At the beginning of November it was my turn to appear at the Hall of Justice to be court-appointed to any conflicts cases in which the Public Defender was unable to represent, usually because an attorney from that office represented a co-defendant, or a witness (snitch), or couldn't stand his/her client any longer and decided to bail out of further representation before the client even bailed out of jail.
Usually you pick up one or two conflicts cases and a handful off the Motion to Revoke Calendar where the old customers keep on coming back. A number of conflicts counsel bemoan handling these because these are the folks you see on Market Street or the bus who just aren't making it. They've been to jail, to prison, to this program and that, but still they roll out. Their defense to failing to bring their conduct into compliance with the law is that they are incapable of complying with the law, were they even interested, which is a fact not anywhere in evidence.
So they get picked up yet again making a hand-to-hand sale of two rocks of cocaine-base (crack) to yet another in the unending stream of undercover narcotics enforcement officers whose grandfathers I first saw in 1969 when I went into the justice business. Same game, different names on the police reports.
What would your client like to do, Counsel? intones the judge at the hearing to revoke on the DA's motion. The DA can't be bothered with prosecuting the new offense in order to get a new conviction, since that would only add one more to a long rap sheet. Simpler to move to revoke (lower burden of proof of a violation and no jury trial), and extend and modify the existing probation to include new conditions, such as entering a program, yet again, and, oh, yes, serving more time, up to another year in the Graybar Hotel, operated by Sheriff Hennessey, the county jail. Sheriff Hennessey is the largest provider of mental health facilities in the county, if not the world. He controls all the federal, state, and local money that goes into beds in programs that serve in lieu of mental hospitals.
We don't use mental hospitals very much any more, although inmates of Napa, Sonoma, Patton State, and Atascadero ("Atasca-doodle-for-the-noodle") will tell you that I'm lying. We use the San Francisco Muni, instead.
You see people who haven't washed in months trying to get on the bus with three bundles wrapped in plastic, or netting, or string. People who argue loudly with themselves. People who look to other passengers to make eye contact, in order to start a verbal fight, as in, "What are you looking at?" So no one looks at them, but we're all aware that there's a hand grenade aboard. People get up and move to avoid these poor folks who have no place to go but to ride the Muni to the end of the line, reboard, and ride some more. Sometimes they get off. Where are they going? No one knows, but they have important business, perhaps to pick up a Muni bus pass so they can continue to ride.
"My client wishes to admit he's violated probation which he would like modified and extended on the same conditions with credit for time served and another 90-days to be served on SWAP, the Sheriff's Work Alternative Program, which is also the Sheriff's Jail Alternative Program. The last person who wants to see another inmate in his jail is the Sheriff. He has people sleeping on the floor already. So Sheriff Hennessey operates the world's greatest labor program, SWAP, or, as clients call it, "Orange Vests." You know those folks in Orange Vests who clean the median dividers and shoulders along the freeways? They belong to Sheriff Hennessey. They bring a sandwich and report in the morning and clean along the roads and under bridges.
Not all clients like becoming Orange Vests. One client, a distinguished banker, on a DUI, was a close friend of the then governor. Could he avoid SWAP and do community service, he asked. Like what, I asked. I could teach inmates how to balance their checkbooks and stuff like that, he said. A lot of inmates don't have checkbooks, or anything in them if they did, I thought, but told the client I'd check it out with the SWAP people. Unfortunately for my client, shortly before, another of the city's leading lights had gotten his ass busted for cavorting with underage hustlers for money which kept the headline writers busy for months while his moral drama unfolded before a fascinated public. Imagine, people in high places going after a piece of ass, they may have wondered. What must his wife think, assuming she's still in the family home? The Deputy Sheriff in charge of SWAP advised me very politely that if SWAP was good enough for the City's Chief Something Officer, it was good enough for the governor's buddy, as well.
So, on my day in early November, a Tuesday, I was assigned not one or two new felony cases and a handful of Motions to Revoke, or MTRs, as we way, but sixteen new felony cases and a raging case of the flu. The Hall a' Justice is an incubator for the annual flu. On the day I went down to the medical center for the flu shot, I was diagnosed with the flu.
Coming down with the flu is not like when you were a kid and you stayed home in bed, the doctor stopped by, and your mother came in with a bowl of Campbell's chicken noodle soup for a few days while you recovered. No. With today's modern flu you still have to go to work, and then come home and try to recover enough to go back the next day. Three weeks down the road one of the clients to whom I'd been appointed to represent on Day One...
