Clearly, a cover-up
Forget the legal technicalities – the grand jury transcripts show top cops had their fingers in Fajita-gate from the start

By Savannah Blackwell

The mainstream news media have had a field day questioning District Attorney Terence Hallinan's decision to file conspiracy charges against 10 San Francisco cops in connection with the Union Street brawl– and then drop the case against Chief Earl Sanders and assistant chief Alex Fagan (who is now acting chief). And while those questions are entirely valid, and the legal issues surrounding the case remain complex and tricky for Hallinan, the grand jury transcripts released last week prove one crucial political point:

The cops had this investigation rigged from minute one.

There may not be enough evidence to charge Fagan with criminal conspiracy to obstruct the investigation. But it's clear from the transcripts that he and other top brass had their fingers in the inquiry and that the three young cops – including Fagan's son, Alex Jr. – who are charged with beating two men over a bag of fajitas, were treated very differently than civilian suspects ever would have been.

Among the key evidence that has surfaced in the 1,300 pages of transcripts:

• Fagan Sr. admitted that, after receiving a phone call at about 4 a.m. from an officer who was not involved in responding to the assault report, he called his son on the cell phone the young officer still had with him even though he was in police custody. He told Junior not to talk to anyone about what had happened, then called lawyer Jim Collins, who often defends cops in misconduct cases. Fagan talked to his son several times during the course of those early-morning hours – not a privilege afforded most parents whose children have been apprehended by the police.

• Fagan Sr. did not immediately recuse himself from the investigation – in fact, Lt. Edmund Cota, the shift commander at Northern Police Station, told jurors the assistant chief called him and asked if he should come down to the station. The clear message to everyone handling the preliminary inquiry: the boss is watching.

As assistant chief, Fagan was in charge of police discipline.

• Although numerous officers who saw Fagan Jr. and Officers Matt Tonsing and David Lee said the three appeared to be very drunk, no blood-alcohol tests were taken until well after the incident – and several members of the top brass later testified that the three cops seemed sober.

• Capt. Gregory Corrales, who heads Mission Police Station, told jurors he left his home and headed to Northern Police Station around 4:30 a.m., because a Mission station officer, Kyle Ching, had phoned to tell him Tonsing needed his help. Corrales testified that he went to Northern Police Station to see Tonsing and Lee, who worked under his command, rather than respond to a report that a man had holed himself up in a Mission District building with a gun.

• Grand jury testimony suggests Fagan Jr. may have been allowed to change clothes, potentially removing evidence of the fight. A review of the testimony by officers who investigated the case or saw the rookies that night suggests the clothing turned in to Lt. Joseph Dutto, who was overseeing the internal investigation, was not, in fact, what the three rookies were wearing the night of the alleged assault. Falconer testified that he didn't take the three rookies' clothing into evidence at Northern Police Station because he was convinced they had changed their clothes since the incident. There were no bloodstains, and the clothing didn't match what the victims had described.

Capt. Marsha Ashe, one of Duddo's supervisors, testified that deputy chief David Robinson would not let her pursue search warrants to get the clothing that investigators believed the three cops actually wore.

Several days later Collins gave Dutto a pair of beach sandals, saying those were what Fagan Jr. had on his feet that night. But Capt. Dan Lawson testified that he didn't think Fagan Jr. was wearing such flimsy footwear (which seems logical, given the time of year and lateness of the hour). Fagan Sr., however, made a point of telling jurors that when his son showed up around 10 or 11 p.m. at the House of Prime Rib, where officers were celebrating Fagan Sr.'s promotion, he remarked that he noticed the "thongs" his son was wearing on his feet. "I said, 'Hey, glad you got dressed up,' " Fagan Sr. told the grand jury.

• Officer James Reyes, who was the first to respond after Adam Snyder, one of the two alleged victims, called 911, testified that Sgt. John Syme ordered him to turn his squad car lights off shortly after he and Syme stopped the three rookies in Lee's pickup truck. Reyes told jurors he had wanted to question the three, with the idea of taking them to the crime scene so the alleged victims could determine whether they were the attackers. But Syme put a stop to that, Reyes said.

