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tv   [untitled]    August 21, 2012 11:30pm-12:00am PDT

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adding additional exhibits, transcripts of interviews, the department position has been that both sides have -- had ample opportunity to introduce items during the trial. many of them more. for whatever reason, inspector lee and his council chose not to mark all of the interviews he would now like to have admitted. given ample opportunity earlier, we think the time for doing that is now closed. if we were to allow their record to be reopened to admit more exhibits, that would be a poor precedent to set. there are other things the department would like to present as well that our council did not present during the trial, but we recognize we are foreclosed from that. if that motion is granted, there might be other things the department would like to note as well. probably, we would have to take a break and have this matter come back another night, commissioners could read the
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material. with respect to editing the transcripts from the trial, our position is simply that we higher court reporters in order to make accurate transcripts. we are all bound by those. members of the commission or attorneys have had the experience of reading a transcript and thinking it was not exactly what they thought happened, but that is our process. we have a neutral third-party make the transcript, and for good reason. it would be an unfortunate precedent if we started editing the transcript, particularly if we allowed the parties to edit the transcripts of testimony by other witnesses. we do not have objections to the inspector presenting what he believes are the errors with regards to his own testimony. the commission can take those are not, depending on how they look at those at its. that is not uncommon in a civil context. we think that is a fair compromise. i believe that is what commissioner marshall decided we
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ought to do in this case. thank you. if you have any questions, i would be happy to answer. vice president marshall: questions for either party? >> it looks like there is a motion to dismiss for insufficient evidence. are we hearing that also? vice president marshall: i want to do these first. if there is nothing else, we will go into closed session and rule on these, and we will call >> commissioners chan, kin gsley, and turman. >> inspector frank lee, representing himself. >> the motion to request 13 additional investigative interviews is denied by a vote
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of 5-0. the second motion, to review and correct the hearing transcripts, is denied by a vote of 5-0. we just want to note that the commission has received the errata sheet. we will proceed to the next motion, the motion to dismiss for lack of evidence. you have five minutes, inspector lee. >> i submitted this motion to dismiss the charges, based on the fact that this case did not rise to the level of preponderance of evidence. that is one of the reasons why i submitted it. basically, this case stems from the fact that i had to fight to get into the homicide unit, and i complained publicly to the police commission, and made several appearances before the
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police commission, and complained about the homicide interview process. chief fong, right before she retired, finally let me in. i became the first asian- american homicide inspector in the san francisco police department. i filed a petition with 406 signatures, supporting my efforts to get into the homicide detail, basically complaining that the interview process was unfair. from the moment i set foot in the homicide detail, there was no welcome mat. the lieutenants of the unit were resentful. they were upset that i had gotten into the unit against their wishes. these are essentially trumped up charges. i would have taken a deal a long time ago, if i was guilty of any of these charges. i can go into each of the
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specifics, but you have my written closing argument and my rebuttal. maybe i will let mr. auden speak, and do a rebuttal, but i respectfully request these charges be dismissed. thank you. >> thank you, members of the commission. the motion to dismiss that we received has just a couple of lines. i believe you have a copy. there is no specific basis, other than the claim of insufficient evidence. the department suggestion to the commission has been this motion is no different from arguing the merits of the case. in particular, the specific arguments that inspector lee made this evening, with respect to bias, were not made in the
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written motion, so we did not put -- did not apply in our written motion. speaking to the issue about discrimination or retaliation, there is ample evidence in the record that corroborates the claims made as to each of the specifications. i do not want to belabor the point. in short, this relates to refusal to serve a search warrant as ordered. use of testimony in the transcript it took him six days to serve a warrant, and multiple repeated orders before he executed the warrant. you also have an accusation that he was dishonest when he told his acting lieutenant at the scene of executing the warrant that he had been instructed by another lieutenant to go home and have someone else write the report. we have the testimony from the
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acting lt. that evening that that was what frank lee had told him. and you have testimony from another lieutenant that he had said no such thing. you have also seen the interviews in which the inspector lee repeats these false claims. there is ample evidence. specification three is the argument that the specifications i mentioned are a violation of rule 9. the same evidence applies. specification for, the argument that inspector alito violated rule 21 because he was dishonest in three specific ways about a conversation with lieutenants bill lane -- lt. spillaine, you have seen that
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evidence. in comparison, you have seen the testimony from the lieutenant and internal affairs, where he claims the memo is false. finally, the time card submitted requesting payment for two hours when he did a five minute phone call while off duty -- that has been supported by the time card, which you have seen, a department general order which states it is inappropriate, and the testimony that you heard about the fact that such a time card would not be appropriate, and testimony that the time card clearly was not appropriate. i know we will argue about the merits in a little bit, but we would suggest there has been ample evidence to support the
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specifications. there is no specific claim of insufficiency. perhaps it would be better to consider this motion when you consider the merits. i hope that is useful. if there are questions, i would be happy to answer. commissioner turman: i just have a point of clarification. as i read your motion, inspector, it is titled "a motion to dismiss," because you believe the department has not presented a preponderant of the evidence. is that correct? the department has not submitted enough evidence. >> if you read through all the hearing transcripts, if you read through the closing arguments and my rebuttal, after mr.