[Interruption due to earthquake.]
[Another earthquake, the third since Wednesday, in San Francisco, this one a real jolt. 9:21 a.m. 12/23. The radio and tv people call the first one an earthquake and the subsequent ones aftershocks. I call them pre-shocks, because I figure how do they know that the next one won't be a lot bigger? I figure we're getting set up for the big one. We haven't had three noticeable jolts in four days in the four decades since I arrived from Staten Island, New York, where earthquakes were unknown. 3.5 on the Richter, 2 miles ESE of Berkeley, similar to the others. Either the pressure is being bled off, or we're getting closer to the edge, I dunno. But neither do the scientists.]
...failed to appear in court (he was residing in Sheriff Hennessey's jail, this time for auto-boosting while on probation. Auto-boosting, aka car-clouting, refers to people who make their living stealing from your car, which you leave parked on the street with something in it that a person might like to steal.
Unfortunately for this gentleman, the person's car he'd clouted belonged to a cop who was moonlighting nearby when he observed (cops always observe, they do not see) a pedestrian walking past carrying a backpack that looked just like his. So the copper checked his car and was disappointed to find his window broken and the rest you can figure out.
The auto-burglar failed to appear in court that day because, the courtroom deputy said, he had come down with the flu. Now I knew where my flu came from. He's probably saying the same thing.
I dragged through the next six weeks alternating between the court, the med center, and home, and then figured it out and got better.
Yesterday I spent all afternoon in court on one of these appointed cases. Two guys (Allegedly. Anything a person does around here is "allegedly.") rob a guy of his backpack (backpacks are big this year) containing a laptop computer. Vic says one pulled a knife, represented by another Panel Attorney.
In the report, it's the other guy who pulls the knife.
At the prelim, it's still the other guy with the knife on direct testimony.
But the attorney for the other guy manages to twist the witness around on the stand so now he's testifying that it's my guy who had the knife. Says he saw the handle, in a hand, attached to an arm attached to a body and when he looked up, it was my guy's head on this body. So there.
This is very bad for my guy, even though, or especially since he was caught wearing an empty knife sheath later that day, so it appears he's the kind of guy who goes around wearing empty knife sheaths, or he wielded the knife, or he handed it off to the other guy who used it. Does that exhaust the possibilities? Of course not. Maybe he lost his knife before the robbery and did not use a knife in the robbery, if indeed he was even there or if there was a robbery.
It gets complicated, but either life is complicated, which it is, or some folks have entirely too much time to talk to other jail inmates about stories, which is one reason I decline to provide my guy with a copy of the police report, since he's in custody and I don't want him to rewrite it. The truth, as bad as it may be, usually better than anything they can make up.
I once had a client from Lucca, Italy, who shot a neighbor five times, and wanted me to write out a script for him to memorize so he could testify to it at trials. "I don't do libretti," I told him, and got fired. What he hadn't realized was that his own spontaneous, emotional, testimony about getting punched by the neighbor in the face (There'd been a feud. Don't ask why my guy was armed with a gun when the neighbor's wife rang the doorbell to complain he'd parked in front of her house and he went out, only to be confronted by the irate husband.) "Ho visto le stelle," he told me. "I saw stars." Another attorney got him off at trial, which was more than I'd been counting on for me, but was definitely aiming for. I'd taken a handgun, self-defense course, given by a police lieutenant, to prepare to understand the emotions that go into a shooting. Fight or flight reflex, based on articles provided me by a homicide detective. I briefed the next attorney.
This was the only time I used a mock-jury to prepare for a trial. Hired one of the top guys who assembled, on different Saturdays, two juries, twelve people out of the community. My job was to present the DA's case, and then mine. In each case the jury convicted. The consultant warned me not to allow the client to attend the mock trials. The client, who was paying, insisted on attending. He must've figured that I was a better prosecutor than defense attorney, so I was gone. That's that last time I'll have a client present at a mock jury, or have a mock jury, for that matter. Too much effort for too little return. I learned that no one likes guys who carry guns. Little guys figure you can talk your way out of anything, or avoid the problem in the first place, and big guys think their fists can overcome all odds.
Nevertheless, at my robbery prelim, the complaining-witness testified that the guy wearing the hood over his head was the one who pulled the knife. There was no reference to any headgear on the other fellow, my client, who was alleged to have worn dreadlocks ("dreads" say the cops who get it from the 'hood).
But under the other attorney's cross-examination, it's Mr. Dreads who threatened with the knife.
