Cothran

Prosecutorial Impunity
By any reasonable standard, District Attorney Terence Hallinan should be facing a healthy field of challengers as he prepares for his re-election campaign this year. For the three years and three months he has been in office, Hallinan has screwed up so severely, so often, and on so many levels that he should be considered the classic vulnerable candidate.

To name a few of our bungling DA's blunders: He jeopardized a gangland murder prosecution by making idiotic statements to the press, leading a judge to remove his office from the case. He settled the biggest criminal pollution case in city history for an infinitesimal fraction of the potential fines and cleanup costs, because he and his handpicked chief deputy didn't understand the law. He's tangled with judges and the police chief in debilitating and useless fights, showing himself to be an injudicious hothead. On three occasions he's unethically attempted to discuss cases with judges outside the presence of opposing counsel.

But Hallinan's worst problem involves high-stakes cases brought by his office. They keep falling apart, and they fall apart in ways that lead one to a troubling conclusion: Either the DA's Office prosecuted the wrong people, and let the bad guys get away, or the DA's Office blew a righteous case, and let the bad guys get away. Either way, bad guys keep getting away:

* The biggest police corruption case in recent city history -- brought against three narcotics officers, one caught on videotape taking money -- ended in acquittals for all three defendants.

* A murder-conspiracy case filed against a family of Gypsies accused of poisoning and bilking elderly loners seems hopelessly lost, now that a judge has dismissed the most important charges in the indictment.

* And just recently, a case that accused a pastor of defrauding his parishioners fell into tiny pieces after the prosecution was revealed to be baseless, and the investigation that spawned it to be seriously flawed and politically motivated.

Overall, the District Attorney's Office's record on convictions is dismal. Line prosecutors tell me the office is a public defender's dream. "We give away the store every day," one prosecutor said recently.

Public Defender Jeff Brown grew so concerned with the sad state of the DA's Office he briefly considered running against Hallinan. Think about that for a second: A man who has dedicated 27 years in public office to getting criminals out of trouble was so concerned with the quality of law enforcement in San Francisco that he considered taking Hallinan on.

Sounds bad, right? Well, then why is Hallinan poised to skate back into office next January untouched?

Potentially formidable opponents, including Brown and former prosecutor Katherine Feinstein, daughter of Sen. Dianne Feinstein, all have backed away from the race. Former prosecutor turned defense attorney Bill Fazio, who lost to Hallinan by a few percentage points in 1995, is still playing Hamlet, pondering the possibility of running.

As it stands, Hallinan's only declared opponent is Matt Gonzalez, a 33-year-old deputy public defender, who, while an interesting and intelligent fellow, hasn't a snowball's chance in San Diego of winning.

The reason for Hallinan's good political fortune can be found in a remark he made to Fazio during the 1995 campaign: "Bill, you may be a better lawyer than me, but I am a better politician."

Hallinan has a political edge for two basic reasons: 1) He has created and maintained a charming image as a feisty former boxer standing up for radical-left notions of criminal justice -- an image that, if utter nonsense, is effective in the popularity-contest part of a political campaign. 2) His political supporters include the meanest, nastiest thugs who have ever strode the local political stage.

Terence Hallinan has an image that San Francisco voters lap up like mother's milk. They don't see a guy who has tanked murder, police corruption, and pollution cases. They don't see a guy who has had reckless ex parte communications with judges. Hell, most voters don't even know what that Latin term means. They see a guy who promotes their liberal views of law enforcement.

Diversion programs for drug offenders go over very well in a town outraged by the so-called War on Drugs. Diversion programs for prostitutes and johns go over even better in a town that simply loves its whores.

And Terry Hallinan is hell on wheels when it comes to diversion over incarceration.

Hallinan's image makes liberal voters feel good. They vote for him, and walk away proud that they are rebelling against traditional notions of law enforcement. Who cares about prosecutorial efficacy, legal acumen, sound judgment, or convicting criminals, when San Francisco has an opportunity to further gild its anarchistic rep?

A formidable opponent could alter the image of Terence Hallinan through the careful application of fact. Easily. That's why I think it's the second part of Hallinan's political arsenal -- the thugs whom I call the "unholy triumvirate" -- that has cleared the electoral field for this otherwise-stumbling DA.

These three thugs are:
Ted Fang, the publisher of the San Francisco Independent, who worked on Hallinan's 1995 campaign at the same time his newspaper was smearing Fazio with false allegations of underworld ties that tripped well over the bounds of journalistic and human decency into anti-Italian bigotry.

Warren Hinckle, the Independent's columnist, a master of the scurrilous hit piece, a man with no shame, a huge appetite for ugly political warfare, and little apparent regard for facts.

Jack Davis, the most feared political consultant in San Francisco, a man politicians hire just so he won't oppose them.

These men, it seems, will do anything, say anything, print anything, sink to any depth to support their man. And Hallinan knows this has been, and will be, their approach. He applauds it. They are his insurance policy.

