685** Grand Jury Doing What It Is Supposed To Do **
- Mar 4, 2003J.A.I.L. News Journal
Los Angeles, California March 4, 2003
Grand Jury Doing What It Is Supposed To Do
SFPD indictments shock the city
ANGRY JURORS: Panel apparently broadened case
Chuck Finnie, Chronicle Staff Writer
Saturday, March 1, 2003
District Attorney Terence Hallinan got more than he asked for when a grand jury returned its indictment of 10 cops, including the upper echelon of San Francisco's police department, sources within the district attorney's office said Friday.
Hallinan "felt like the bombardier on the Enola Gay" when he looked at the indictment prepared by the panel Thursday, one source said, referring to the U. S. plane that dropped the atomic bomb on Hiroshima in World War II.
He thought, "Christ, look what we have just done!"
On Friday, as word of the indictment spread, the outlines of how the SFPD's top command came to be implicated in a case that began with three cops involved in a street fight began to emerge from interviews.
The answer appears to lie in a grand jury with a mind of its own.
According to sources familiar with the case, the district attorney's office,
represented by veteran career criminal prosecutor Al Murray and Hallinan himself, was seeking a more limited indictment when it began grand jury proceedings on Jan. 28.
"You just had a grand jury that ran away," one source said. "It can happen where you say, 'I would like to indict A and B for crimes 1, 2 and 3,' and the grand jury comes back and says, 'We also want to indict C, D, E and F on 4, 5 and 6,' "
Hallinan declined comment, and Murray could not be reached. But, according to one of the sources, Hallinan -- during opening and closing statements to jurors -- invited them to not sit passively as listeners but rather delve into the evidence as they wished.
One of the sources said Hallinan asked the jurors "to operate as investigators," and they apparently took him up on it.
"They asked hundreds of questions" and heard from 42 witnesses, one source said.
By the end, the grand jurors returned felony assault indictments against Officers Alex Fagan Jr., 23, son of Assistant Chief Alex Fagan Sr., Matthew Tonsing, 28, and David Lee, 23, and conspiracy to obstruct justice indictments against Chief Earl Sanders, second-in-command Fagan Sr., Deputy Chief Greg Suhr, Deputy Chief David Robinson, Capt. Greg Corrales, Lt. Ed Cota and Sgt. John Syme.
Fagan Jr., Tonsing and Lee are accused of beating up two men while off-duty outside a Union Street bar at about 2:30 a.m. Nov. 20, after a celebration at a restaurant several blocks away commemorating the promotion of Fagan Sr. to assistant chief.
The others are accused of impeding the police investigation of the alleged assault.
One grand juror who spoke on condition of anonymity said the jury, which was impaneled for four months and heard numerous cases, deliberated fairly in the police department case.
"It was made up of 19 very good citizens, an extremely diverse group," the juror said. "None of us took this lightly. We knew this would impact the city at all levels, it would impact all these people's lives and their family's lives. We knew there was a high threshold."
Of the decision, the juror said, "It had to do with the facts of the case. That's really what we judged the evidence on."
HALLINAN ON HOT SEAT
Next to Chief Sanders and the other nine indicted commanders and officers, the person most on the hot seat as a result of the grand jury's decision is Hallinan, the combative, two-term D.A. who has clashed with Mayor Willie Brown and the SFPD in the past and faces what is expected to be another tough re- election campaign this fall.
One prosecutor in the D.A.'s office said that when a grand jury expands the scope of a prosecution "the big issue is whether there is evidence to support it at trial." If not, the D.A. should dismiss what it can't prove, the prosecutor said.
But "as a practical matter," the prosecutor added, "you made the choice to go to the grand jury, and they decided your case for you."
However, another source familiar with the case said Hallinan became convinced that the grand jury got it right and that the transcript of the proceedings, when it becomes public, will bear him out.
According to the source, the jurors "got a lot more pissed off" about the conduct of the department's command staff than Hallinan himself ever did.
Hallinan had cited the department's alleged failure to thoroughly investigate as his reason for taking the matter to the grand jury.
As an alternative to taking the case to a grand jury, Hallinan simply could have filed criminal charges and taken the case before a judge who would decide at a preliminary hearing whether there was sufficient evidence to place the defendants on trial.
In a preliminary hearing, defense lawyers get the opportunity to cross- examine government witnesses. In a secret grand jury proceeding, no such cross- examination occurs.
POLITICALLY CHARGED CASE
Some legal observers said Hallinan had good reason to employ a grand jury rather than file charges directly in such a politically charged case.
"In political cases, there is a cleansing that goes on when you hand it to a grand jury of citizens and have them decide," San Francisco Public Defender Jeff Adachi said. "Given the fact that prosecutors and police have such a close relationship, it would make sense to have this case go to the grand jury. "
Others questioned whether Hallinan jumped the gun in taking the case to the grand jury, however.
"Terence is a very impulsive guy," said Peter Keane, dean of Golden Gate University School of Law in San Francisco, citing, among other things, scrapes the D.A. has gotten in with San Francisco judges over statements to the press.
"If nothing else, it should be great theater," Keane said. "My first reaction is Hallinan has bitten off a big chunk here, and he better be prepared to chew it and swallow it."
Grand juries have wide authority to act
This is how a criminal county grand jury works in San Francisco:
The grand jury is made up of 19 members from the community and typically meets twice a week for four months. The jurors are chosen by San Francisco's presiding judge. There are three grand juries impaneled a year.
