My First Felony

It was after dark in a small coastal town, and the sea fog was coming ashore off the ocean.  Just a few blocks from the water, a fight broke out between several men, and a neighbor called 911.  The police arrived a few minutes later, to find only one man left out on the street: the Defendant.  He had his shirt off, even though it was a cold night after dark, and the officers could see his tattoos.  These included the name of the town in black letters from shoulder to shoulder across his chest, a “locals” tattoo on his hand, and many others, each discrete, so that they appeared to be the accumulation of many years.

Two officers approached the Defendant.  He was sweaty and obviously agitated.  They immediately recognized him; he had a long local history of fighting and public intoxication.  Defendant recognized the officers.  The white officer had previously encountered the Defendant when he was outside fighting with his girlfriend.  Ever since that night the Defendant hated the officer.  Defendant walked towards the second officer, who was Hispanic.  The officer told him to sit on the curb – standard practice for the police deparment in this small town.  But the Defendant refused.  He was too riled up.  He seemed to know that the officers had been called there to respond to a fight.  He said that they ought to talk to some other people, and motioned with his head towards an apartment building.  The officers kept their eyes on the Defendant.  The Hispanic officer told him a second time to sit down.  Defendant insisted he didn’t do anything.

After the Defendant ignored the second command to sit on the curb, and as he kept advancing, the Hispanic officer put his flat palm on the Defendant’s chest.  He told him to sit down a third time.  But the Defendant wasn’t having it.  He slapped the officer’s hand away.  Both officers then grabbed him, one on each arm, and tried to move him to the ground.  The Defendant broke free, but after a struggle, the officers were able to get him down to the ground.  Other officers arrived.  It took four of them to get the Defendant handcuffed on his belly.  As they flipped him over onto his stomach to begin to talk to him about what happened, the Defendant kicked at the officers standing over him.  He was able to kick both of the original responding officers several times.  Then, he looked the Hispanic officer for a brief pause, and spit in his face.

The officer didn’t take a baton to him, or tase him, or shoot him.  He just continued working with the other officers to restrain the Defendant.  They flipped him back over onto his stomach, wrapped his legs up in nylon, and put him back into the patrol car, but not before he struggled his way back out and landed face first on the sidewalk.

Defendant spent five days in jail.  The officers have video and audio of him sitting in the back of a patrol car, screaming his lungs out.  Challenging the officers to fight.  Questioning their manhood.  Telling them he didn’t do anything.  He was charged with two counts of using force to resist an executive officer.  This is a pumped up version of a regular resisting arrest charge.  Defendant faced a maximum of three years eight months in state prison on those charges.

To the surprise of many observers, the Defendant found representation with an extremely competent, razor-sharp Defense counsel.  But one look at this lawyer’s resume told the whole story.  He was a “civil rights” attorney, who made a living out of suing police and their employers.  He would collect damages, and then use the civil rights law to make the losing party pay his legal fees as well.  These fees can, and have, been set by courts at $800 per hour and more.  Clearly, the lawyer was using this Defendant as part of a plan to sue the City.  But first he had to win this criminal trial.

I got the case on a Thursday, with jury selection to begin on Monday.  Sitting at my kitchen table that weekend, I reviewed the photographs and video of the incident.  I noticed photographs of a man arrested at the same time as the Defendant.  He had a six inch swastika tattoo on his body.  And the Defendant in my case was also covered in tattoos, although I didn’t see any swastikas.

I don’t know if it was lack of focus or what, but I stopped working on my pretrial briefing and started looking into Defendant’s tattoos.  In another context I might even criticize myself for failing to stay on task, but it paid off big time.  I found a lot of material.  In particular, a powerpoint listing tattoos banned by the military had a symbol that matched one of the symbols on the Defendant’s body.  I don’t know how long I had been searching, but it wasn’t long, and it paid off.

1. Aryan Nations; 2. National Alliance; 3. National Socialist Movement; 4. Volksfront; 5. Blood& Honor; 6. Hammerskin Nation; 7. Northwest Front; 8. American Front; 9. White Revolution; 10 Klu Klux Klan.

I immediately began to find out as much as I could about the tattoo and the organization it referenced.  I found out that it stood for a well-organized neo-nazi gang that promoted white power music.  I found out that they had a gang sign.  I then reviewed the preliminary hearing transcript in my case and discovered that the Defendant had flashed this gang sign during his arrest.  And I noticed the officer that the Defendant initially assaulted was Hispanic.

Everything started to come together.  I found an expert on white supremacists and convinced him to come testify, virtually for free.  That part was actually pretty easy: it turns out that no one likes racists and everyone jumps at the chance to put them behind bars.  I drafted a motion to admit the evidence.

We had a rough and tumble argument in court about what evidence to admit.  But the court agreed to allow me to present evidence of the defendant’s racism.  After the hearing, the court said, “now, is the Defendant still considering any offers?”  He talked with his high-priced lawyer for about 30 minutes and pled open.  That’s the criminal law equivalent of throwing yourself on the mercy of the court.

I didn’t get to conduct the trial, but I did get the satisfaction of watching the Defendant realize he was going to lose and give up.  Even more than that, this Defendant was planning on suing the City that arrested him.  In today’s climate, with the lower civil standard, the City had a very real chance of being found liable.  The conviction I obtained, however, bars this suit.  In other words, the conviction may have saved the city and its officers hundreds of thousands of dollars in damages and legal fees.  A very satisfying way to begin what I hope is a long career trying felonies.

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