case? It seems again there was a very aggressive charging decision made. You had indicated to the grand jury that you weren’t 100 percent confident that the evidence would sustain the felony convictions [against police command staff], but the indictment was handed down and ultimately thrown out of court. HALLINAN: The jury did that. That’s what juries are there for. And I’m sorry, grand juries are — you know, there was one grand jury where they indicted the DA. And under the law once the indictment happens you have to file on it. The only way to dismiss is to go to court and dismiss it. I told the jury that we didn’t feel we had the evidence of who agreed with whom, because the crime is not interfering with justice, the crime is conspiring to interfere with justice. And I felt we couldn’t prove that, and asked them not to do [an indictment]. They chose to do that. That’s the way grand juries are and that’s their right. RECORDER: But can’t you act as a check on that, and decide – HALLINAN: Well, how could I? Objectively, how could I? The foreperson of the grand jury came out and said we want an indictment that has the conspiracy to interfere with justice. RECORDER: So your position is, if a grand jury says this is what we want to do, you have no choice but to go along with that? HALLINAN: That’s the law, as I understand it. RECORDER: Couldn’t you have gone into court when that indictment was handed down and dismissed the charge, or asked the judge [to dismiss]? You went into court and argued to the judge that the indictment should be sustained, right? HALLINAN: For the five of them [of the eight who were indicted]. RECORDER: Initially, for all of them. HALLINAN: Under the law, when a grand jury hands down an indictment, it’s different than a complaint. It goes — their indictment — I’m only a messenger boy. Their indictment is to the superior court. The only way it can be dismissed is by the superior court. I can’t dismiss it. So in other words, you have to file the indictment, you have to arrest the people, you have to put it on the calendar, and you have to appear in court and get it dismissed. There’s no other way to do that. The case I talked about in L.A., where they indicted the district attorney, he didn’t do anything about it, and the court of appeals ordered him to file on it. Because that’s the only way a grand jury indictment can be gotten rid of. As far as the case goes, we put on this evidence. Al [Giannini, deputy DA] is interviewing the witnesses. I’m there watching it, helping out where I can help out, seeing that Al’s got everything that he needs, and so on. Not paying that much attention. I’m sitting there asking this, asking that, like a second-bencher. I’m not looking at the whole picture. I miss a couple of key witnesses. When it reaches the end, Al says, “Hey, we don’t have the basis for an indictment.” I go, “Well, I don’t see where the conspiracy is here.” So that’s what we advised the jury. The jury, on the other hand, is 19 people sitting there with their long notebooks, writing away, watching everything that we say. They feel they have the circumstantial indictment. I felt on reading the grand jury transcript and using their indictment, which they filled in, as the road map for it, that there was enough circumstantial evidence that that case could have gone to a jury — against the five. I felt [Police Chief Earl] Sanders was kind of close, but, you know, there’s a lot of factors that enter a DA’s decision whether to file or not. And his age and other things were factors. But he didn’t come into the whole process until much later on. The other guys [in police management] are phoning at 2, 3 in the morning and talking to one another. We had this tree the police put together of who phones who and everything, and going over and waiting in the station. And there was a theory as to what they’re trying to accomplish there. So then when it came time to do what I do, I could have gone [to court] right immediately the morning they appeared and said, you know, throw it out. But I wanted to take the time to at least read the transcript of the grand jury and see — they worked hard on it. They are the bosses, so to speak. And I wanted to look at it and see what they said. � RECORDER: In talking about the case now you sound very much like a disinterested observer, but it’s hard to square that with your public rhetoric at the time. You made a lot of public statements [about a police cover-up]. HALLINAN: I do believe they covered it up. I could not prove the conspiracy. I do believe that individuals in the chain of command, higher up, refused to cooperate with us in a way [that made] investigation of the case difficult. And I will say that was not the only case they have done that in. Other cases involving police officers, all of a sudden we find we’re not allowed to talk to the investigating police officers. � What I had in fajitagate — you put yourself in my place, you’re the district attorney. There’s been a crime committed, allegedly or ostensibly by three police officers, one of whom is the [assistant] chief of police’s son. You undertake to investigate the case. Initially, I’m reading in the paper, they didn’t do a cold show. They didn’t do this, they didn’t do