Anyone who has considered running against Hallinan has had to wonder: How badly do I want the job? Badly enough to be falsely accused of everything and anything? Badly enough to have my family and friends fried on the altar of my political ambitions?

The most formidable challenger Hallinan could have faced is Katherine Feinstein. A former prosecutor who now heads up the City Attorney's child welfare unit, Feinstein, an assistant district attorney during the 1980s, is highly regarded for her smarts, her fairness, and her refusal to trade on her famous mother's name.

Feinstein could well have beaten Hallinan, but after months of considering a bid, she declined to run, citing the "cesspool" of political campaigns. The cesspool remark could have referred to her experience working on her mother's trying campaigns against Pete Wilson and Michael Huffington.

But the younger Feinstein could also have been referring to the treatment Fazio received at the hands of Hallinan cronies in 1995. And similar treatment she might have received at the hands of the unholy three.

Sources have told me that the minute Feinstein's name was floated as a potential candidate, Hallinan's camp floated their own trial balloon: They let it be known that if Feinstein ran, her husband, a graduate of the Delancey Street drug and alcohol rehabilitation program, would have his name dragged through the mud. A lawyer close to Feinstein said this was one of the factors in her decision not to run.

"People know the kind of hardball Terence will play," says Randy Knox, a former San Francisco prosecutor turned defense attorney who advised Fazio's campaign in 1995. Then he amplifies by explaining exactly what kind of hardball that is:

"They all remember the Fazio-Mafia thing," he says.
It's an ugly thing to remember.

The Independent ran a series of stories on the eve of the last election. The stories seized on routine conduct by Fazio while an assistant district attorney and twisted that conduct into concocted, totally unsubstantiated allegations that he had engaged in serious misconduct and consorted with criminals.

The series, titled "Tainted Prosecutor?" began with a screaming headline: "D.A. candidate's underworld ties."

The story simply didn't -- and doesn't -- stand up to scrutiny. The paper alleged that Fazio had a significant and questionable relationship with a convicted drug dealer, Victoria Magana. This was simply not true. What was true (but got buried deep in the story) was that Fazio prosecuted a kidnapping case. Victoria Magana's sister was the victim of the kidnapping; Magana was a witness in the case. So, of course, Fazio had to talk to the witness.

That was the extent of the relationship.
Next, Fazio's work on a 1990 murder trial was used to heavily suggest he had mob ties.

Fazio prosecuted Giovanni Toracca, a North Beach club owner accused of murdering a neighborhood restaurateur. Toracca had never been convicted of a crime. But because he had been investigated by the FBI twice for drug dealing and had his house briefly confiscated by the feds as part of those probes, the Independent called him an "underworld figure." (Read: mob.)

Fazio was accused of arranging extraordinarily low bail for this "underworld figure" -- a really not very low $250,000 -- and improperly deciding not to retry the case when a jury deadlocked on the charges. But both those decisions were made by Fazio's superiors -- superiors who were feeding false information to the Independent.

The Independent went further afield and well beyond the journalistic boundaries, using campaign contributions from businesses and individuals with really quite tangential ties to Toracca to suggest that Fazio had been rewarded for tanking a murder case that his superiors had agreed to plea bargain.

The newspaper ran a graphic with Fazio's picture in the middle, connecting him to a list of Italian-American nightclub owners. The Independent chart even connected Fazio to the Medellin cocaine cartel.

Other horribly distorted case histories followed. By election day, Fazio had been linked in many minds with illegal activity and organized crime, even though no such link had actually been demonstrated.

Fang and Hallinan got one thing they wanted: a narrow victory. They also sent a message to local pols that still reverberates today.

The Independent's "stories" shocked San Francisco's political elite. A worried Jeff Brown took me aside at the time and said, "My big question is: If the Independent can run stories like that with impunity, where are the political careers of the rest of us? We are all at the whim of their retribution."

Last week, he revisited the issue when discussing his decision not to run against Hallinan this year. "Who wants to wake up in the morning and read your name in the Independent connected to all sorts of nefarious deeds?"

In 1995, Jack Davis and Warren Hinckle spent the balance of their time working on or for Willie Brown's mayoral campaign. They were not involved in the smear campaign against Fazio. But both men are tireless, no-holds-barred political fighters who are also close friends and confidants of the district attorney. I don't doubt they've been a factor in discouraging potential opponents.

As Hallinan cranks up his campaign machine, you'll hear lots of stuff about how he has aggressively pursued crimes against women; how he has made domestic violence cases a priority. How he has decriminalized low-level narcotics cases. All of it will be true. And, to a degree, worthy of praise.

But these easily achieved ends have to be placed in a larger context. His easy liberalism has to be balanced against his constantly rotten judgment and inexperience in criminal law -- as well as the tactics he allows his friends to employ in order to protect him.

After that, I believe the choice is clear.
Oh, wait, I forgot. We don't really have a choice.

George Cothran (gcothran@sfweekly.com) can be reached at SF Weekly, 185 Berry, Suite 3800, San Francisco,

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