Cothran

Judge McBride's "Special" Treatment
So when does a small marital scuffle -- one in which both parties seem to be culpable for the ensuing minor injuries -- become a criminal case that endangers a distinguished career?

Answering that one's easy: When the district attorney responsible for prosecution is Terence Hallinan, the defendant is a judge who's on Hallinan's shit list, and a key witness is a potential political challenger to our incumbent DA.

Superior Court Judge James McBride once threw Hallinan out of his courtroom, when the district attorney tried to have an improper conversation with the judge about a case outside the presence of opposing counsel. Hallinan and McBride were arguing about the bail amount for a priest accused of embezzlement.

On May 2, McBride was arrested on one felony count of spousal abuse. The district attorney later charged the judge with three misdemeanor counts of battery and domestic violence, and one count of intimidating a witness. McBride has pleaded not guilty to all charges. He faces up to two years in jail, the loss of his seat on the bench, and the revocation of his license to practice law.

In short, the case could ruin his life.
And Hallinan knows this.
The judge allegedly struck his estranged wife, Elaine McBride, a former cop like him, during a quarrel at the family home on May 1. The McBrides' longtime friend, former prosecutor turned criminal defense attorney Bill Fazio, came to the house prior to the arrest, but after the police arrived, to mediate the dispute. Fazio ran against Hallinan in 1995 and lost the DA's seat by a few percentage points; the race was ugly and the two have had a burning enmity for each other ever since. Fazio is expected to announce soon that he will challenge Hallinan again this November.

With the permission of police, Fazio spoke to both Elaine and Jim McBride. When Fazio left the McBride home, he was under the impression that the cops were simply going to write misdemeanor citations, since it appeared that both parties were equally guilty for the fracas.

Legally, the situation is dicey, a real wobbler. As best as I can tell, Elaine McBride was not seriously injured. The only wounds she sustained were a bruise to the hand and one on her chest. And, it seems, she sustained this injury during a mutual combat situation. She and the judge were fighting over a phone.

On May 1, Elaine McBride told police her estranged husband had abused her throughout their marriage. She mentioned an unreported incident from April 23, and another one from many years ago involving McBride brandishing a knife. Elaine McBride told the cops there was a witness to the older incident.

But the McBrides are going through a bitter divorce; the sudden emergence of her previously unreported charges should be viewed with a healthy amount of skepticism.

There are certainly mitigating factors. James McBride took a lengthy polygraph exam, voluntarily, regarding all of his wife's allegations. He passed. And Elaine McBride isn't the only one who has been injured. James McBride had deep gouge marks on his back (which drew blood) from the April 23 incident.

Based on what's verifiable about the two incidents, it seems to be a rather thin case of domestic violence, the kind of thing that happens every day in the city between contentious couples. Nothing at all like a classic case of domestic violence: a violent man and a battered woman engaged in a long-term, escalating cycle of one-sided abuse.

But if the case is weak legally, it's a real winner politically. Hallinan has ensnared two foes, including a potential challenger in the upcoming district attorney's race, in the same mess. And the case dovetails nicely with two promises he used to get elected: that he would more aggressively prosecute public officials, and crimes against women.

The timing couldn't be better. Hallinan is being challenged from the left by public defender Matt Gonzalez for not fulfilling a pledge to go after police brutality more aggressively -- including not prosecuting a cop who shot a teenage girl during a fugitive arrest. Hallinan can make headway against that charge by prosecuting a judge. It doesn't hurt that McBride was appointed to the bench by former Gov. Pete Wilson.

I can only imagine that old Terry wet himself with glee when he heard McBride, a foe on the bench, and Fazio, a foe on the election trail, were tangled up in the same wife-beating case.

Based on interviews, newspaper accounts (some of which quote the now-sealed police report), and the public documents I was able to access, this is what appears to have happened:

On Saturday, May 1, McBride went to his house to retrieve some belongings.
When McBride arrived, he and his wife fought over a cellular phone. As part of the struggle for the phone, Elaine McBride's hand was shoved into a wall and she sustained a bruise. James McBride told the cops it was not a willful act, a legal requirement of a battery and domestic violence charge.

During the same struggle, McBride put his hand into his wife's face. He says it was to stop her from charging him. She says it was an unprovoked shove.

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.

Yes, Elaine McBride has made allegations of a pattern of abuse (to the police who responded to the May 1 incident). But when I called her last week she would not confirm that she even said this to police.

This is a divorce. From all accounts, a rather messy one. All good journalists and prosecutors know not to take at face value any charge that emanates from a divorce situation. You need one, if not two or three, corroborative sources.

But not only has the DA's Office shoved this case into a courtroom on wobbly legs, it has also announced that it will pursue the case even if Elaine McBride recants.

Where's the fire?
It seems the DA is more interested in throwing mud on the walls of a courtroom -- for political purposes -- than actually conducting a sound prosecution.

Being a DA is an awesome responsibility, one that requires a certain detachment and intellectual poise. Above all you need to be fair.

Once again, Hallinan has come up short.

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

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