Sex, Lies, and Terry Hallinan
The more I read the article in the San Francisco Examiner, the less sense its story line seemed to make. To say the least, the premise lacked logic.

A liberal female judge, a long-standing feminist with impeccable legal credentials, was going weak in the knees, letting a particular class of criminals off the hook by trashing prosecutors' cases, supposedly because she was biased in favor of — rapists?

When District Attorney Terence Hallinan used the Examiner to announce late in August that he was going to remove all sex crime cases from the courtroom of Municipal Court Judge Ellen Chaitin, I couldn't help thinking that there had to be a back-story to the whole mess. There were too many gaping holes in the article, holes that any good reporter or editor with even a passing knowledge of the criminal justice system would have plugged. Then, of course, there was the extreme nature of the charge. And finally came the sparse, ephemeral nature of the evidence cited by Hallinan.

And my instincts — as fuzzy as they can be at times — were in this instance correct. Hard facts contained in public records lead to a clear conclusion: The Examiner was duped — or allowed itself to be duped — into running a distorted story that smeared a respected jurist. The only question left to answer involved motive. What would make the district attorney of a major city stray so far from the truth?

After making his front-page strike in the Examiner, the district attorney has decided to stay mum on the Chaitin matter, according to his spokesperson, John Shanley. (Given the weakness of his position, I think Hallinan is finally employing sound judgment on the issue.)

He was clear as a bell, however, when he spoke to Examiner reporter Jim Herron Zamora in August. Then, Hallinan detailed exactly why his office would begin invoking its right to pull cases from Chaitin's courtroom. So far, the District Attorney's Office has taken at least 10 cases out of Chaitin's courtroom under the theory that she is too biased in favor of sex offenders to preside over preliminary hearings in their cases.

Hallinan's argument, such as it is, goes like this: As a muni court judge, Chaitin oversees preliminary court proceedings that are meant to assess whether the prosecution's evidence in any particular case is strong enough to warrant a trial. In that role, Hallinan asserts, Chaitin has made horribly ill-informed rulings and improperly dismissed cases or parts of cases against rapists before they have had a chance to reach trial. Chaitin's rulings have jeopardized the safety of a vulnerable class of victims, Hallinan told the Examiner.

The district attorney's main point, however, had to do with motivation: He contended the Chaitin rulings he disagreed with were founded on a bias against the victims of sex crimes, and in favor of defense attorneys and their abhorrent clients.

Now, it's expected that prosecutors will disagree from time to time with the rulings of judges. Every once in a while, every head prosecutor will take off after a particular judge's rulings in a particular case. But to accuse a judge of having some personal animus against a vulnerable population seems a bit much.

A bit way too much.
In fact, that claim struck me as something a man tilted off an even keel might make.

Hallinan cited three cases in the Examiner article as evidence of Chaitin's bias. I looked into basic facts of the three cases and found no basis for the outrage of our district attorney. Let me correct that. I can understand why Hallinan would be pissed — if he were pissed at his deputies for filing weak cases and failing to conduct hearings in a diligent manner.

But in those three cases, Chaitin's rulings were rock-solid and smart. At the very worst, they might be considered fodder for legitimate legal debate or appeal to a higher court.

Had the Examiner done the proper amount of research into Hallinan's complaints, the reporter who wrote the story and his editors might have asked themselves two important questions: Is Terry Hallinan such a bad lawyer that he misunderstands fundamental aspects of the criminal justice system in which his deputies operate? Or does our temperamental district attorney have more unsavory motives for distorting the truth and lashing out at a judge with false slurs?

After doing that kind of research, this is my opinion: In Hallinan's case, it's a little of both.

Chaitin and Hallinan, both liberal Democrats, come out of the same small-town machine that has governed San Francisco for nearly four decades. They have known each other for years. Hallinan even threw a fund-raiser at his house for Chaitin's husband, local defense attorney V. Roy Lefcourt, in his ultimately unsuccessful bid for election to the municipal court bench this year.

These are hardly ideological opposites.
Chaitin was elected judge in 1992, with then-Supervisor Hallinan's endorsement in her quiver, and Hallinan was elected district attorney three years later. Once the ideological soulmates were ensconced in the criminal justice system, it was only natural they would join hands on the kinds of alternatives to incarceration that reformers have been advancing for years. In 1996, they teamed up on something called mentor court.

