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S.F. Cop Says Probe Hindered

Brass put up 'blockades' to his inquiry into the aftermath of a brawl involving three officers, the lieutenant told grand jurors.

March 16, 2003|Tim Reiterman, Rone Tempest and Carol Pogash | Special to The Times

SAN FRANCISCO — While top police officials blame an overzealous district attorney for the crisis in the city's Police Department, grand jury transcripts show that a police lieutenant made the most damning indictment of the department's behavior after a street brawl involving three off-duty officers.

Joseph Dutto, a by-the-book lieutenant who supervised the investigation, said he feared interference from the outset, because one of the officers was the son of the department's No. 2 man. And Dutto said higher-ups presented him with "blockades" after he began investigating the department's probe of the case.

The investigation "has been totally hindered," Dutto said in grand jury testimony obtained Saturday by The Times. At one point, his requests for police cell phone records and computer text messages were placed on hold, he said.

Despite that meddling by police brass, Dutto told the jury, he eventually was able to get most of the information he sought and to build a case against the three officers accused of attacking two men to get their bag of fajitas.

The grand jury indicted the three rookie officers implicated in the Nov. 20 fight and charged Police Chief Earl Sanders and six supervisors with conspiracy to obstruct justice. Just days after Sanders and Assistant Chief Alex Fagan Sr. were indicted, Dist. Atty. Terence Hallinan moved to dismiss the charges.

The transcript provides details about a case that has damaged the reputation of the 2,350-member Police Department and has tarnished the careers of some of its senior leaders. Some of those details:

* During the fight, an alleged victim said, one of the officers used an anti-gay epithet after accosting him and a companion.

* Police at first failed to collect as evidence a beer bottle allegedly used by one of the combatants as a weapon.

* The officers were later allowed to stay together and use their cell phones after being detained.

* There was no sobriety test by criminal investigators. In what was described as a slip-up, a criminal investigator arrived to speak with the officers, but they had been taken away for an Internal Affairs sobriety test.

* The clothing the officers wore was not collected immediately.

"You do not have to convince me that this process was not perfect," said Police Officers Assn. President Chris Cunnie. "But you will never convince me that the acts amounted to conspiracy or felonious obstruction of justice."

Sanders is rarely mentioned in the transcript, and his only overt act was to agree to Dutto's transfer in mid-January. Fagan, who was indicted, testified that he recommended against the transfer of Dutto.

The 19-member grand jury heard testimony from 42 witnesses. Several were command staff members who were indicted. Notably absent from the roster of witnesses was Sanders. His attorney, Philip Ryan, said that had the chief been afforded an opportunity to testify, there might well have been no conspiracy indictments against the Sanders and others.

The chief has said he twice met with Hallinan to discuss the department's inquiry and once offered to let the D.A.'s office take it over if Hallinan was unhappy with the police probe.

The 1,300-page transcript contains a welter of material related to the fight and the initial hours of investigation.

Although Hallinan has said that "the case was not handled as an ordinary crime scene," the police chief has said the investigation was conducted honestly and according to procedures.

For hours after the incident, police treated it as a case of "mutual combat" or possibly even assault on the off-duty officers by the men who called 911.

Lt. Edmund J. Cota, the shift commander at the nearby Northern Station, told the grand jury: "From my perspective, it had been kind of a mutual combat. We have [one of the officers] saying he got Sunday-punched."

Cota also said he received a phone call from Assistant Chief Fagan the morning of the brawl.

Q: "Did chief Fagan in that conversation suggest to you anything about what you should do or how you should handle the case or any of the officers?"

A: "No. He asked my opinion about something.... He asked if I thought he ought to come in.... I said, 'I think this is one you want to step away from as the chief but not as the father.' "

When Dutto was put in charge of the investigation that morning, he said, he heard that his superiors were not happy with the investigation done on the night shift, and he hoped that department brass would not put "undue pressure" on him and two investigators he assigned to the case.

He testified that he found deficiencies in the probe: No independent witnesses had been found at the scene, so the area needed to be canvassed. And he found that the officers were not subjected to a street-side lineup, although the alleged victims had pointed the officers out as they passed by in a pickup.

Two of his superiors echoed some of his concerns.

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