April 2, 2003

By Savannah Blackwell

The three rookie cops charged with beating two civilians in a late-night November 2002 brawl on Union Street had blood alcohol contents well above the legal limit, sources close to the investigation told the Bay Guardian.

If Officers Alex Fagan Jr., David Lee, and Matt Tonsing were indeed drunk, that fact has major ramifications not only for their cases but also for the prosecution of five top cops indicted by a grand jury for conspiring to obstruct justice.

On the simplest level, according to prosecutors, it would mean that Lee, who was behind the wheel of a pickup truck that night, could have been charged with drunk driving. And it would bolster District Attorney Terence Hallinan's felony assault case against the rookies.

More significantly, a legal prosecution brief says, it would call into question the credibility of two of the San Francisco Police Department's indicted brass, Capt. Greg Corrales and Sgt. John Syme, who claimed in testimony before the grand jury that some or all of the rookies appeared sober – and it might lead to charges that Corrales and Syme perjured themselves.

Other officers and investigators who saw the rookies that night testified that they looked pretty pickled, according to the grand jury transcripts. Inspector Hal Butler, for one, said, "Their faces were flushed. They were moving really slow and sluggish at the time that I had contact with them." Capt. Dan Lawson testified that the effects were such that the entire room the three were held in at Northern Police Station "smelled of alcohol" (see "Clearly, a Cover-up," 3/27/03).

The three young cops were not tested for alcohol until several hours after the incident. Superior Court Judge Kay Tsenin has ordered the results of those urine tests sealed pending a hearing April 4, when she will also consider a motion by defense lawyers to dismiss the conspiracy charges.

In a March 25 motion opposing dismissal, assistant district attorney Jerry Coleman noted that if the blood alcohol tests show the rookies were drunk, "it would corroborate the victims' observations of a violent, grunting Defendant Officer Fagan Jr. attempting to get at [alleged victim Jade] Santoro by smashing his way through a locked SUV window; it would cast doubt on the 3 assault Defendants' ability to recall details of that evening; it would present inculpatory evidence of impaired judgment in their interactions with victims; it would implicate defendant Officer David Lee in a new crime of driving while intoxicated; and it would virtually prove that Defendants Syme's and Corrales' sworn testimony about the sobriety of the 3 assault Defendants was not only utterly inconsistent with virtually all other percipient police witnesses that night, but was virtually perjurious,"

"In short," the briefs noted, "however those results are calibrated, they are extremely relevant evidence to the upcoming trial; moreover, they demonstrate the close transactional relationship between the assault and the conspiracy."

Attorneys for officers Fagan Jr. and Tonsing did not return our calls for comment. Lee's attorney is out of town and could not be reached.

Bill Fazio, who is representing Corrales, disputed that the rookies were drunk and told us that "more officers testified that they did not appear intoxicated than testified that they did." (Actually, the cops who say they seemed sober did not see them in person but talked to them on the phone. And one of them is assistant chief Alex Fagan Sr., whose son is one of the three rookies.)

Fazio also questioned the importance of the issue of sobriety. During grand jury testimony, he noted, assistant district attorney Al Murray interviewed several officers who saw the three and never asked whether they were drunk.

But Hallinan's office believes the issue is key. Indeed, prosecutors say in the brief, one of the main reasons several hours passed before criminal and internal affairs investigators were notified was to give the rookies time to sober up.

As Lt. Joe Dutto, who was managing the ensuing investigation of the altercation before the SFPD's top brass transferred him out, testified to the grand jury, "a lot of things weren't done out there on the street that should have been."

A grand jury charged Feb. 27 that top members of the police brass, including Chief Earl Sanders and Fagan Sr., participated in two conspiracies. The first took place the night of the fight, to protect the rookies from being held responsible for allegedly assaulting two civilians. The second involved plans to prevent Dutto from getting at the truth.

Corrales, Syme, and Lt. Ed Cota are charged with participating in a cover-up the night of the fight. Deputy chiefs David Robinson and Greg Suhr are charged with conspiring to stop Dutto's investigation. Hallinan has since dropped the charges against Sanders and Fagan Sr., and Fagan Sr. is now running the department while Sanders is on medical leave.

Tsenin issued a verbal confidentiality order after Jim Collins, attorney for Fagan Jr., argued that the rookies were forced by the SFPD's internal affairs unit to take the urine tests. Under state law, he argued, information cops give involuntarily to internal affairs investigators must remain secret.

Hallinan says that theory is ridiculous. "They're asserting that the peace officer's bill of rights [trumps] our rights to conduct a criminal investigation. That's obstruction of justice – just like they've been doing since the very beginning."