Mentor court takes first-offender drug dealers and puts them through counseling, education, and job training programs, all the while holding their sentences over their heads as incentive to do well. If they jump through all the right hoops, their sentences are wiped away, and they graduate from the program into, one hopes, more productive lives. Chaitin is the judge who oversees the program.

On Aug. 11, several mentor court participants were set to graduate, and everyone involved with the program wanted to get some publicity out of it. Hallinan, apparently, wanted the bulk of the credit and press-play. He hit the roof when he heard Chaitin had invited the mayor to make a speech at the graduation. [page]

Then scheduling became a problem. One of the graduates had to leave immediately for a prestigious East Coast college where he had earned a scholarship. The mayor also had a crowded agenda. The only day that seemed to work for most participants coincided with a long-scheduled Hallinan vacation at one of his family's cabins near Yosemite.

Our hotheaded DA hit the roof. Again.
Hallinan went ka-boom for a second time on Aug. 3. He stormed down to Chaitin's courtroom to talk about the scheduling issue, and instead launched into a discussion about a rape case Chaitin had dismissed.

Because the DA's Office was planning on re-filing the case, it was reasonable for Chaitin to assume that it would land back in her courtroom. She informed Hallinan, in front of witnesses, that he was engaging in what's called an ex parte communication between a judge and a prosecutor. In other words, not all the parties to the case were present; it was therefore improper under the Canon of Judicial Ethics for Hallinan to be speaking to her about it. Hallinan kept pressing her to talk about the case, which involved a 14-year-old runaway who had accused a man and a woman of raping her.

Chaitin finally got Hallinan to leave her courtroom, but she felt the conversation had gone too far and she needed to put it on the record in front of all the parties in the case. The next morning she had a brief hearing in her courtroom, where she did just that.

This hearing, Chaitin supporters think, boosted Hallinan's anger to a level where it could only be sated by revenge.

Eventually, Hallinan decided to attack Chaitin over her handling of three cases: a brutal gang rape, the previously mentioned alleged rape of the 14-year-old runaway, and a series of offenses allegedly committed by a predator who supposedly used drugs to help him rape women.

We'll take them one by one. And unlike the Examiner, I will give you all the facts in the proper context.

To be sure, the gang rape had emotional punch. Between 10 and 15 young thugs approached a couple waiting for a bus in 1995. They beat the crap out of the guy, and dragged the woman, screaming, for more than a quarter-mile across the Potrero Hill projects (no one called police) until they had her inside an abandoned boiler room.

Inside, evil occurred.
A juvenile was arrested and charged with everything from kidnapping and assault with a firearm to rape and sodomy (via anal penetration).

But there was a problem: no evidence of sodomy. The woman's anus was unscathed, and although semen was found in the rectal area, it meant nothing vis-a-vis anal rape, because of the proximity to the vagina, which, everyone agreed, had been terribly violated. So Chaitin made the reasonable and not very dramatic or significant decision of dismissing the sodomy charge. Her ruling had no effect on the overall case. She sent the young man to Superior Court with so many charges loaded on him that he could have faced 90 years in prison.

Once the case was out of Chaitin's court, and as the juvenile awaited trial as an adult, the District Attorney's Office voluntarily dropped all sex charges against the defendant and allowed him to plead guilty to assault and kidnapping. He is now serving 12 years in the state pen.

If anything, Chaitin's preliminary rulings upholding most of the charges gave the District Attorney's Office leverage with which to extract a guilty plea and a lengthy prison sentence.

The second case involved a 14-year-old runaway from the Los Angeles area who said she was raped by a man and a woman who were working in concert.

Again, there was an evidentiary problem: The victim's testimony was so shot through with implausibilities and holes and documentable falsehoods that her account of the actual rape (which if true would be a horrible crime worthy of horsewhipping) lacked credibility. Even the victim's mother told the defendant's attorney that the girl was a wild kid “not to be believed.”

This time, however, there was also a presentation problem: The deputy district attorney on the case made a serious mistake. He did not enlist an expert to comment on medical records detailing the 14-year-old's examination at San Francisco General Hospital. Without the expert, the records could not be included as evidence, because there was no properly designated expert to authenticate the records and comment on their meaning.

