X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
California Attorney General Bill Lockyer stood by the side of San Francisco District Attorney Terence Hallinan on Monday to say his office will not — at least at this point — take the prosecution of 10 San Francisco police officers out of the DA’s hands. In a case that could be the defining moment of Hallinan’s career, police officers face felony charges over the alleged mishandling of an investigation that followed a street fight. Police Chief Earl Sanders, Assistant Chief Alex Fagan Sr. and eight other officers entered pleas of not guilty on Tuesday. Three young officers, including Fagan’s 23-year-old son, face felony charges of assault and battery against two men who said the off-duty officers confronted them in November, demanded their doggie bag of steak fajitas, then pummeled them to the pavement. Sanders and six others in their chain of command are accused of conspiring to obstruct justice — perhaps by hindering the police probe and taking an aggressive veteran investigator off the case. Hallinan has been criticized by San Francisco Mayor Willie Brown and members of the police department who say the prosecution is based on Hallinan’s political agenda. On Monday, Lockyer said a local judge would be the one to decide whether Hallinan should not be involved in prosecuting the officers. Members of the media crammed into a tiny law library in the DA’s office on the third floor of the Hall of Justice as Lockyer explained possible scenarios in which the district attorney could be recused for conflict of interest. The defense could file a motion claiming abuse of discretion on Hallinan’s part or some other conflict of interest. “A local judge would then determine whether there’s a conflict,” said Lockyer, adding, “This happens fairly routinely.” Lockyer said that during a phone conversation on Friday, Chief Sanders told him he has documents proving Hallinan has a conflict. The attorney general’s office is investigating those documents, Lockyer said, but added that proving a DA guilty of abuse of discretion is difficult, and rare. “In the four years I’ve been in office we do not know of an instance when the AG said a district attorney [abused discretion]. We went in only when a DA had failed to prosecute.” Experts who backed Lockyer’s initial interpretation of the case say that even if politics is driving the prosecution, as Mayor Brown and others claim, it doesn’t mean the attorney general needs to step in. “Just the fact that the DA has something political to gain or lose isn’t going to create that kind of conflict [of interest],” said Gerald Uelmen, professor at Santa Clara University School of Law. Instead, he said, conflicts occur when a relative of the district attorney is a party or witness in a case, the district attorney’s office itself is accused of misconduct, or an entity tries to influence a DA investigation with money or goods. Nothing like that appears to have happened in San Francisco, Uelmen said. Stephen Barnett, a University of California, Berkeley, Boalt Hall School of Law professor, agreed. He added, though, that Lockyer eventually might have a role — but not as prosecutor — if the hiatus of top managers that began Monday leads to chaos in the police department. The chief said he will take a medical leave while the investigation progresses, but will not join the six top aides who stepped down from their jobs. John Burris, Sanders’ attorney, did not explain the basis of the chief’s medical leave request. The Police Commission last week agreed not to suspend Sanders or the others. “If it comes to the point where justice and public safety in San Francisco are threatened, that would call for the attorney general to get involved,” Barnett said. He compared that situation to a state takeover of a public school district. Lockyer spokesman Nathan Barankin said the office is monitoring the situation and right now sees no need to take over police management. The California attorney general’s office has not had to take over a law enforcement agency because of mismanagement in many years, although it came close to taking over the Santa Barbara sheriff’s office during riots in 1970, according to Lockyer’s office. UNCHARTED WATERS Meanwhile, City Attorney Dennis Herrera’s office so far has three clients in the matter: the mayor, the police department and the police commission. “Right now this is a consultative process,” said Herrera spokesman Matt Dorsey. “We’re in many respects in uncharted waters here.” Dorsey said the city attorney had not issued any written opinions for any of the three groups at this point, and said attorney-client privilege prevented him from specifying which areas of law the city attorney had been providing counsel on. According to legal experts, the city attorney is likely offering advice on whether the police can continue to employ the officers on active duty once they’ve been indicted. While the mayor, the police department and the police commission could have differing goals in some aspects of the case, Dorsey said this didn’t necessarily pose a conflict for the city attorney. “We’re not making recommendations about what should or shouldn’t be done. It’s