April 9, 2003

By A.C. Thompson

Outside Judge Kay Tsenin's courtroom April 4, lawyers and paralegals were making bets. The smart money was on the judge tossing out the conspiracy charges against the five high-ranking cops who'd been indicted by San Francisco District Attorney Terence Hallinan just over five weeks ago.

And after a tense two-hour hearing, Tsenin did just that, dismissing the felony charges, to the delight of the police and their supporters who'd crammed into the gallery of Department 22. "I plan to be back at work tomorrow morning," a beaming Capt. Greg Corrales said.

"This shows a great deal of incompetency on the part of the D.A.," Corrales' attorney, Bill Fazio, boomed. "What the hell was he doing? The only people who benefited from this were the press."

But the celebrations may have been a bit premature. The case is by no means over. Even as the first chapter of the so-called Fajitagate scandal draws to a close, it's clear the culture of lawlessness uncovered by the incident on Union Street will be examined – not to mention litigated – for years to come.

For starters, Hallinan told the Bay Guardian he is looking into filing misdemeanor charges against the brass – deputy chiefs Greg Suhr and David Robinson, Sgt. John Syme, Lt. Ed Cota, and Corrales – possibly for "obstructing" and "delaying" the probe of the beating. That charge, violating California Penal Code section 148, is typically used against people who try to elude the police or resist arrest. "I'm not going to let this go," the D.A. said.

Even Judge Tsenin, while dismissing the conspiracy case and rebuking Hallinan for allowing the grand jury to listen to inadmissible testimony, strongly suggested that high-ranking cops had acted inappropriately.

In court Tsenin blasted the brass, saying, "Clearly, preferential treatment was accorded" the three junior officers, Alex Fagan Jr., Matthew Tonsing, and David Lee. "Clearly, how things were handled in some part of Northern Station were not proper," the judge continued, before slamming both Robinson and Corrales by name. Robinson's actions, she said, "raise serious concerns," while Corrales behaved in a manner that was "inappropriate, uncooperative, and distasteful."

Tsenin acknowledged the underlying premise of the conspiracy case: that higher-ups within the San Francisco Police Department wanted to derail any substantive review of the beatdown dealt to Jade Santoro and Adam Snyder. There was "evidence of delay" and "interference" with the probe, the judge told the court. She practically invited prosecutors to bring some sort of new criminal case.

And even if the D.A. changes his mind – as he is wont to do – and decides not to file new criminal charges, the department will still be under a microscope as the lawsuits generated by this incident and the rest of Fagan Jr.'s complaint-filled year in uniform hit the courts.

Attorney Ben Rosenfeld represents James Washburn, who is suing Fagan Jr. and an officer named Walter Contreras in federal court. Washburn accuses the two cops of attacking him – he was tackled to the pavement – and wrongfully arresting him on Oak Street in January 2002, and he is now asking for hundreds of thousands of dollars in damages. The SFPD, the suit says, doesn't know how to "treat assaultive officers as criminal suspects, rather than untouchable favorite sons."

Discovery in the suit is set to start in June, and Rosenfeld is definitely looking up the chain of command. "The suit is going to expose an absolute unwillingness to discipline officers," he said. "I don't know how many names will surface, but we won't have any trouble in exposing the SFPD's disinterest in policing itself."

Further excavation will come in the form of two or perhaps three noncriminal probes. Detectives with the department's Management Control Division are mounting an ongoing internal investigation, while the Office of Citizen Complaints is poised to start digging. The San Francisco Police Commission is considering an outside inquiry. Though all of these investigations are liable to move at a slow pace, and none is likely to lead to strong sanctions against any top cops, they may just unearth more unsavory information.