The failure to designate an expert in this case is not a minor mistake. It is a violation of standard procedure. When a rape case involves medical exams, a prosecutor simply must have a nurse or some other medical expert “lay a foundation” for the introduction of the records into evidence. And only an expert can give an expert opinion on what the records mean.

Because no expert had been designated — that is, because the prosecutor on the case screwed up — Chaitin simply could not let the records into evidence. This is not really a judgment call; it's a matter of proper presentation of evidence. And without the records, all the court had for evidence of this alleged two-on-one rape was the shaky-as-hell testimony of a little girl who had been arrested the week before her trip to San Francisco on a prostitution stroll in L.A.

Chaitin faced a difficult decision. Though some aspects of the girl's actions were consistent with a rape scenario — she immediately sought help, and her behavior was consistent with that of a rape victim — the doubts outweighed them. Chaitin dismissed the case.

(By the way, the medical evidence, which Chaitin saw but could not legally consider, was far from compelling. The alleged victim's vagina was slightly red, which is evidence of sex but not by any stretch of imagination conclusive evidence of forcible rape.) [page]

The DA's Office still contends that Chaitin violated the law by not allowing the medical records into evidence, but prosecutors have not availed themselves of their right to challenge her decision in Superior Court. And they have not re-filed the case, even though they have said they would do so. The DA is waiting for the 14-year-old to come back from L.A., where she is testifying as the victim in a similar rape case.

The third case Hallinan drew on involves Huy Le, who was accused of raping three women. Prosecutors said he picked up women on Haight Street and took them back to his apartment, where he gave them drugs and allegedly forced himself on them.

Two of the victims' cases had been dismissed before they even reached Chaitin's courtroom. The district attorney had taken what's called a “first dismissal,” meaning the office bailed on the charges because the cases were too weak. When a third victim came forward, all three cases were folded into one and presented en masse to Chaitin.

Again, The People vs. Le had many evidentiary problems. For example, the first two victims admitted they had lied about several aspects of the case, including the allegation by one woman that she was kidnapped at gunpoint.

Perhaps the biggest problem in the case stemmed from Le's propensity for videotaping his sexcapades. A videotape, involving the third victim, was played in court. It showed, most agree, consensual sex. Le and the woman would have sex, rest awhile, and have sex again. No force was evident. She did not appear drugged, though she did smoke opium with Le earlier. She appeared perky and alert. She even called her boyfriend during sex to lie about where she was.

Even so, Chaitin found enough evidence to send Le up to Superior Court to face trial on one instance of digital penetration and some drug charges.

In Superior Court, the DA's Office asked that all of the charges be reinstated. But after receiving signals that Superior Court Judge Robert L. Dondero, a former local and federal prosecutor, was going to toss the charges again, the current prosecutor cut a deal, dropping the one sex charge Chaitin had upheld and allowing Le to plead guilty to a drug charge.

These are the routine, if frustrating, vagaries of big-city crime-fighting. They are not cause to declare a counterproductive war on a judge.

Here's how a straight-shooting district attorney behaves: A weak case goes into a courtroom and dies, and the prosecutor hitches up his britches and tries to do better the next time.

Here's how Terry Hallinan works: Routine setbacks blur with personal recriminations and form a dangerous alchemy of revenge. Frustrated, Hallinan eschews legal avenues of redress and goes off half- or quarter-cocked in the press.

Hallinan is legendary for his pugnacious style. When he took a poke at the pompous and overrated pol Joe O'Donoghue, I applauded. Even before that, I liked his passion. As a supervisor he was a refreshing alternative to the bland machinations of the other supervisors. He was willing to stick his chin out for what he believed in, and stand up against entrenched interests, even when everyone else had signed onto the fix. I admired the hell out of the guy back then. I would still like to.

But all this feud with Chaitin shows is pettiness and a willingness to play fast and loose with facts. Passion needs brains and sober and rational judgment to make it meaningful.

I hope Hallinan realizes that, and soon.

George Cothran ( can be reached at SF Weekly, 185 Berry, Suite 3800, San Francisco,

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