a question about what can be done — what are the legal options,” Dorsey said. Should a civil suit be filed, it’s conceivable that state law could also require the city attorney’s office to represent the individual officers, but Dorsey said he didn’t know whether the city attorney would represent the officers in the event of civil litigation. In the civil trial involving the rogue cops known as the Oakland Riders, which settled last month, the Oakland city attorney did not represent or indemnify any of the individual officers. “The officers were acting outside the course and scope of their duties,” said Karen Boyd, communications director for the Oakland city attorney’s office. “They were not acting under official capacities as law enforcement officers.” BASIS OF INDICTMENTS Hallinan on Monday defended the grand jury indictment that plunged the Hall of Justice into chaos, saying, “No one in San Francisco is above the law.” “I understand the public feelings of shock, outrage, anger and apprehension,” Hallinan said. Fielding questions about whether the indictments came from a “runaway” grand jury, Hallinan said, “They returned an indictment based on the evidence they heard and, on that basis alone, arrest warrants were issued and the 10 arrests made. It is the job of my office now to evaluate the individual cases and vigorously prosecute these charges.” Speaking loudly and vehemently, the district attorney said, “These specific allegations of assaults by off-duty officers are extremely distressing. They strike at the heart of our civil liberties, a cause for which I have fought all my life.” Hallinan has taken a personal interest in the case from the beginning: Two days after the brawl, he was already complaining that the department wasn’t taking it seriously. The Nov. 20 incident began when Alex Fagan Jr. and officer Matthew Tonsing allegedly accosted Adam Snyder and his friend Jade Santoro as officer David Lee pulled up in his pickup truck. Snyder, who said he had no idea the men punching them were police, called 911 on his cell phone pleading for help. “I need some cops fast,” he said. “They just started fighting us over nothing.” Police arrived and took the officers away before Snyder and Santoro could identify them. Fagan Jr., Tonsing and Lee also were allegedly allowed to change their clothes and drink large amounts of water before they were tested for alcohol more than four hours later. Fagan Jr. has had at least 16 violent encounters with suspects in a 13-month period, sending six of them to the hospital, the San Francisco Chronicle reported. One of his supervisors wrote him up as disrespectful to both his bosses and the public. But other higher-ups apparently took little action other than to counsel Fagan Jr. about his conduct and order anger-management training. The internal police review of the incident was led by Lt. Joe Dutto, a by-the-book cop who took police brass at their word when they promised a full investigation. But Dutto ran into roadblocks: He was ordered to submit questions in writing and was denied access to some of the officers, their cell phone records and disciplinary histories. After Dutto refused to let a deputy chief see his case file, Sanders approved his transfer to the vice squad. Mayor Brown, who appointed Sanders as chief in July, has bitterly criticized Hallinan for bringing the indictments and has urged California’s attorney general to throw out the charges. “San Francisco does not need to have the entire command staff jeopardized,” said Brown, who promoted both Sanders and Fagan last year. PARALLEL CASES If Hallinan is recused, it won’t be the first time a local judge threw the city’s top prosecutor off a high-profile case. In 1998, Superior Court Judge William Cahill threw Hallinan off the murder case of Tenderloin gang leader Cuong Tran. Cahill recused Hallinan based on out-of-court comments and ex parte activities. The recusal was upheld in a state court of appeal. Dennis Riordan, of Riordan & Rosenthal, who represented Marjorie Knoller after she was convicted of second-degree murder in the dog-mauling death of Diane Whipple, said he sees similarities between that case and the police indictments. In the dog-mauling case, some believed the grand jury overreached in its charges, and Knoller’s second-degree murder charge was ultimately thrown out. “The significant parallel is that in both cases the … grand jury returned an indictment beyond what was specifically requested,” Riordan said. “I don’t think it’s in any sense unprecedented.” Riordan said the district attorney “doesn’t have any obligation to go forward on any charge,” but rather has “an ethical obligation not to go forward on any charge if he doesn’t feel like there is proof beyond a reasonable doubt to support it.” Another comparison could be made to a 2001 incident in which Hallinan’s son, Brendan Hallinan, was arrested for an alleged drunken assault in San Francisco. The case was turned over to the attorney general’s office to avoid conflict of interest. Recorder reporters Jason Dearen, Alexei Oreskovic, Jason Hoppin and Jeff Chorney contributed to this report, as did The Associated Press.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.