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heckler was fired because the chief said his written closing argument did not commit -- did not meet department standards, dr. marshall, gave a second opportunity which i believe was an unfair advantage, because i had already submitted my written closing argument. we were entitled to another five pages. hopefully, you guys have read through all of that. to go over in the search warrant -- this is an illegal search warrant to begin with. this is a student journalist that was best friends with a homicide victim. he was at the scene. he witnessed this person getting killed. he invoked the shield law in talking to me and my partner. two tenants of the unit insisted
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on doing a search warrant. i told them the only way we would get this thing was through voluntary cooperation. commissioner turman: you are arguing your case. i think i understand where you are going. i just wanted to make sure i have the procedural understanding. >> i still have a little bit of time left. i know i did not use my five minutes. i would like to cover the rest of it. vice president marshall: i do not want to to argue the case. how much time? >> 3 minutes and 16 seconds. he has a minute and 44. >> specifications 2, 3, and 4 deal with a he-said, she-said, regarding the search warrant. i called a lieutenant, who was at home. he was the day watch captain.
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i was on my day off, serving the search warrant. i called him to notify him the search warrant had been served. i told him i was already off duty, and was going to get a day watch inspector to book the evidence. he said fine. that was done. all of a sudden, they turn around and bring me up on charges saying that was not what the lieutenant had said. he had put out memos regarding, "save money, save over time." i was just following instructions. specification three, i supposedly told inspector delahunte that the lieutenant think i make too much overtime. i would never make a statement like that. specification number four,
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supposedly we are in a meeting with lt. spillaine, and all of a sudden a door was open and he overheard this conversation? specification five is regarding and over -- an overtime card that was rejected. it was a phone call that i had received from the inspector regarding the homicide case. i put in the card. the department had an informal policy that had been going on for years. if you are off duty and get a phone call, you can support a card. it is like the court telephone standby system. vice president marshall: thank you. we are going to make a ruling on this motion in closed session.
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commissioner loftus: i have one question. did i hear you say you were following the memo about the reduction in overtime when you made the decision to ask lt. delahunty to complete the report and book the evidence? is that what you said? >> when i was on the phone, i reminded him i was off duty when i was serving the search warrant. i said i would have somebody on duty book the evidence and write the report. i asked inspector delahunty. commissioner loftus: i just want to make sure that is consistent with what you said previously. >> i was on the phone. commissioner loftus: i read it. but i thought i heard to say something different. i am glad i asked the question to clarify.
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vice president marshall: >> he had four attorneys, and then hacker gets kicked out again. >> we are back from a closed session. vice president marshall: i remember that. a letter from peter king. >> we are back in open session. you have a quorum. >> john alden, for the department. >> inspector frank lee, representing myself. vice president marshall: the commission has been liberated. the motion to dismiss for insufficient evidence is denied
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by a vote of 5-0. proceed with the hearing, i guess is what it is. let me set the parameters. five minutes for mr. alden, five minutes for mr. lee. we have the transcripts. we have read everything. you first, mr. alden. >> as i think you know, i have the disadvantage of coming to this case late in the process. that said, there is an important theme throughout this case. the inspector, when he came to the homicide unit, had become an inspector who liked to do things his own way, chafed at having other people tell him how to do things, and expected a significant amount of overtime. he was not able to accomplish those goals.
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he had to work with a team and was given instructions that were different than the way he might have wanted to do things himself. in part because of puckers supervision of overtime in that unit and department cutbacks in overtime in general, he was not able to incur the overtime he wanted to. unfortunately, his response was to become increasingly obstinate with his superiors and to refuse to comply with their orders, and to begin pushing the envelope on collecting over time, to the point where he committed dgo violations and began to be dishonest. the refusal to serve a warrant as directed -- there is no question there were six days between the time the warrant was obtained and the time the inspector executed a warrant. there is ample testimony that a deputy chief, captain, and lt. repeatedly ordered him to serve the warrant straight away.
