Op-Ed: San Francisco sheriff is seeking political cover for botched internal investigation

This column was originally published in the San Francisco Chronicle on March 7, 2019.

San Francisco Sheriff Vicki Hennessy announced this week that she is turning over to the Department of Police Accountability the investigation into up to a dozen deputies who allegedly beat 15 male inmates and degradingly strip-searched 16 female inmates.

But what she didn’t say raises more questions about what is really going on in the Sheriff’s Department.

Our late Public Defender Jeff Adachi and San Francisco Supervisor Shamann Walton recently called for more scrutiny over the department. On Thursday, the Board of Supervisors will hold a hearing in the Government Audit and Oversight Committee. This is a step in the right direction, but this hearing is about broader departmental oversight. Supervisors should take the time on Thursday to also address the more immediate concern: the integrity of the current investigation of the sheriff’s office.

Hennessy wrote that she was “nagged” by credibility problems that the internal investigation could face but fails to mention why: the botched investigation into the Fight Club scandal. That case collapsed this year, and the San Francisco district attorney’s office was forced to dismiss all charges when it became clear that evidence had been illegally tainted and destroyed by the Sheriff’s Department.

Hennessy wrote that she was “nagged” by credibility problems that the internal investigation could face but fails to mention why: the botched investigation into the Fight Club scandal. That case collapsed this year, and the San Francisco district attorney’s office was forced to dismiss all charges when it became clear that evidence had been illegally tainted and destroyed by the Sheriff’s Department.

The public still doesn’t know whether anyone was held accountable for these investigative missteps. The department simply closed ranks, claiming the smashing of the hard drive with a hammer was “standard practice,” and denying that anyone tampered with a cell phone that was the last possible source of evidence.

The timing of this announcement suggests an attempt to create political cover, not ethical clarity.

As a public integrity prosecutor, I have tried criminal cases against law enforcement officers. Here are three important considerations that deserve answers in order to restore public trust in this investigation:

• How can we be sure that the Sheriff’s Department hasn’t destroyed or tampered with evidence in this investigation? The Sheriff’s Department already is deeply engaged in the internal investigation. The problem in the Fight Club investigation was a mishandling or willful destruction of evidence.

• Is Sheriff Hennessy turning the criminal investigation over to an independent agency, like the San Francisco district attorney or the state attorney general? The San Francisco Department of Police Accountability only has legal authority to conduct administrative investigations, not criminal. An administrative investigation has a lower standard of proof that cannot result in criminal prosecution, only discipline in the workplace. In contrast, a criminal investigation has more robust ways to collect evidence (e.g., search warrants), a higher standard of proof, and can lead to criminal prosecution and conviction. The difference between the two types of investigations is important, especially because these very serious allegations clearly require a criminal investigation.

• Did the sheriff conduct these investigations separately, or is the administrative investigation once again commingled with the criminal investigation? The original problem with the Fight Club investigation was that the administrative investigation and the criminal investigation were impermissibly commingled, which meant all of the evidence was legally unusable in the criminal prosecution. The most straightforward solution to ensure this doesn’t happen again would be to conduct the criminal investigation first, with its higher standard of proof, prior to conducting the administrative investigation.

Public trust is critical in our justice system. We must believe that there is accountability. We must be able to trust the process. Sheriff Hennessy is right to say that we have one of the most progressive sheriff’s departments in the country, and she is right to promise to root out misconduct. But now isn’t the time for political maneuvering. It’s time to address past mistakes and ensure this investigation is done right.

Nancy Tung, a candidate for San Francisco district attorney, served as a prosecutor in the San Francisco district attorney’s office from 2006 to 2017.