Grand juries go as far back as the Middle Ages. They were used in England to protect citizens from the overreaching authority of the crown.
In San Francisco, 150 people are summoned to duty for each grand jury. Of that number, the judge eliminates anyone with a hardship. Of the remaining prospective jurors, 32 names are randomly pulled from an old iron drum. They are individually questioned by the judge to determine whether they can be objective and impartial. A background check is also conducted to ensure that none of the prospective jurors has a felony conviction. Then the names go back in the drum and 19 are randomly chosen. From that number the judge picks a foreperson.
The grand jury can be used to investigate criminal activity and to issue indictments. It usually hears multiple cases during the four months it is in service and has subpoena power. There must be at least 12 jurors in the room to conduct business. They conduct their business in secret and jurors swear not to discuss their deliberations, even after their service ends, although the transcripts of the deliberations are made public.
Once a prosecutor has brought a case to the jurors, they have far more authority than those hearing a trial. They can grill witnesses, ask for further evidence and conduct their own inquiries.
While no defense attorneys are allowed in the jury room, prosecutors are required by law to not only present damaging evidence but must show anything that is favorable or exculpatory.
It takes 12 jurors, who have heard all the evidence from beginning to end, all to agree before an indictment is issued. The jurors also have the power to indict people other than those brought before the panel.
CHRONOLOGY OF THE CASE
Alex Fagan Jr., Matthew Tonsing, David Lee and more than 100 other off-duty police officers attend a banquet at House of Prime Rib to celebrate the promotion of Fagan's father, Alex Fagan Sr., to assistant chief.
(Times are approximate)
12 a.m.: The banquet breaks up. Fagan Jr., Tonsing and Lee go to the Bus Stop bar on Union Street.
2 a.m.: The three officers leave the Bus Stop. About 100 yards away, Adam Snyder --, a bartender, is closing up at the Blue Light bar. He leaves with his friend Jade Santoro.
2:20 a.m.: Two of the officers allegedly accost Snyder and Santoro on Union Street and demand Santoro's bag of steak fajitas. The third drives up in a pickup truck, and a fight ensues.
2:27 a.m.: Snyder calls 911 on his cell phone. "I need some cops fast," he tells the dispatcher. He later tells the dispatcher, "I just got out of work, and they just started fighting us, over nothing."
2:29 a.m.: Police arrive to find Snyder and Santoro bleeding and their assailants gone. The three officers later return to the scene, but the investigating officers allow them to leave without being questioned, tested for alcohol or having their clothing checked for blood or other evidence.
4 a.m.: Capt. Greg Corrales, Tonsing's and Lee's boss at the Mission District police station, is called to Northern Station, where the three officers had been taken. He arrives 40 minutes later to find the three officers are present but have not been interviewed. He said they appeared to be sober. Corrales summons the supervising lieutenant of the night investigations unit and an internal affairs inspector. That investigator does not arrive at Northern Station until after 5 a.m.
5 a.m.: Santoro, who told police he suffered a broken nose, is released from San Francisco General Hospital after doctors staple closed a gash to his head.
7 a.m.: Investigators take urine samples to test for alcohol from Fagan Jr.,
Tonsing and Lee.
District Attorney Terence Hallinan meets with police officials and declares afterward that "we are upset by the way this investigation has been pursued so far, as are the police officers we spoke with." Police Chief Earl Sanders, who does not attend the meeting, later defends his department and compares critics of the probe to those who vilified Jesus Christ. Mayor Willie Brown suggests the incident was one of "mutual combat."
Corrales calls the accusations against the officers "ludicrous," but concedes that the initial investigation was lax.
Police officials reveal that Fagan Jr. had been ordered to undergo anger management after yelling and cursing at a suspect in September. The training was put off after the Union Street incident.
Police sources say inspectors looking into the initial investigation have been barred from interviewing several officers, examining cell phone records and disciplinary histories.
Police hand over their findings in the case to Hallinan. The district attorney asks for follow-up inquiries.
Jan. 10, 2003
The FBI says it has started a preliminary investigation into potential civil rights violations stemming from incidents of alleged brutality involving Fagan Jr. The district attorney's office is conducting a similar probe. Three men have filed claims with the city alleging Fagan Jr. and other officers roughed them up during arrests.
Lt. Joe Dutto, who had been leading the police investigation, is transferred to the vice squad. Dutto's reaction: "You can read between the lines."
Hallinan blasts Dutto's transfer and says of the SFPD brass, "There's a failure to cooperate here." Dutto says the command staff put obstacles in his way. Police officials insist the transfer was routine and done as part of a larger shakeup.
Hallinan takes case to criminal grand jury, calling the first of what will eventually be more than 40 witnesses.
Memo surfaces from Sgt. Vickie Stansberry, Fagan Jr.'s former supervising sergeant, dating from Sept. 19. In it, she warns superiors that Fagan Jr. was a problem officer prone to clashing with suspects and supervisors alike.
A grand jury returns indictments against Fagan Jr., Tonsing, Lee on assault charges, and seven other members on charges of conspiracy to obstruct justice: Sanders, Fagan Sr., Corrales, Deputy Chief Greg Suhr, Deputy Chief David Robinson, Lt. Ed Cota and Sgt. John Syme.
Chronicle staff writer Suzanne Herel contributed to this report. / E-mail Chuck Finnie at cfinnie@....
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