By Erin Sherbert
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By Leif Haven
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A Mojave heat wave is bearing down in City College's Studio A, where Supervisor Terence Hallinan and former Deputy District Attorney Bill Fazio are debating their respective qualifications to serve as district attorney of San Francisco. But the desert blast this Nov. 20 has more to do with the white-hot video arc-lighting than with any friction between Fazio and Hallinan.
Incumbent Arlo Smith was ousted in the Nov. 7 general election, his votes siphoned off from both ends of the political spectrum by Hallinan -- the archliberal, ex-criminal defense attorney -- and Fazio -- the hard-nosed, ex-homicide prosecutor. They will meet in a runoff Dec. 12.
Twenty minutes into the televised debate, moderator John Irwin -- a retired San Francisco State sociologist -- pitches a question that seems sure to bring out the candidates' true colors.
"How would you implement the 'Three Strikes, You're Out' law?"
As supervisor, Hallinan has fought to curb enforcement of Three Strikes in the city. So his answer is predictable enough.
"To my mind [enforcement of Three Strikes] should be severely limited." Arlo Smith's policy, says Hallinan, was to charge felonies under Three Strikes even where the suspect's third offense was a nonviolent crime. Suspects convicted under Three Strikes face sentences of 25 years to life.
Hallinan says he would follow the lead of Alameda County DA Tom Orloff, who uses a committee to scrutinize a suspect's prior convictions before deciding whether a Three Strikes charge is warranted. The law should be brought out "only in the cases where a person is really a serious threat to public safety."
Irwin turns to his right and asks: "Mr. Fazio, how do you feel about this law?"
You might think a man who has prosecuted more than his share of repeat offenders -- and who has a lock on endorsements from San Francisco's law enforcement community -- would give a predictably different answer.
"The DA's Office should have and does, in fact, have the discretion to decide what Three Strikes [cases] they're going to charge," Fazio says. "That discretion, in my administration, would be limited to those violent felonies. ... I don't think the supervisor and I disagree much on the application of Three Strikes."
The runoff election for San Francisco district attorney was supposed to present voters with a rare contest between sharply contrasted liberal and conservative candidates.
"We really have a bona fide choice in this race in defining what we in San Francisco want, in defining what our community values are in terms of how our law is enforced," says criminal law professor Terry Diggs, echoing a perception widely held in the political firmament of the city.
But as Election Day nears, the race is more striking for the philosophical harmonies the candidates are intoning.
If anything, Hallinan and Fazio have run out of things to agree on. Besides their concord on Three Strikes, they see almost eye to eye on prosecuting violent crime (both say it's the top priority), enforcing drug and prostitution laws (by citation, rather than by imprisonment), and restructuring the top-heavy district attorney's staff (forcing floor-rooted bureaucrats to try more cases). Where they diverge, it is in the nuances rather than the fundamentals.
So with the race a dead heat -- according to a recent poll from Willie Brown's campaign -- the subject matter has shifted from philosophical niggling to mudslinging.
The San Francisco Examiner last week published a lengthy article charging that Fazio bungled prosecution of the high-profile 1990 murder trial of Giovanni Toracca, who shot Francesco Tarsitano, a reputed drug trafficker, outside a North Beach restaurant. Fazio allegedly failed to offer wire-tap testimony he had obtained from U.S. government investigators implicating Toracca, who was acquitted, in drug trafficking. Had the evidence been introduced, the Examiner reported, Toracca's credibility might have been undermined and he might have been convicted. (Fazio denies mishandling the Toracca case.)
Though the charges grabbed front-page headlines, they seem to be little more than election-eve trinkets that will be forgotten after Election Day.
In the meantime, the question remains: What happened to the great philosophical divide that was supposed to distinguish Fazio and Hallinan and give voters that "definite ideological choice" at the polls?
The answer is that both men suffer serious liabilities as candidates for district attorney that have compelled them to play crossover politics in a bid for votes from their opponent's back benches.
Running against a liberal of unimpeachable credentials, Fazio has had to shrug off his type-casting as a law-and-order hard-liner to appeal to San Francisco's broad progressive left. That's no easy task for a first-time candidate with little besides a record of successfully prosecuting criminals to run on.
And yet Fazio's rookie status -- and his political profile chiseled out of professional experience, rather than partisan proclivity -- has given him lots of wiggle room to court all corners of the political spectrum with more credibility than a well-known conservative might enjoy.