that. Disturbing, you know? So we sit down and we meet with them and we say, “Look, you guys know the routine here. Here’s what we need, here’s what we want to get.” And so on. We get back that the police officers from general works who are investigating the case are not going to be allowed to interview the responding police officers. So we say, “What do you mean, they can’t?” “No, they can’t interview the responding police officers.” Then that changes. We protest, [and] that changes to we can interview them but there’ll be no written reports. Then, before we can take them up on that, that changes to no, there have to be submitted questions, which will be sent to their various district stations, and they will respond to the questions. So it just seems to me from the district attorney’s point of view you have to say, “That’s unacceptable.” Because they’re police officers does not mean that the case should be handled differently than anybody else’s. � RECORDER: Bill Fazio has said that, with respect to the fajitagate case, what you should have done when the case wasn’t going as planned is gone in to see the police chief and taken the case over. HALLINAN: That’s how I got in trouble. � What, could I ask the attorney general to come in and investigate it? I have DA investigators. They’re not on the same level as the police department’s. They don’t have the same immunity from civil suits that police officers have. Those cases are properly handled by the police department. And I actually did go up to see Sanders and say, “Please, come on, let’s cooperate and work together on this.” But he ended up using that against me, as you remember, and saying, “Oh, [Hallinan] was trying to make a deal with him,” which was totally — well, I won’t go into that. I tried that, that didn’t work. � RECORDER: One more fajitagate question. With the benefit of hindsight now, is there anything you would have done differently? HALLINAN: Yeah. I wouldn’t have said you don’t have the evidence. RECORDER: You mean, in the grand jury proceeding. HALLINAN: I would have just let them do it as they saw it. � [In court], everybody automatically started off thinking, “Well, even the DA said there wasn’t enough evidence to indict here.” So they didn’t really look at what the grand jury set forth. It kind of gave everybody a prejudice against the indictment before it began. Where if I had not said my position on that, just left it up to the grand jury, then people would have evaluated that indictment, in my opinion, in a more objective fashion. � I think fajitagate, whatever you want to say, lifted a whole lid off people taking a more critical look at some of this conduct in the police department. � RECORDER: It seems that one of your main platforms is that there needs to be a check on the police department, the abuse of authority that occurs sometimes. HALLINAN: [That is] the responsibility of the district attorney. RECORDER: Are you ever concerned that making this such a public issue can hamstring your own deputies when they’re in court, given that the voting public is also the jury pool, and that they’re often going to be asked to make determinations of officer credibility? HALLINAN: Clearly [it's] not going to help them, our jury pool on � cases in the immediate future. But it’s something that has to be done. And hopefully, jurors will see that the district attorney is not going along with this [abuse], and we can trust the district attorney to do the right thing, [and] that will give us some credibility. I agree with you, it’s probably going to make our burden a little bit heavier, but it doesn’t seem to me there’s much of an alternative.� RANDLE: What are you going to do? You either become part of the conspiracy, or do you expose it? � RECORDER: We’re talking about trying to make sure that rogue cops aren’t abusing the public trust. But we’re also hearing you talk about these close cases, tough cases, where you guys are taking the aggressive approach, charging more aggressively than Kamala Harris perhaps, “shooting for the moon,” filing the most serious charge even if it’s a close call. Isn’t that also abusing your authority? RANDLE: Well, I don’t agree with that because we don’t do that. I have to live with myself too. I’m not just a prosecutor, I’m a human being. And I would never personally charge someone if we didn’t have the evidence to prove it. � RECORDER: [To Hallinan] You described “shooting for the moon” before on a close case. � HALLINAN: What I’m saying is I believe it was a murder. And if I believe there’s a murder there, I know I can charge a manslaughter and get a conviction, and maybe the murder is going to be hard to prove. But if I believe it, it’s worth going ahead and trying it. I’m not totally motivated by wanting to win every case. I recognize there’s some cases where you’ve got to be able to try a tough case even though you might lose it or you might not be able to get the conviction that you want. You know, I was a defense attorney for 20 years. I do try to be as fair as I can on a case. And I want to be absolutely convinced in my own mind that that person did the crime beyond a reasonable doubt before I’m going to charge that person with it.

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