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Ethics of S.F. Charges Questioned

D.A. had told grand jurors he didn't want indictments against police chief, six others.

March 07, 2003|Tim Reiterman, John M. Glionna and Maura Dolan | Times Staff Writers

San Francisco Dist. Atty. Terence Hallinan is pressing criminal conspiracy charges against the city's police chief and six police commanders even though records show he personally told a grand jury there was not enough evidence to indict them.

During closing statements to grand jurors, Hallinan and Deputy Dist. Atty. Al Murray said they were not seeking any charges related to the alleged cover-up of a street brawl involving three off-duty officers, according to grand jury transcripts.

The indictments a week ago of Police Chief Earl Sanders and nine others have thrown the city government into turmoil.

Legal experts say it would be improper, even unethical, for the D.A. to move forward with charges if he believed they might not stand up in court.

The Times reviewed only non-evidentiary portions of the more than 1,300-page transcript, compiled during 11 days of hearings. The newspaper did not have access to other evidence and exhibits.

Hallinan would not comment Thursday on the transcripts, which remain under seal.

His spokesman, Mark MacNamara, said the district attorney was concerned that reading selected portions of the grand jury proceedings would not fully reflect the evidence in the case.

"He is perturbed by the impression that this case is the sum of the leaks rather than the entire testimony going to the grand jury," MacNamara said.

The transcripts show that on the last day of the grand jury's review, Murray told the panel: "At this time we are not satisfied that we can sustain the requisite burden of proof with respect to the conspiracy allegation. And so we will not be asking you for a determination with respect to conspiracy."

Later, the veteran prosecutor added: "It will not be your chore to consider the facts that we developed with respect to the conduct of the investigation" that the Police Department did of the brawl "or the investigators."

During the summation, top prosecutor Hallinan endorsed Murray's assessment of the case. "We have chosen not to submit the request for an indictment on the obstruction charges in this case," he said. Prosecutors, he explained, had not "had the opportunity to find who agreed with who to do what."

The D.A.'s statements before the grand jury appear to contradict comments he has made since the indictments became public one week ago. Hallinan has repeatedly said that when the grand jury transcripts are released, "everyone will understand" why his office is prosecuting the chief and his top lieutenants, including the No. 2 official in the department. He has also dismissed suggestions that he or his deputy prosecutor lost control of the grand jurors.

While a judge has ordered that the grand jury transcripts remain temporarily under seal, the court has released copies of the documents to attorneys representing the 10 indicted officers.

It is unclear why the grand jury, after hearing concluding statements from Hallinan and Murray, went ahead and indicted Sanders and the command staff. The jury forewoman declined comment, saying the district attorney's office advised her not to speak about the case.

Hallinan's exchange with the grand jury took place just hours before the panel returned its indictments on the evening of Feb. 27. The following morning, news broke that the grand jury had indicted the 65-year-old Sanders and six other officers for conspiracy to obstruct justice. Also charged, with a variety of assault and battery counts, were the three off-duty officers involved in the Nov. 20 street brawl outside a bar.

Even after the grand jury handed down its judgment, the district attorney was under no obligation to sign the indictments or to file them with the court, legal experts said. In fact, experts said, ethical guidelines require a prosecutor not to pursue a case unless he believes there is probable cause -- a strong suspicion -- to believe that the suspects are guilty.

"Why did the D.A. sign the indictment if they didn't believe in the indictment?" asked Loyola Law School professor Laurie Levenson, a former assistant federal prosecutor. The prosecutors, she added, could have asked a judge to dismiss the indictments. "The prosecutors' hands were not tied," Levenson added.

Peter Keane, dean of the Golden Gate School of Law, agreed. "It is unethical and a violation of the rules of professional conduct for a prosecutor to go ahead and proceed with the prosecution unless he feels an absolute certainty that the evidence is there," he said.

The Rules of Professional Conduct of the State Bar of California say prosecutors should not initiate charges not supported by probable cause. American Bar Assn. rules go further, declaring a prosecutor should not pursue criminal charges when there is insufficient admissible evidence.

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