Seth Rosenfeld, The San Francisco Chronicle
As Earl Sanders rose to become San Francisco’s police chief, he moonlighted as an expert witness for people suing other Bay Area police departments for misconduct, becoming one of the nation’s first cops to make a business of breaking the “code of silence.”
In an interview with The Chronicle, Sanders said his testimony against other cops was part of his fight against police racism and brutality. “It was to change the system. The system was not as good as it should have been,” he said. “Sometimes you have to stand up for what is right. It does not make you very popular.”
But along the way, his private crusade for more professional policing triggered complaints from other officers, courtroom attacks on his credibility as an expert, and a secret 1995 inquiry by his own department into “a possible conflict” between his public and private jobs.
That inquiry produced no charges against him. But public records show he sometimes worked more hours at his outside job than allowed under strict department rules, raising further questions about whether the department consistently disciplines its officers.
Now Sanders’ work as a police expert during his years as an inspector, lieutenant and assistant chief may figure in his fight to restore his reputation and keep his post as chief.
In the past year, Sanders’ department has faced criticism for its handling of officer misconduct cases and the internal investigation of an alleged Nov. 20 assault on two citizens by three off-duty officers over steak fajitas.
Sanders’ indictment for obstructing that inquiry was dismissed in March, but he has asked a court to declare him factually innocent at a hearing scheduled for Wednesday. District Attorney Terence Hallinan declared this week that he would not contest the motion.
Sanders’ lawyer, Phil Ryan, says he will bring up Sanders’ past work as an expert witness to help show he is “one of the most progressive cops in the country.”
BREAKING GROUND
Sanders, 65, joined the force in 1964. Seven years later, he was promoted to the homicide unit. During the next three decades he became renowned as a detective investigating some of the city’s most difficult murder cases.
And by the early 1980s, Sanders was breaking new ground by working as an expert witness through a business he runs from his home called Sanders Security Systems. At a time when it was unusual even for retired cops to testify against other police, Sanders was delivering scathing criticism of fellow officers.
One of his earliest private cases was against Richmond cops known as the “Cowboys.” In 1992, he worked on another case, in which the son of his longtime partner in the homicide unit, Inspector Napoleon Hendrix, sued the Oakland Police Department. Jeffrey Hendrix won a $7,000 judgment against an officer for using excessive force.
Sanders has testified against at least 15 Northern California police departments and the CHP. He never worked as an expert against his own force -- he says that would have been a conflict of interest -- but in the 1970s, he helped lead a group called Officers for Justice in suing his department for discrimination.
By 1994, he had been retained in about 100 private cases. Ninety percent of his cases were against police, Ryan said.
As an expert, Sanders reviewed police reports and policies, depositions of plaintiffs, officers and witnesses, and rendered opinions on whether and how the police misbehaved. He earned up to $75 an hour for reviewing records, court records show, and up to $200 an hour for testifying.
IMPRESSIVE FIGURE
Sanders cut an impressive figure in court, dressing in stylish suits like those he wore when stalking killers on the streets. State and federal judges accepted him as an expert on some aspects of police work, including investigations, the use of force and general police practices, Ryan said.
But Sanders’ role as an expert witness disturbed some officers and their lawyers, who contend he molded his testimony to fit his clients’ cases.
“His opinions were not always fact-based,” said Gregory Fox, a San Francisco attorney who has defended police in civil suits. “He gave testimony that was fairly incredible.”
“Earl wouldn’t do that,” said Howard Moore Jr., an Oakland civil rights lawyer who employed Sanders. “He doesn’t need the money. He’s really dedicated to the profession. He’s an advocate for police becoming professional.”
James Chanin, a Berkeley civil rights lawyer who also retained Sanders, said Sanders had turned down cases when he thought the police had acted properly.
“He would basically call them as he saw them. He wasn’t afraid to say when police committed excessive force. He did not go with the code of silence,” Chanin said.