• The testimony of Cota, Syme, and other witnesses shows that Cota, Syme, and Corrales were at the station with the three rookies for some time before internal affairs or other departmental investigators were notified of the incident. Cota did, however, call the Police Officers Association, which represents officers accused of misconduct.

• Several cops told the grand jury they were aware a cover-up was taking place. According to testimony from other witnesses, Lawson and Sgt. John Fewer told others, upon learning Corrales had headed to Northern Police Station, that some kind of cover-up must be underway. Fewer admits he told Hal Butler, one of the internal affairs officers who responded, that Corrales was there "orchestrating something.' "

"My impression was that Corrales was there to fix things," Fewer told jurors.

The D.A.'s problems

Before the transcripts were released, Hallinan had been getting a fair amount of bad press – and he hadn't exactly helped his own cause.

When Hallinan made his first official public appearance, March 3, three days after the grand jury's stunning indictments, the old boxer came out swinging: he gave the impression he would fully support charging seven top officers, including Fagan and Sanders, with conspiracy to thwart the investigation.

Three days later the San Francisco Chronicle published a part of the transcript that had been leaked – including a summary statement by Hallinan to the jury in which he told the 19 jurors he hadn't had time to put together the conspiracy case. (He had asked the jury only to indict the three rookies on assault charges.) The very next day, March 8, Hallinan was quoted in the Los Angeles Times as saying he needed to review the transcripts to determine what would hold up in court. The clear implication was that Hallinan might back off from the case entirely.

That hasn't happened: The felony assault charges against the three rookies and the conspiracy charges against five high-ranking members of the brass still stand. But the media roller-coaster ride has opened up the D.A. to accusations that he acted capriciously and irresponsibly – subjecting the community, the chief, and the chief's assistant to unnecessary whiplash. Critics have deemed him incompetent, or worse, saying he was mainly motivated by political malice and ambition.

Hallinan, who is running for reelection, conceded in interviews with the Bay Guardian March 12 and 14 that he should have warned the public from the start that he would need time to review the grand jury transcripts. Hallinan also said he made a mistake in telling an L.A. Times reporter he might not follow through with the case.

For the record, he told us that he won't be dropping any more charges and that he plans to go forward with the remaining charges.

Legal experts say Hallinan could have tried to talk the jury out of the indictment of Sanders – and anyone else – before leaving the room. Having sat through seven of the eight days of testimony, Hallinan probably sensed the evidence against the chief was thin.

But Hallinan told us he wasn't absolutely certain at that point that the case against Sanders was fatally flawed. He said he was "damn impressed" by the theory offered by the panel. And given that he has spent most of his legal career fighting for civil liberties and against cops who abuse their authority (his head bears the scars of a beating at their hands), it's not too surprising he enthusiastically went along.

And in fact, reading through the transcripts, it's easy to understand the impression the grand jury got – that the entire police brass instantly came together and tried to crush a serious investigation into the alleged wrongdoing of the assistant chief's son. In retrospect, with a few days to ponder the cold, hard evidence, Hallinan decided the charges against Fagan and Sanders might not stick in a court of law. But on a first pass, the theory that the cover-up went all the way to the top is at the very least plausible.

Hallinan is hardly out of the fire. While the grand jury has identified a series of actions taken by the five charged members of the brass as part of a conspiracy to cover up for the rookies, there's no guarantee he'll be able to prove all of the charges. The case will come down to whether Hallinan can prove that actions such as the flurry of cell phone calls between top cops at their homes and various stations the night of the incident, as well as other unusual moves, amount to an agreement to obstruct justice.

"These cases are going to be tough, and these motions to dismiss are going to be tough to get by. Because we don't have proof of that conspiracy. We just have circumstantial evidence," Hallinan said

And it doesn't help at all, he says, that Mayor Willie Brown has put Fagan Sr. in charge of the department. That, he figures, won't help him gather any new evidence before the trial.

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