Grand jury weighed contradictory testimony
By Jim Herron Zamora, Patrick Hoge, The San Francisco Chronicle
Some testified the off-duty cops were drunk, others said they appeared sober. Some said the probe was by the book, others said the cops got a break. Some insisted the top officials kept their hands off the case, others saw their fingerprints everywhere.
The 19-member San Francisco grand jury heard numerous contradictions from 42 witnesses. Those and many small, damning details about the investigation of a Nov. 20 assualt by several off duty officers apparently led jurors to conclude that there was a conspiracy at the highest levels to protect the son of the assistant chief and two other off-duty cops accused of beating up two men over a bag of fajitas.
The 1,350-page grand jury transcript released Friday shows that from the beginning there were myriad small, yet significant ways in which the department handled the case differently from that of a simple assault.
WHAT TRANSCRIPT REVEALS
According to testimony:
-- Now-indicted Deputy Chief Greg Suhr did an end run around the chain of command, and contacted one of the two inspectors on the case, demanding information about his investigation. Inspector Joseph Pieralde replied that Suhr should go through his boss, Lt. Joe Dutto. But Suhr ordered Pieralde to talk to him and keep it secret from the lieutenant, according to Dutto. Pieralde did not testify before the grand jury.
-- Capt. Greg Corrales testified that none of the off-duty cops on Union appeared to have been drinking. Three other veteran officers said the off-duty cops appeared to have been under the influence. Two off-duty cops also admitted drinking.
-- The Police Department’s internal affairs unit, which investigates police misconduct separately from criminal probes, wasn’t notified until more than two hours after the three off-duty officers were detained.
-- Deputy Chief David Robinson testified that he had no problem with Capt. Marsha Ashe’s decision to transfer the case from night investigations to the general work detail, which Dutto commanded. But Ashe testified that Robinson had criticized her decision.
Though prosecutors said they believed they could not prove that senior police administrators had engaged in a conspiracy to protect the off-duty cops,
jurors ignored the warnings and pushed ahead with indictments.
“It wasn’t a smoking gun,” said District Attorney Terence Hallinan after a judge ordered the transcript unsealed. “You really have to see the whole transcript to understand the pieces of the puzzle.”
Hallinan quickly dropped coverup charges against Chief Earl Sanders and Assistant Chief Alex Fagan Sr. but is still prosecuting two deputy chiefs, a captain, a lieutenant and sergeant for conspiracy along with charging Fagan’s son and two other young cops for assault.
From the beginning, the three police officers accused of assault -- David Lee, Matthew Tonsing and Alex Fagan Jr. -- were treated in a manner unusual for possible criminal suspects.
In response to questions about why officers at the scene did not keep their squad car lights on after stopping Lee’s truck, Robinson acknowledged that the off-duty officers were not considered a threat. “So, yes, they did treat them different than some unknown who may have had a warrant in Kentucky, for a murder. . . . That is human nature.”
Robinson also said Dutto’s transfer to the vice unit was simply to take advantage of the lieutenant’s “organizational skills.”
But in the same testimony, Robinson criticized the Union Street investigation, saying the lieutenant appeared to be “overly involved, personally involved and not as a supervisor but as an investigator.”
Officers from the Northern District police station allowed the three men to keep talking together privately and to make calls on their cell phones. They also detailed an officer to chauffeur them to the station in Lee’s truck.
Typically, arrestees are separated so that each can be questioned individually. Officers are obligated to allow a suspect to contact an attorney,
but investigators in felony cases usually limit a suspect to one call. Officers making an arrest -- even in minor cases -- virtually always handcuff suspects and transport them in police vehicles.
In this case, the investigating officers maintained that the off-duty cops were not suspects and had not been taken into custody. Officers at the scene said they did not know who the aggressors were.
Sgt. John Syme testified the investigation was more intense than usual for such a case.
". . . Because of the people that were involved as being off-duty police officers and the use of alcohol, it was prudent and necessary . . . to make sure that an entire investigation was made into this.”
The three officers, however, did not give a urine test for possible alcohol consumption for more than four hours.
Capt. Dan Lawson encountered them at the Northern Police Station.
“The room smelled of alcohol and all three appeared, based upon my experience and observing people, under the influence of alcohol,” said Lawson, who was the supervisor of Fagan Jr. “They had bloodshot eyes, looked a little disheveled in regards to clothing, speech appeared to be a little slurred.”
The transcript also shows that the officers who were at the scene at about 2:30 a.m. did not call internal affairs until nearly 5 a.m.
INTERNAL AFFAIRS CONTACTED
The first person to contact internal affairs was Sgt. John Fewer, who was working that night at a different station in Golden Gate Park and was otherwise unconnected to the case.
Fewer testified that Lt. Ed Cota became angry upon learning internal affairs had been called.
Cota “wanted to know by whose authority or what right did I have to call Hal Butler, and the last words out of his mouth before he slammed down the phone were: “ ‘Now it is all f-- up,’ ” Fewer testified.
Judge Kay Tsenin ordered certain sections of the transcript withheld from the public. Much of that testimony dealt with a conversation that Fewer had with internal affairs Sgt. Jerry Senkir. One key passage, however, remained.
Asked by prosecutor Al Murray: “Did you report to either or both Fagan or Chief Sanders that Sgt. Fewer commented to you words to the effect that ‘They are already trying to cover it up.’ ”
Senkir replied: “I did.”