CREDIBILITY CHALLENGED
Sanders attacked what he called shoddy investigations, unnecessary force against citizens and the common police tactic of using traffic stops to search for evidence of serious crimes.
Yet he sometimes encountered cross-examination that challenged not only his expert opinions, but also his credibility.
In 1991, he testified for James and Valerie Gilhooly and their son Charles, who had filed a multimillion-dollar civil rights lawsuit claiming Walnut Creek police officers falsely arrested and beat them.
Sanders blamed the fracas on the police, saying their arrest plan was “very unprofessional.”
“This entire situation was precipitated by inappropriate action by the officers, and that inappropriate action led to other inappropriate actions and it just continued to deteriorate. And I thought their training and arrest procedure was absolutely abominable,” he testified.
But on cross-examination, Sanders acknowledged that neither James nor Charles Gilhooly had the right to physically interfere with the arrest.
“I think to the letter of the law, you do not have the right to physically attack the officer and not go to the arrest,” Sanders said. “But . . . I hold the officer at a higher level of responsibility than I do the citizen, because the officer is the professional.”
The jury concluded that the police did not use excessive force, and that Charles and James Gilhooly either struck an officer, tried to flee or resisted arrest. The court found that the police falsely arrested Charles Gilhooly and awarded him $5,000 for false arrest.
In 1994, Sanders was an expert witness for Abaz Mwangi Bey, the stepson of prominent black Muslim businessman Yusuf Bey.
Bey filed a civil rights suit against Richmond officers who were on narcotics duty and stopped him for not having a front license plate. He claimed officers assaulted him and called him a racial epithet. No drugs were found.
Sanders testified that the police had no probable cause to arrest Bey and used excessive force against him. He also criticized the police practice of stopping drivers for traffic infractions, like a missing license plate or broken taillight.
“Those are the stretching kinds of infractions that you use to detain people when you have some other motive in mind,” Sanders said. “It is a common practice among some police officers.”
He later conceded it was lawful for officers to stop drivers for such infractions and to make arrests if they saw evidence of other crimes. But he said such traffic stops “do more harm . . . to citizen relations and interactions with officers than anything that I can think of.”
The jury ruled in favor of the police in 1994.
JUGGLING DUTIES
That year, Sanders worked on average 18 hours of police overtime each week on top of his regular 40 hours, according to payroll records, and during the Bey case he was asked how he juggled his time-consuming city work and his private job.
“There are times (at the police department) when I have a great deal of time, when I’m not working on an active case, and I pick up off-days that I’ve earned and what we call compensation time that I’m allowed to take,” he testified.
“I devote probably 20, sometimes between 20 and 30 hours a week to my, you might say my extra job,” he testified, ". . . but normally not more than 20 hours or so a week.”
A long-standing department order restricts private work to 20 hours per week. “A request for secondary employment shall be disapproved and an approved request shall be revoked” when “the secondary employment is for more than twenty (20) hours in any week,” it says.
‘TREMENDOUS INTEGRITY’
Then-Chief Anthony Ribera said in a recent interview that he had no idea whether Sanders had ever exceeded the limit. “I would be very surprised if he was doing 20 to 30 hours per week in secondary employment,” Ribera said. “He has tremendous integrity and work ethics.”
Ryan, Sanders’ attorney, asserted that Sanders was not subject to the department rule on secondary employment on the ground that he worked as an independent contractor, not as an employee.
But officials at both the police department’s legal office and the city attorney’s office said the rule has always applied to any kind of paid outside work.
“They don’t treat employees any differently than they treat independent contractors or business owners,” said Deputy City Attorney Buck Delventhal.
In a later interview, Ryan claimed that “the 20-hour-a-week rule has never been invoked against any police officer in his 39 years in the department, and certainly has never been invoked against Sanders. Often officers will work more than 20 hours in a particular week and then not at all the next week.”