Now we've got it going both ways, Mr. Knife is either my guy, in dreads, or the other guy wearing the hood on his head.
But it wasn't clear that my guy wasn't wearing a hood, either, and the photo of the other guy at the time of arrest later that day, next to the loot (they were both arrested, same time, next to some of the loot) showed a jacket but no hood.
How'm I gonna get the knife back in the hand of the guy who originally wielded it, I wondered. That other attorney did a pretty good job of confusing the witness. How'm I going to straighten out this mess? I wondered. I had no idea.
I figured that I didn't want the record to be ambiguous as to who wore the hood. I didn't want both wearing hoods.
When it came my turn to question again, and knowing that my guy had worn quite observable dreadlocks, that is, he was without a hood, on cross-examination, I asked one question:
"Sir, is it correct that only one of the alleged robbers wore a hood?"
Answer: "Yes."
My client jumped, smiled, and mouthed across the courtroom to where I was sitting (to hear the witness better) "Thank you," for I'd succeeded in removing the knife from my client's hand and replacing it into the hand of the other attorney's client, which is always a nice thing to do in this business.
The judge reacted to the answer, too, sitting up, reaching for his pen and jotting what I thought must be a lovely note. Later in the proceeding, the DA argued that the other guy had the knife, which was nice, having her locked in. That is what I call making evidence disappear.
It's nice to have one question and its answer serve to justify another day spent, not to say wasted, at the Hall of Injustice.
A day or two before the DA turned down an offer I made to have another of my November clients admit a violation and serve a year in the county jail, concurrent with the ten months back in the Joint (the State Prison) that his parole officer was recommending on a revocation for the same offense. Judge asks whether the DA and I have reached an agreement.
"No, your honor, we have not", I say. "I've made a most generous offer which the DA has unreasonably declined."
"I've spoken to my supervisor," says the DA, "and in light of the fact that the defendant has three recent prior felony drug sale convictions, we think this is a state prison case."
"Apparently, your honor, the DA supervisor has failed to realize that this (12/21) is the longest night of the year and that in a few days it will be Christmas."
"Apparently," says the DA.
Christmas counts for a lot down at the Hall, but not everything.
But all is not lost. In another case I'd put in the preliminary hearing and ran into a buzz-saw. When I learned to do preliminary hearings, the purpose was to weed out bad cases by testing witnesses under cross-examination. P-Hs were mini-trials. One I was involved with took five days. Child witness. Could only testify a minute or two at a time. Crazy.
In 1991 the California District Attorneys Association got together and put together an initiative to make life easy for DAs by eliminating rights of the accused. One of them was the right to a meaningful Preliminary Hearing. A preliminary hearing serves to require the DA to produce enough evidence supporting the charge to justify holding the accused to answer at a trial. Under Prop 115, the DA was allowed to dispense with civilian witnesses and have a cop testify as to what the civilian, or other cop, told him. Trial by hearsay, only this isn't a trial, it's a prelim. And the defense is restricted in the questioning. No longer are we weeding out bad cases, but shoving cases along, good, bad, and indifferent. The big no-no is asking a question in which the DA, or the court on its own motion, can object to your question on the ground that is really for the purpose of discovery, and not to impeach the DA's evidence, negate an element of his case, or establish an affirmative defense, such as bad search, bad confession, or statute of limitations, which doesn't come up all that often, actually. It did in child sexual molestation cases pre-Stogner, a U.S. Supreme Court case from about 2003.
So I get upset with the judge for sustaining all of the DA's objections that my questions concerning where the cover officers in a hand-to-hand narcotics buy-bust were located according to the Buy-officer who was testifying as to what he did and what the others told him. According to Prop 115 and Peo. v. Whitman (1991) (Cal. Supreme Court), the testifying officer relaying the hearsay must be in a position to evaluate the hearsay, not just read what another cop said or wrote. So I wanted to know where the cover officer was when the deal went down and who said he found the Marked City Funds (MCF) in my client's pocket.
You'd be amazed at all the ways that MCF finds their way into the pockets of innocent bystanders. It's as the MCF has eyes. Either that or the recipient is the Lookout who receives the money to make it harder to prosecute the Seller. Which was the DA's theory on my guy. The DA is constantly objecting, "Discovery, your honor!" and getting sustained. Finally, I quit, ready to go home.
But the DA gets one last chance to question and asks the narcotics officer, "Officer, what time of day did this incident occur?"
