When George Gascón was appointed district attorney by outgoing Mayor Gavin Newsom in January, the choice surprised all of San Francisco. It was a bold move, one that put Gascón in a truly unique situation: having to scrutinize the work of the police department he presided over.
Immediately, questions were raised about whether Gascón could be impartial in cases that involved alleged police misconduct. And now with police officers accused of conducting illegal warrantless searches and falsifying police reports to make drug busts, the public is about to find out whether he can.
“It probably will be that George Gascón will break the record for conflicts of interest,” said Golden Gate University law professor Peter Keane. “Not that there’s anything evil he’s done, it’s just the unique position he’s in.”
Keane said Gascón could very well be the first sitting chief of police appointed to district attorney of a major city in American history.
“It’s a first,” Keane said. “And we already have a first set of problems.”
Law enforcement and legal experts interviewed by The San Francisco Examiner all suggested that Gascón pass the cases on, although some thought there was a clear ethical breach while others felt merely the perception of bias can taint a case.
Gascón’s refusal to pass the cases on to the state attorney general have led Public Defender Jeff Adachi and David Onek, who plans to run for district attorney against Gascón in November, to call for independent investigations. Gascón has so far refused, saying he had no knowledge of the alleged misconduct when he was chief.
Gascón came on as police chief in August 2009 as a reformer who promised to professionalize the department. During his 18 months as police chief he attempted to reform the department, bringing in a new internal affairs unit that investigated criminal activity by police officers. For this reason, he said, there shouldn’t even be a perception of a conflict of interest.
“This office will not hesitate to prosecute wrongdoing coming from anyone, including police officers,” Gascón said.
Gascón’s office so far has dismissed more than 50 cases involving the officers in the controversial drug busts.
Someone who has been in at least one of Gascón’s shoes says that he is handling the aftermath well, but there will always be a perception of bias.
“Does he have any sense of responsibility for what happened?” said former Chief Tony Ribera. “I can remember when I was chief, whenever anything went wrong, I was the first person [to be criticized]. That’s a reality of political life.”
Former District Attorney Terence Hallinan, now a criminal defense attorney, said Gascón will have to prove that his only goal is to provide justice.
“I guess time will tell,” Hallinan said. “He doesn’t seem like he’s off to a bad start. He has dismissed the cases involving those officers.”
Legally, a judge decides whether a conflict of interest exists after an attorney files a motion in a criminal case. That conflict only exists if it is “unlikely that the defendant would receive a fair trial,” according to state law.
Already, the defense attorney for a wheelchair-bound man charged with attacking a police officer is filing a motion for Gascón to recuse his office from that prosecution.
Three off-duty police officers were accused of beating two men who refused to give them their fajitas outside a Union Street bar on Nov. 20, 2002. The officers, one of whom was the son of former police Chief Alex Fagan Sr., were acquitted of the criminal charges. Then-police Chief Earl Sanders and then-Assistant Chief Alex Fagan were cleared of charges of obstructing justice, but both men left the department soon after.
Debbie Madden, a former criminalist at the Police Department’s drug lab, was accused in March 2010 of stealing cocaine, leading to the closure of the drug-testing unit and the dismissal by prosecutors of about 700 drug cases. It was later revealed that police and prosecutors failed to disclose misconduct by police employees, including Madden, to defense attorneys.
Officer-involved shooting of wheelchair-bound man
Randal Dunklin, 55, sought mental health services at a South of Market facility on Jan. 4, and when he was turned away, he began vandalizing cars. Police officers shot him after he failed to respond to pepper spray and a bean-bag weapon and stabbed one officer in the arm. His criminal case for allegedly assaulting the officers is still pending.
Plainclothes unit scandal
In March, allegations surfaced that an eight-member undercover police unit at Southern Station was illegally entering residential hotel rooms during drug raids and falsifying police reports. An ongoing investigation has led to 57 cases being dropped so far. No charges have yet been filed against the officers.