In early 1995, the San Francisco Police Department began an internal inquiry into “a possible conflict” between Sanders’ “secondary employment as an expert witness and his primary employment with the City and County of San Francisco,” according to a document obtained by The Chronicle.
In an interview, Sanders said officers from the department’s Management Control Division formally questioned him about his whereabouts on 11 dates to see whether he was doing his private job on city time. But after he produced time cards showing he had done his expert work on compensatory time and vacation, he said, the inquiry was dropped.
“I told them I wouldn’t be stupid enough to do anything like that. I have plenty of time on the book. That would be dishonest,” he said.
‘RUSHED TO JUDGMENT’
After the inquiry in 1995, Sanders testified on behalf of Scott Wiley, a 25- year-old former bowling alley attendant who had filed a $2.5 million civil suit claiming Fairfield police beat him and violated his civil rights.
During cross-examination at the trial, Sanders admitted having concluded -- even before he’d read a witness’ testimony -- that the police had used excessive force and hit Wiley with a baton.
“You rushed to judgment without obtaining an independent eyewitness’ statement. You decided that (the officer) had hit Mr. Wiley with a baton, is that true?” asked police lawyer Gregory Fox.
“Yes,” Sanders said.
“Doesn’t that contravene everything you have ever been taught as a homicide inspector?” asked Fox.
No, said Sanders, adding that he had later read the witness’ statement, and it did not change his opinion.
The jury ruled for the police.
Afterward, Fairfield Lt. Terry Thomas, who had been a defendant in the case,
sent Chief Ribera a letter saying he considered Sanders’ testimony outlandish.
“I certainly wouldn’t call him an expert,” said the now-retired Thomas in an interview. “When you make up stuff to sway the jury, I have no respect for that. Justice is not served when you have people doing that.”
Ribera said he did not recall the letter.
In 1996, Fred Lau became chief and Sanders became assistant chief. Lau said he felt Sanders’ outside work would conflict with his duties as second in command. “I requested that he stop his secondary employment when we worked together,” Lau said in a recent interview.
But Sanders said both Lau and Mayor Willie Brown told him he could complete “several” expert witness cases he’d begun before becoming assistant chief. Sanders said he kept a promise to take no new cases.
“It was agreed that was OK,” said Sanders, adding that he has done no expert witness work since he became chief in August 2002. “I wasn’t doing anything illegal, immoral or fattening.”
Brown declined to comment on the matter.
Financial disclosure statements show Sanders received between $1,001 and $10,000 annually from Sanders Security Systems between 1996 and 2002.
Ryan said the money received in 2002 was for the sale of rights to a movie about Sanders’ efforts during the ‘70s to simultaneously integrate the police department while solving the “Zebra” murders, in which four black Muslims randomly shot and killed 14 white people.
Court records show Sanders testified in at least two cases while he was assistant chief.
In 1996, he testified in a case accusing BART police of misconduct that resulted in a $1.4 million verdict against BART.
In 1997 and 2000, he was an expert witness for two women who claimed that poor security at the shop where they worked at Livermore’s Peppertree Plaza mall had contributed to their being sexually assaulted there in 1992.
During the mall case, Sanders testified that he held one state license as a private investigator and another for private security work. But both licenses had expired, according to state records, one of them years earlier.
Sanders also testified that three months after the assault he took photos showing that trees obscured security lights.
But on cross-examination, a lawyer pointed out that the license plate numbers of cars visible when the photos were magnified had not been issued until five years after the assault.
“That really didn’t have a whole lot to do with the incident, but it had a whole lot to do with his credibility,” said Kenneth Ward, one of the lawyers. “I think it was just a little sloppiness on his part.”
In an interview, Sanders said he had confused two sets of photos but the mix-up was sorted out in later testimony. He also said he wasn’t required to have the state licenses to work as an expert.
The jury ruled in favor of the women. Said Sanders, “That case made malls safer for people.”