"OBJECTION, YOUR HONOR, DISCOVERY!!" I say, and the people behind me in the court start laughing, as almost does the judge.
Later, I squawked about being shut down, not saying that I thought the proceeding little better than a Guantanamo detention hearing, not wishing to offend her honor. So I simply called her proceeding a "sham" and a "charade," for which she "thanked me for my speech."
No sense in going to the Hall if you aren't going to try to improve the system, is there?
As I walk out of the Hall a number of my client's friends and onlookers compliment me, saying, "You really brought it to them that time." "Thank you." Atticus Finch does it again, I think. Where are the cameras?
Years ago I was trying a case in Santa Barbara, on not one but two changes of venue. The Golden Dragon Massacre. Santa Barbara is a small town. I'm the only defense attorney. Five murders, eleven gunshot wounds among the survivors. My wife and I are having dinner in a restaurant near the famous courthouse. Strangers are coming up to say hello and shake my hand.
Being a celebrity, even for a moment, is an interesting experience. Pretty girls smile and say hello outside court. It lasts for about five minutes and then you have to figure out what you're going to do next to continue making a living. Now pretty girls on the bus say, "Would you like my seat, sir?" And the cute ticket-seller at the cinema says, "Will that be a senior ticket, sir?" These are letdowns.
Weeks later it comes time for Mr. Alleged Lookout in a Drug Deal, hand-to-hand of heroin-tar to an undercover cop, to make his deal or go to trial, which is not advised. Both defendants are black guys around age sixty, with rap sheets that go not by the page but by the pound. Residents of the joint many times, and don't want to go back, but don't have much going to keep them out when they hit the street, unless they want to forego eating and the occasional high, funded by street sales to customers who sometimes include undercover narcotics enforcement officers.
DA wants a plea to the sale for credit for time served, release from jail at sentencing in three weeks.
My guy refuses to plead to a sale, insisting he wasn't part of any sale and the money got in his pocket by magic.
The other guy, who sold, is willing to take a sale conviction and six months in the county.
I approach the DA with an offer. How about you let my guy plead to a 32 PC, Accessory, felony, for the same terms and conditions?
DA says she'll go for it, but wants 90 days instead of credit for time served at sentencing in three weeks, in return for the better deal.
I go back to my guy and say, look, DA wants 90-days, but before you go nuts, let's figure it out. On ninety days you'll serve sixty, given 1/3 off for good behavior, which makes sixty. By the end of the month, in a few days, you'll have served 61. The DA will owe you time. Sentencing will come up in mid-January and you'll be released that same day. This is the same deal, only the DA thinks it's better for her because she dreamed it up on the spot and didn't calculate it out. So let's just take it and not say a word.
He did.
The plea goes down.
"Does the DA have a motion?" I ask the judge, who looks at the DA.
The DA moves to dismiss the sale charge in light of the plea to being an accessory.
Then the judge mis-stated the date of the next court appearance, for sentencing, giving my guy an extra week in custody, to which I offer the correction, which is accepted.
So I'm really paying attention. The judge doesn't say these things, nor the DA, nor the attorney for the other defendant. But I've been burned on pleas before, despite all the care in the world, and have learned to cross the tees and dot the eyes in plea deals. Spell it out. Put it on the record. Leave no wriggle room in a notoriously sloppy proceeding because by now the deal is being closed and we're all in a rush to avoid the trial and get the hell out.
"What's an accessory?" my guy asks.
"That's a guy who stands close enough to another guy on a street corner who sells dope and winds up with the money mysteriously in his pocket. That's the definition of accessory." It made sense to him.
As we finish, my client leans over, offers his handcuffed hand, and says, "You're a good lawyer."
I accept his hand and say, "Good luck," as the courtroom deputy leads him back to the holding cell to await the elevator ride back up to Sheriff Hennessey's Sixth floor jail and release in mid-January, with the DA owing him time, which is a switch. We'll argue that the DA owes him, next time.
It's a few days before Christmas, now, and I hope to enjoy a lovely visit with my new grand-daughter, 18 months.
Later I'm standing in the back corridor between the courtrooms, the judges chambers, and the clean rest-rooms when another judge walks past, smiles, and says, "Millions for defense..." which is cute, for the punch-line he leaves off is "and not one penny for tribute," to which, had I the presence of mind, I should have replied, "...and not one penny for sanity (or justice), but why push it.
Millions for defense.
Sounds good, right?
You know the defense attorneys mantra.
"Innocent until proven broke."