James McBride showed police deep scratch marks on his back, which he said were from the April 23 incident. Elaine McBride exhibited a bruise on her hand and one on her upper chest from the May 1 incident.
That was it. No fat lips. No broken bones. No black eyes. No blood. No serious violence. Even one high-ranking source in the DA's Office told me, "This appears to be a relatively minor confrontation."
How the "relatively minor" McBride scuffle went from misdemeanor citation to multiple domestic violence counts is a story of how politics can confuse criminal justice. And not just Hallinan is to blame. Seems everyone in the system gave James McBride "special" treatment -- and not the kind he could have ever wanted.
After Fazio left the McBride house, one of the responding officers called the station house to let his superiors know about the situation. When Lt. David Oberhoffer found out that one of the combatants was a superior court judge, he immediately told the patrol officers to bring both McBrides to the station.
He also immediately called the domestic violence inspectors at the Hall of Justice. Oberhoffer said the call to the inspectors was mandated by department general orders, since a prominent person was in custody.
"Normally a minor scuffle like this would have been handled entirely by the beat cops," says SFPD spokesman Officer Sherman Ackerson.
Once the domestic violence inspectors found out they had a judge on the hook, they called their higher-ups in the Police Department and the District Attorney's Office.
Normally, the DA's Office is not called into a case prior to the decision to arrest and book. Clarence Johnson, the spokesperson for the DA's Office, says prosecutors were not involved in the decision to arrest James McBride, and to begin viewing Elaine McBride as a victim rather than a combatant.
But Oberhoffer told me the inspectors were in constant contact with the DA's Office. At the very least the DA's unusually early involvement in the case raises a question about whether it was the cops or the DA's Office that made the decision that James McBride was the bad guy.
Even if Hallinan's office wasn't involved in the decision to arrest and book McBride, prosecutors certainly decided to keep the case alive and pursue charges, despite evidence that it was not an instance of one-sided violence but rather a mutual combat situation. They formed the last link in the chain of "special" treatment McBride received. And if the cops were acting out of fear of the appearance of impropriety, the decision by the DA to charge the case could have easily been more personal. More political.
At the very least, Hallinan should have withheld charges until an investigation determined the exact nature of the two scuffles. (Was Elaine McBride equally to blame?)
But, it seems, the temptation to score political points -- on McBride and Fazio -- may have been too strong.
McBride is one of many judges -- Republican William Cahill and liberal Democrat Ellen Chaitin are two others -- who have been disgusted with the amateurish behavior of Hallinan and his deputies in court. Hallinan will certainly face attacks during the race about his wars with judges. He will be better off if he can turn around and say, Yeah, those judges I fought with. You mean like McBride, the wife beater? Of course guys like that hate me. I wear their scorn like a badge of honor.
But the real catch for Hallinan was Fazio. If Fazio runs, Hallinan and his supporters -- more likely his supporters, since Hallinan lets others do his dirty work -- will portray the defense attorney as a man who tries to talk women out of filing domestic violence charges.
Is this the kind of person you want as a DA? Hallinan and his supporters will ask. A man who intervenes and tries to keep women from seeking justice when they are abused by their husbands?
They could not do this if the case hadn't been charged.
If Hallinan were of a mind to, he could charge Fazio with intimidating a witness, too. Or Hallinan could simply call Fazio as a witness, and try to dirty him up on the stand with questions about his role in trying to calm the situation down. If Hallinan's office characterizes it as witness intimidation, even if Fazio isn't charged, the transcripts of those proceedings would make wonderful fodder for political fliers, wouldn't they?
Every district attorney makes decisions based on the intersection of law and politics. The trick is to make sure your politics don't blind you from the empirical facts of a case.
If McBride had beaten the hell out of his wife and if Fazio had gone over to hush the mess up, then I would heartily congratulate Terence Hallinan on his good fortune. He would be able to score some political points and put two scumbags in jail at the same time.
But that doesn't appear to be the case here. Elaine McBride was not badly hurt. She declined medical attention at Taraval Station. And James McBride, who passed a polygraph, had his own wounds to show cops.