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we know the decision to seek a warrant was reached after a round table meeting with many members of homicide and the d.a.'s office, and others. while he disagreed with the decision, one reason was that all agreed, other than inspector lee, that it be executed immediately. he was disobeying orders from superior officers. once he got to the scene of executing the warrant, he told the acting lt., delahunty, that he had been told by lieutenant stasko that he had incurred to much overtime and it should go home. he says the opposite. it is the standard in homicide, so that story is highly credible. it is also clear the inspector lee was unhappy with the
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warrant. he did not appreciate that others explain to him that he had failed to provide a copy of the warrant to the people at the house, and really got on him to make sure it is accomplished, as they should, because it is a constitutional requirement. he was also upset because he got a call from the person who was the subject of the search warrant. it was clear he was frustrated and wanted to leave. that led him to lie to one of his superiors about why he was leaving the scene. specification three is a read it -- a reiteration of specifications one and two. we know inspector lee represene conversation he had with the lieutenant. there has been a lot of argument about what the overtime policies were an should have been in homicide. none of that is relevant to the specification. the only thing important to this specification is that it,
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frankly, put things into the memo that were not part of the conversation that he an inspector spillane had. for example, he claimed that the overtime was approved. that is false. he talked about the work to be shifted to the economy over time. the fact is, the lieutenant did not talk about this policies at all in any fashion, so this representation was also false. finally, there was a claim by inspector lee that he told lt. spillane that those were against policy and that the lieutenant threatened him. that never occurred. that said, this is consistent with the frustration with the believed he was not getting as much overtime as he was used to, and the fact that he said that memo up to the captain instead
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of back to the lieutenant as ordered showed that he was using this memo as a tool to get back at or punish people. that explains a lot about his behavior, and also explains that he put in for two hours of compensation for a five-minute call, which is contrary. if you have any questions, i would be happy to entertain them. there is a lot more to talk about. vice president marshall: thank you. >> ok, the first specification was charging with repeatedly failing to follow the search warrant. the search warrant was served within the appropriate time. the california penal code said 10-day period should be deemed
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as timely executed, and no further sean of timeliness need be made -- no further proof of timeliness may be made. it was well within the statutory limit. my supervisors were aware that the search warrant could not be served immediately because alex was in hiding. this was a person who witnessed the homicide. he was told to stay out of the city. he did not give us any contact information. we did not know where he was at. i had his attorneys contact information, but he was told to stay out of the state. the coke deal mob has been known to kill a lot of people, -- the oakdale mob has been known to kill a lot of people. also, the dna evidence and searching the vehicle, i was trying to coordinate all of
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that when on april 27, which was my day off, that is when the lieutenant asked me if the search warrant had been served yet, and i said no, and he said he wanted the search warrant served, and he and the deputy chief were concerned that the search warrant had not been served, so i said ok, even though i was off. i contacted another, and we were trying to get outside to help, but they were not available, so i got three homicide inspectors from the swing watch him to go sit on alex wslsh's -- walsh's residents, and i made three telephone calls, and i told them, "i am already of duty, on overtime, trying to save over time, get the watch people, not to watch people but the
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inspectors on duty to book the evidence and to write the report, so that is what happened, and, supposedly, this next allegation, supposedly i told an inspector that they think i make you a much overtime and i should go home. i never made that statement to him. the sergeant claims that i repeated that statement to him, and we have this tape interviews. we have those transcripts. it is not in there. i never made that statement. and specification number three, i guess it is charging me with unprofessional behavior for lying to the inspector about the directions provided, so those are the allegations. it is a he said/she said -- he said/he said.
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the interviews were recorded. they were transcribed. and then there was the closed- doors meeting i had with lieutenant spillane, and he was trying to tell me to put my over time cards on the back and. you cannot do that, changing hours to put in for overtime. the lieutenant tells me that the day watch, they switched their hours, so they are trying to deny me over time by telling me to switch my hours. they are allowing the day inspectors to do that. i told them that i have worked every other unit, and no supervisor has told me to switch my hours. whenever our as you work, that is your over time, and that is what it is. and i did it, and they charged me with the specifications. supposedly, what they are
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saying, to make it a two-on one, the inspector conveniently over here's the conversation, this supposed conversation regarding overtime policies, which was never discussed i will go specifically to specification number five. ever since i've been in the bureau since 1999, inspectors that are off duty, especially from the department of operations, a two-hour cards. the lieutenant approved the card prior. do you want me to continue? vice president marshall: i am going to allow two minutes, and then you can come back for two minutes. any more time? >> thank you for the additional
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time, commissioners. before i start, are there any specific questions anybody wants me to address? vice president marshall: you can do that later. >> thank you. i want to discuss the execution of the search warrant. there has been a discussion on whether the execution of the search warrant was a smart move and whether it was appropriately obtained by a judge, in that the judge granted the search warrant. none of those cases are relevant. the only thing that is relevant is that they ordered him to serve fourth wet and he refused over the course of a week. if he thought that the search warrant was on lawfully obtain or invalid, it's possible we states that he could have written a memo, saying, "i believe the search warrant is illegal and should not be executed." we do not allow officers to make
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decisions about what court orders they are going to follow and which ones they do not. if they have a court order, they must follow it. if they have a problem with it, they can report it, but they still have to follow it. that is not what he did. he did not do anything that said he thought the search warrant was illegal. at the time, he just said he thought it was a bad strategic decision. at that time, it was not his call. it was his supervisors call. so i hope the commissioners are not distracted. the only question that is relevant to the insubordination allegation is did the inspector follow the order, and, obviously, he chose not to for a substantial period of time and did a very poor and resisted job of executing on the order. thank you.
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vice president marshall: two minutes. >> i never refused to serve a search warrant. i was waiting for the opportune time to serve the. they never gave me a direct order that said, "i want it served by the state and this time people i have served over 50 search warrants, over 250 arrest warrants at people's houses. the lead investigator makes those determinations. you listen to your lieutenants. you follow the directions. but he never said, "i want the search warrants served by 10:00 today." when he told me that he and the deputy chief were unhappy that the search warrant had not been served, i then took that as a direct order to serve it. i did not tell anybody that i would serve it. i did say that i did believe the search warrant was illegal, that search warrant was illegal, that the student journalists is

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