Concerning journalistic ethics (?)

Last week, when a grand jury in San Francisco indicted the top brass of the San Francisco Police Department on charges of conspiring to cover up an unprovoked beating of two men by three off-duty officers, including the son of the assistant chief, the Mayor and other worthies attacked District Attorney Terence Hallinan for bringing the indictments as a political stunt. Hallinan told reporters that he hadn’t asked the grand jury to indict the brass: his targets, he said, were the three officers who committed the actual assault. Tim Reiterman, John M. Glionna and Carol Pogash of the Los Angeles Times more or less directly called Hallinan a liar:

The district attorney said in an interview with The Times that he had been “surprised” by the grand jury’s decision to include the Police Department’s top brass in the indictments.

But lawyers familiar with the grand jury system said Sunday that it is highly unlikely that a grand jury would have returned charges that had not been sought by prosecutors.

“Prosecutors do not come back with indictments unless they ask for them,” said Peter Keane, dean of Golden Gate University Law School and a former longtime public defender here.

“It’s like pushing someone off the roof and saying, ‘It’s not my fault he fell to the ground. Gravity did it.’ “


Local legal experts who have known Hallinan for years said that prosecutors exercise so much influence and control over grand jurors that the outcome of their deliberations is rarely a surprise.

Joe Freitas, a labor arbitrator and former district attorney, said he has never heard of a grand jury’s issuing indictments that the prosecutor had not sought.

“The district attorney in charge asks questions and often gives leave to grand jurors to ask questions,” he said. “Usually, the district attorney prepares the charges, based on the law.”

Some said Hallinan may be trying to deflect criticism from himself if the charges do not hold up. “If the case fizzles, he can say, ‘The grand jurors came back and all I did was prosecute it,’ ” said Brown, the former public defender. “That is disingenuous.”

If Hallinan thinks that any of the charges are unfounded, Brown said, he has the obligation to pare those out of the indictment. “Knowing him, in for a penny, in for a pound, I think he’s kind of getting a kick out of the fact that Willie Brown’s appointees are in a major position of embarrassment,” Jeff Brown said.

Why the reporters decided to focus their scrutiny on the conduct of the prosecutor, rather than the conduct of the indicted police higher-ups, is an open question, but on the factual question they could have been right: Hallinan might have been lying.

However, he wasn’t, and they weren’t. How do I know that? By reading the Los Angeles Times, of course. In today’s newspaper, Reiterman, Gliona, and Maura Dolan report that:

San Francisco Dist. Atty. Terence Hallinan is pressing criminal conspiracy charges against the city’s police chief and six police commanders even though records show he personally told a grand jury there was not enough evidence to indict them.

During closing statements to grand jurors, Hallinan and Deputy Dist. Atty. Al Murray said they were not seeking any charges related to the alleged cover-up of a street brawl involving three off-duty officers, according to grand jury transcripts.

The indictments a week ago of Police Chief Earl Sanders and nine others have thrown the city government into turm

Legal experts say it would be improper, even unethical, for the D.A. to move forward with charges if he believed they might not stand up in court.

Nowhere in today’s story do the reporters mention that it makes complete rubbish of their previous story. The two opposite stories share only one element: the conclusion that Hallinan must have done something wrong. As previously noted here, that conclusion starts out with a certain surface plausibility, given Hallinan’s previous record. But I’d really like to know what makes the Times so eager to protect the SFPD brass in this case.

Picking carefully through the weasel-wording, it’s possible to work it out that today’s story is based on selective leaks of grand jury transcripts made available only to defense lawyers under court “seal.” The lawyers gave the reporters everything but the evidence.

It’s certainly correct to say that a prosecutor shouldn’t press charges he doesn’t think he can prove. But it’s equally certainly wrong to say that a prosecutor shouldn’t press charges that “might not stand up in court.” The standard is that the prosecutor must believe that he has sufficient admissible evidence to sustain a conviction; he’s not required have a crystal ball that predicts how a trial might go or what an actual jury might do.

And it’s not impossible to construct a simple hypothesis that covers all the facts and doesn’t make Hallinan look especially bad. It’s quite possible that he looked at the case against the Chief and his colleagues and decided that it was marginal in evidentiary terms, despite there having been (as he told the grand jury) “obstruction after obstruction” impeding the investigation. (The paragraph containing that quote is in the print edition, on page 35, but not the on-line version of the story.) Considering that, and considering the damage that an indictment would certainly do (as the Times reporters noted in their previous story) to relations between the SFPD and the DA’s office, Hallinan and his assistant might well have decided not to bring those charges. However, the grand jury might have — seems to have — decided that the facts to support such a charge were there, and gone ahead with the full set of indictments, including the conspiracy charges.

At that point, Hallinan would have confronted a different question: not whether to make an aggressive move against the Chief, and implicitly the Mayor, but whether to ask the judge to dismiss an indictment charging a set of crimes for which he in fact has a good deal of evidence. He might reasonably have decided that there was no good reason for him to do so.

I’m not saying that’s how it happened. Still, it could have happened that way, an idea not so much as hinted at in the story. The reporters’ eagerness to pin some charge on Hallinan does them no credit. And neither does their eagerness to paper over their earlier mistake.

But I guess it wouldn’t be reasonable to expect the dead-tree sector, burdened by its obsolete technology and not exposed to real-time criticism, to match the high ethical standards of Blogspace.

Previous post on this topic here.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: