The Route

In late May of 2019, $10,000 worth of contraband arrived at our local prison. It came in two packages disguised to make it appear that they were sent by a company approved by the prison, when in fact they came from members of a blood click south of our local downtown. The contraband was hidden in Stax Potato Chips cannisters. It was vacuum-sealed to prevent detection by our K-9 units.

Prison packages can’t just come from anyone. They can only come from “approved vendors.” These are companies that are checked by CDCR to ensure that they will not send contraband to inmates. This prevents a grandma from sending her son a birthday cake with a file in it, for example. Each prisoner, if they are following the rules, gets a certain number of packages from these vendors each year. Prisoners can choose what items they want. They can order everything from Air Jordans to televisions.

Even though the mail system is designed to prevent contraband from entering the prison inmates still attempt to smuggle things in through the mail. They may organize a group of inmates to make this possible. Once a group of inmates has established a method of introducing contraband, they call it a “route.” The roles on the route are fairly well-established. For example, every route needs a facilitator on the outside to obtain the contraband. Routes need receiving inmates on the inside to take possession of the contraband. If you’re moving drugs, you may need a seller to distribute the drugs once their inside. The list goes on and on. Inmates working in the mail room are particularly valuable. They can identify packages with contraband and keep them away from the officers.

The $10,000 worth of contraband that arrived in 2019 was on a route. It was only a small part of the contraband that arrived into the prison on that route, and an even smaller part of the total contraband that arrived that year. But shutting down a route can do a lot of damage to the black markets that flourish in the custody environment. Black markets are a problem because of the violence that comes with them. The black market for alcohol during prohibition gave us Al Capone, for example. In prison, when you buy something on credit and can’t pay, you get an Al Capone response, or worse. When someone doesn’t pay in the black market, they get hurt or killed. That’s why routes are bad. Drugs, particularly methamphetamine-induced psychosis, are also a problem in prison, and they come in the routes.

This is an example of how the contraband was hidden within the packages. The contraband arrived in a large box. Inside the box were additional sealed containers, such as this potato chip can. Inside the can, under the chips, was another vacuum-sealed container. The vacuum-sealed container had tobacco. This was one of three cans of contraband in one of the packages. Tobacco is illegal in prison. Because of that, this would sell for roughly $2,000 on the black market.

So we filed a case on the $10,000 worth of contraband. The detectives traced the packages back to the street and identified the true sender. They found video of him sending the packages at a UPS store. They did a search warrant at his house and found stolen guns. We charged him, along with the two inmates who he addressed the packages to. It was these two inmates that presented the greatest problem for the prosecution. All we had was the mere fact that they were intended the receive the contraband. After all, they had to be in on it with that kind of money involved.

Most cases result in plea bargains. We kind of suspected that this one would too. I was surprised when both the inmates insisted on their trials. Even the civilian, who was caught dead to rights, wanted a trial. We set the case for trial in 2021 and I set up a meeting with my investigating officer to check on the case. After all, it had been two years since we filed it.

At the meeting, I expressed surprise that there were no more connections between the civilian defendants and the inmate defendants. I asked the detective to go look for something. He returned later that day with great evidence. He found recorded calls from the civilian to the inmates. In one of the calls, they discuss “hussling” a “package” “low key” to “get some money off of that.” I informed the defense.

That’s when my troubles started. The defense claimed that this was late discovery and should result in a continuance or a mistrial or something. They were mainly angry that the case against the inmates, which had looked weak the day before, had suddenly become very strong. It became clear that one of the defense attorney was advising the defendants not to settle because he believed he could beat the case. He loudly and repeatedly accused me of misconduct and sandbagging. I pointed out that the jail calls were with a third party, Global Tel Link, and not exactly sitting in my drawer for two years. I pointed out that these calls were equally available to both parties. If he had wanted them, he could have subpoenaed them. I also pointed out that his client, who is on the calls, has known about them for years, whereas I just found out about them. I felt confident that any conviction would survive an appeal.

We began the trial. As I began to roll out the evidence, I felt better and better about my chances of convicting the inmate defendants. I could see the defense attorneys becoming desperate as their defense got less and less believable. But they did not let go the griping about late discovery. They kept making outlandish claims, saying that they would have hired voice recognition experts and things like that, if only they had known about my evidence.

The judge was new: it was his third trial. He was starting to rattled by the defense claims. Judges don’t like to be overturned. They don’t like to have to retry cases. It embarrasses them. They also believe that it hurts their chances of moving to the appellate bench. All these considerations weight especially heavily on new judges. Without a history of appeals they have no sense of what is an issue and what is a defense red herring.

Unfortunately, the judge in this case lost his nerve. On the last day of trial, he offered sweetheart deals to each of the defendants if they would plead guilty. I think he did this because he believed the discovery issue would cause the case to be reversed on appeal. He was very polite about it, and I believe this judge has a bright future, even though he made the wrong call here. We let the jury go, and I spent the rest of the afternoon drinking at a Mexican restaurant with the cops.

The lesson for me: meet with the cops to review the cases way before trial, not the day before trial. The lesson for the cops: present all the evidence at filing, not some of it. And the lesson for all of you would-be judges out there: don’t lose your nerve. Trials are about truth, not evidentiary quibbles, and no one docks your pay if the Court of Appeal reverses you.

A Failure to Communicate

The victim lived in a trailer park in the desert. In her trailer, immobile for years now, she kept an etagere with her collection of dolls next to her collection of Jack Daniels’ whiskey. She had been strangled, probably with a belt, but maybe smothered, the medical examiner was unsure. She was found a few days after she was killed, in the trailer’s bedroom, her home ransacked. She had been dating younger man. He was in his late 20s, she was in mid 40s, divorced. The younger man, who would later become the defendant, never worked, and described himself as a “music entertainer.” He dated many women and once and was supported by them. After he strangled the victim, he fled to Colorado in her car, with her cards, and her cell phone. He wasn’t shy about talking about the killing. He told his cousin, who was later caught on tape repeating the confession.

It takes a lot of planning to prosecute a murder, and part of that planning is trying to figure out what the defense will be. In the face of all this evidence, we felt that we would have no trouble convincing the jury that we had the right man. In other words, based on the state of the evidence, we did not feel that “mistaken identity” was a feasible defense theory. Nor was self-defense: the victim was only 5′ tall and there was no indication of gunplay. No duress, no accident, no insanity, nothing. The only play we could see, based on the evidence, was heat of passion.

Heat of passion can reduce murder from murder in the first degree to manslaughter. Second degree murder is also possible. In other words, proving self-defense can take a murder defendant’s exposure from 25 years to life, all the was down to 15 years to life, or even 11 without the possibility of life. So the degree of homicide matters quite a bit.

We made an educated guess that the defense would be heat of passion. I listened to the defense lawyer begin his opening statement. I had spent months preparing the trial, and I knew that I would finally know what the defense would do. And the defense lawyer did not disappoint. He stood up and the first thing he said was, “My client did it.” “He killed her.” Then he asked the jury to listen carefully to the evidence, which would show that the killing was done in self-defense. It was expected, but it was still shocking. May younger defense lawyers believe that an aggressive defense means denying everything, and not giving an inch. Older, more experienced defense lawyers know that conceding what you have to without conceding guilt is a powerful way to establish credibility. But being relatively new myself, and working mostly with new defense lawyers, I had not seen the tactical admission done so dramatically before. The effect on the jury was similarly dramatic. They stared at the defense lawyer. They stared at the defendant. He remained silent as he sat at counsel table.

But he did not remain silent for long. At the close of the People’s case, he chose to testify. This made me extremely anxious. The play for manslaughter was being done with skill and credibility. If the defendant, who had sat there and listened to all the witnesses, just stuck to the story that his lawyer had already laid out, then he would massively increase his chances. Indeed, if he showed remorse and humility, the jury might even be tempted to go farther. I watched him as he was sworn in. On direct examination he seemed to be calm and forthright. He talked about his drug use without any shame or spin. But little by little, his story began to diverge from the opening statement. I noted down the differences, to highlight them later, during closing arguments. And the differences began to pile up. I began to ask myself, “what is he saying?” and “where is he going?” I didn’t have to wait long. The defendant said that he left the victim alive in the trailer and robbed her. She was alive when he last saw her. The same lawyer who had told the jury that his client was the killer was forced to ask his client, “did you kill her?” He answered, “No.”

The lawyer said his client was guilty and the client got up and disagreed! I have no idea how that could happen, but I know that it’s bad. Lawyers are supposed to make tactical decisions and clients are supposed to make big decisions, decisions like whether to concede guilt. Here, it looks like the defense attorney wanted to concede guilt but the client did not. Moreover, it looks like the attorney may not have asked permission to concede guilt, and certainly had to walk it back in his closing argument, which was a sight to behold.

After closing, the clerk texted me, saying, “we have verdicts.” I freaked out, because the only way you could have more than one verdict is if the jury acquitted on murder 1. Only then would they need to return a verdict, one way or the other, on the lessers. Bargaining with the universe, I began to hope for murder 2. I could not look the victim’s family in the eye if the jury returned a manslaughter verdict. But I knew the jury convicted on murder in the first degree when the judge only looked at one of the verdict sheets.

A Few Seconds Becomes Two Years

I made an error: instead of giving a jury instruction for Penal Code section 12022.7(b), I mistakenly allowed the court to give an instruction for Penal Code section 12022.7(a).  Since (b) carries a 5 year sentence, and (a) only carries a 3 year sentence, this mistake means that the defendant will be released 2 years early.  That’s 2 extra years on the street.  Two years that he must treasure, but that the victims must fear.  All because the judge and I missed something: a moment that probably took 10 seconds out of a week-long trial.  There are procedures I could put in place to avoid making this kind of error.  I should more carefully compare the instructions given with the instructions outlined in my trial notes.  That would work, and that’s a lesson that I need to take from this.  But it amazes me how such a short error, buried in so much other work, could have such a large effect on the defendant and victims.  That’s one aspect of the job that continually surprises me.  So much attention to detail is required and so little time for detail is allowed.

The error was discovered at sentencing.  The victim’s family made their statements, as did the defendant. The defendant’s sister gave a heartfelt statement.  The defendant was sentenced to the maximum, after the two years was deducted by the court.  The defendant’s sister came up to me and said, “did you laugh when you said you were going to give my brother the maximum?”  I did not answer.  I just walked out of the court and down the hall towards my office.  I could hear the defendant’s family and the victim’s family arguing in the hallway after the sentencing.  I didn’t want to make the drama worse, since clearly the defendant’s family wanted to argue with me as well, but walking down the hallway still felt a little bit like running away.  So I stopped, turned around, and collected the victim’s family.  We used the staff elevator to go to the ground floor, where I could arrange a sheriff to escort them to their car.  On the way, the victim’s family said that they felt the sentence imposed was too short, and that he would be out in a minute.  I wanted them to have closure.  I wanted them to feel avenged, in a way.  I was disappointed that they did not have that.  And I was disappointed in myself for the 2 year error.

The Mercy Rule

When I used to play ping pong in the garage, we followed the “skunk rule”.  If anyone went up 7-0 on their opponent, they clinched the game and won early, without needing to go all the way to 11 points, like normal.  I’ve heard other people call it “the mercy rule.”

I just finished a trial involving a state prisoner.  He was accused of possessing a homemade syringe.  The syringe itself was an interesting design.  He had a needle, we don’t know where he got it, but the rest of the syringe was made from common items in the jail.  The needle was attached to a ballpoint pen that the inmate had hollowed out.  He had taken out the ball point, and replaced it with the syringe.  He also took out all of the pen components at the other end, where he put a piece of rubber that was sealed airtight.  The completed syringe works a lot like a turkey baster.  You squeeze the piece of rubber, move your needle over the drugs, and release the squeeze.  That sucks the drugs up into the former pen.  Then you stab yourself in a vein and squeeze a second time.  The drugs go into your vein, and off you go.

So we file the case, and it lingers around for a while, and then eventually the inmate demands his trial.  The assigned prosecutor is out of state for the trial date, and the case gets handed to me.  More out of curiosity than anything else, I decided I wanted to go to the prison to see what was going on.  I spent a half day out there, talking to the various correctional officers and seeing the sights.  I knew that jurors tend to not care much about these prison cases.  They have to be convinced by the prosecutor that she is not wasting their time.  But their default position is “bad stuff happens in prison, so what?”  I figured that they way I could get them to care about this crime, in which no one was injured, was to point out that prison is where we try to rehabilitate a lot of drug users, and that drug users can’t get clean if their cellmates are constantly smuggling around drugs and paraphernalia.

I went to the CDCR website, which is full of useful statistics, to see if they had anything on drug use in the prison.  They did not disappoint.  It turns out they had a paper analyzing the success of their recent efforts to reduce drug use in the prison.  It turns out that the CDCR does random drug tests of inmates.  They prepared a chart to summarize the results under the heading “[d]rugs and drug use are prevalent in California prisons.”  I like the CDCR for publishing all this data, but I love them for cutting to the chase.  10% of inmates failed their random drug screen during a six-month period.  By contrast, a high school that conducted random drug testing only had 8 positive tests.  That’s 8, not 8%.  And the school district has 23,000 students.  On the other hand, its in Oklahoma.

I thought I might introduce this evidence through an expert witness.  But about 10 seconds of reading gave me a better idea.  My prison probably does drug testing.  My prison probably does drug testing after an inmate is caught with contraband.  My defendant was caught with contraband.  I should see if he has any positive tests!  Sure enough, the prison has computerized (most) of their disciplinary files.  I was able to get access to my defendant’s records.

It turns out that he had tested positive for opiates only a few days before the incident.  And only a few days after the incident.  And every single month since then.  He even tested positive seven days before the trial started.  Seven days!  It really shows you what addiction looks like.  Or how stupid he thinks we all are.  The more I think about it, the more I think it was the latter.  And he might have been right to think that the prosecutor would not coordinate with the CDCR.  After all, the case had been around for a good long while and no one had done it yet.

I brought the evidence to defense counsel the day after we had picked a jury.  He asked the court for an indicated sentence, which the court would not give.  Then the defendant pleaded no contest to all the counts and allegations anyway, even though he had no idea what he was going to get.  He gave up.  And he gave up before we had even begun to try the case.  It feels a little bit like I skunked him.  I should say, he took advantage of the mercy rule.

Pirate Sword Letter Opener

A guy walks into a drug store and puts a bunch of items in his cart, walks towards the door without paying, and is intercepted by store employees.  Instead of stopping, he abandons the cart, pulls out a knife, flashes it at the employees, and runs out the door with a few miscellaneous items.  This robbery was caught on video.  There was no mystery about who the perpetrator was.  The video even showed the defendant pulling out the knife.  I say knife, but what I really mean is letter opener in the shape of a pirate sword.

Everyone knows that drug stores have security cameras, but he tried to steal the items anyway.  The crime was probably not a spur-of-the-moment thing, because the defendant did enough planning to come armed with the pirate sword.  He must have thought that there was a good chance he would get away with it.

Based on the defendant’s criminal history, it seemed pretty clear that he intended to sell the items he was stealing, rather than use them himself.  I’ve seen people selling these items by metro stops or in other public locations.  Based on his history of drug arrests, my guess is that the defendant then intended to use the money to buy crack.

The defendant had done this before.  He had gone to a market in a Latino area and tried to walk out with items.  It would have been a shoplifting crime – like this crime – but he used force to escape.  Use of force to escape with stolen property is the same as using force to take property.  In other words, it’s robbery.  But people don’t realize that.  They think that what starts as a shoplift stays a shoplift.  This defendant should have known better.  But he still wanted to steal so badly (loved crack so much?) that he tried to do what he did.

With that robbery in his past, the defendant was exposed to a lot of prison time.  He was on probation as well.  Altogether, he was looking at 17 years.  I just can’t wrap my head around what would motivate someone to risk 17 years of incarceration for a few bucks worth of shampoo and other items.  Either they believe the risk is extremely low – infinitesimally low, or the reward is extremely high.  Here, the defendant knew the risk was not tiny, because he had already been convicted of the same thing once.  The next question to ask would be, is the reward for this shoplift extremely high.  For example, is there a chance of making thousands of dollars that would justify such a dangerous risk of lengthy prison time.  The answer is clearly no.  There’s nothing in a drug store worth so much.  The only answer that makes sense to me is that this defendant loved drugs so much, that the reward of continued access to drugs was that high value reward that we’ve been considering.  It may not make sense to those of us that are not addicted to drugs, but maybe this guy loved drugs so much that he would be willing to risk 17 years of his prison.  That’s how great drugs are.  Or that’s how fully he was addicted.

There’s a lot of rhetoric and a lot of politics around the drug issue.  A lot of people talk about the value of leaving authentic lives; others talk about the value of expanding your mind.  For a lot of my life, I didn’t really see the harm in drugs, as long as you kept your habit under control.  But a case like this makes a stronger argument.  Drugs take over your life, to the exclusion of all else, and you become so driven to get those drugs that you take risks that defy all logic to the non-addicted.  Drugs mess your life up because you want them so badly.

The judge did not give the defendant the maximum.  But he gave him enough to teach me a lesson: keep your life in balance.

Pictures Within Pictures

When you look through the defendant’s Facebook feed, with his posts stupidly set to public, you see the frozen mind of a teenager.  What if you never got tired of graffiti, dip, and naked women?  What if you thought that posing with your shirt off was cool for the rest of your life?  And he had the loneliness of a teenager too.  His Facebook isn’t full of photos birthday parties, expensive food, or nights out with the boys.  It was one man wandering alone through cargo containers, on post-industrial street corners, and through railyards.  I found myself wondering who his audience was.  They weren’t in the pictures.

The pictures did show the defendant burning things.  Plenty of things in lots of different places.  His case was pending for years before we found the pictures.  I wasn’t there to see his face when he first heard that we had them.  Did he wince?  Did he kick himself for being so stupid?  Or had he seen this coming from far away, only to feel relief that it finally, inevitable happened?

By the time I met the defendant, the case had been through several lawyers on both the defense and the prosecution side.  The defendant (or rather his wealthy parents) had the habit of firing lawyers at a rapid clip.  On our side, the case was so old that people had been transferred on to new assignments; several rotations worth of prosecutors.  But when the case came to me, my number was called, and I tried it.

Defendant was accused of arson, and the defense was mistaken identity.  The defendant had even engaged an expert on mistaken identify.  She had been paid to opine that the witnesses who saw the defendant at the scene were mistaken.  The case had been pending for so long that the expert had written her report and rendered her opinion before we discovered the Facebook evidence.  The court granted an 1101(b) motion to admit the evidence.  We had a witness to another fire in the neighborhood testify that he saw the defendant light a fire and then film it on his phone.  That man took a picture of the defendant, who was, in turn, taking a picture of the fire he had lit.  And on the defendant’s Facebook, we found that very same picture.

The mistaken identity expert didn’t seem to know any of this.  When she got up and testified, I confronted her with the photo of the prior fire.  She had to admit that it was the defendant.  She had to admit that this type of evidence made it more likely, not less likely, that this was not a case of mistaken identity.

One day I’ll be so old that I won’t know where to look for this kind of evidence.  I suspect that Instagram has a ton of evidence, but I haven’t been able to figure it out.  In another case, two people met on a website called MocoSpace.  That’s when I first began to suspect that I might be a little out of the loop.  Backpage was already closed by the time I figured out that it was a gold mine of trafficking evidence.  But at least in this case, Facebook evidence did the trick.  I just need to make sure to keep looking for it.

Exiled from the Gym

I used to love working out during my lunch hour.  I felt like a disciplined, focused, ass-kicking professional.  I would walk into the gym, in my court clothes, and everyone would recognize me.  After showering, I would put my tie on in the locker room, as proud of my neckwear as I was of my bench press.  And then back to work, feeling refreshed, feeling like I was “ahead” for the rest of the day.  The gym was right by the courthouse, smack dab in the middle of my jurisdiction.  Which is to say, it’s not in a nice area.  But lunchtime was the only time that I really felt like I was getting out there in the community.  The courthouse itself is a fortress (most are) and the interaction that you have in the courthouse is mostly with the defendants and their families.  They are never happy to see you.  Your win is their loss.  At the gym, I could just fool myself into thinking that I was seeing victims, and family members, people who wanted their streets to be a little cleaner, people who were happy when I did a good job.

I was not surprised when I found out that a notorious member of a local gang had been arrested in the gym parking lot.  He was selling crack.  When the officers approached, they recognized him, pulled him out of the car, and discovered marijuana inside.  They didn’t find crack, but when they put the defendant in their squad car, he tried to hide the crack in his own crack, if you catch my drift.

I had never done a felony drug case before.  I talked it over with my wife, and with others, and their reactions surprised me.  None of them seemed very upset about the crime.  Most of them predicted that the jury would think that this case was waste of their time.  I tried to settle the case on the basis of their doubts, but the defendant wanted his trial, and I gave it to him.

The defense lawyer continually played the race card during the trial.  The arresting officers were white and the defendant was black.  She accused them of framing him.  Why would they do it?  “Because they could,” she said.  Because who cares about someone like poor old defendant.  This seemed silly to me and I stuck to the facts.

I felt optimistic at the end, and when I heard the jury had a quick verdict, I was sure of success.  I even had another lawyer stand in for me to take the verdict.  The ritual in this situation was for him to text “Guilty!” and everyone to celebrate.  But no texts came, none at all, and I started to worry.  Finally, after about an hour, I was told that the jury had returned a verdict of not guilty.  I was shocked.  A coworker interviewed the jury afterwards.  The jury foreperson said, “I think the prosecutor underestimated us.”  They wanted DNA testing on the bag of drugs recovered from the defendant’s butt crack.  They wanted fingerprinting.  They wanted a crime lab working in shifts to analyze everything.

I can’t go back to my gym now.  The defendant had plenty of time in custody as a pre-trial detainee.  All he did was work out.  The defendant testified that he had been arrested after working out, and based on his appearance during the trial, he never stopped.  Maybe that’s all he did while he was away.  The thought of being in a locker room with him is not something I’m especially comfortable with, now that I know about some other things that his gang has done.  In fact, every time I have a case with someone from that gang I think of him, running into him at the gym.  I know that nothing would happen, the statistics don’t lie, but it gives me pause.  It’s a small dilemma for me (and I’m sure I’ll go back eventually) but it’s an interesting reminder of what it must be like to live in that community full-time.  Of what it must be like to see people like my gang defendant on a daily basis.  Maybe that’s the lesson I should take to the gym when I return.

 

Next Time, Use A Knife

I recently tried a case in which a defendant really screwed himself over by using a gun.  He broke up with his girlfriend and confronted her when she brought another man to pick up her stuff from his house.  The boyfriend shot several times at the man, causing him serious injury.  Because he used a gun in his fit of rage, instead of using a knife, he is now facing life in prison.  By contrast, if he had used a knife, his sentence would have been increased by four years: one for the knife and three for the injury.  Four years versus life is a big difference.

California has a “use a gun and you’re done” law: Penal Code § 12022.53. If you use a gun during a serious felony, your sentence is extended by an additional 10 years. If you fire the gun, your sentence is extended by an additional 20 years. And if you cause great bodily injury to a person as a result of firing a gun, then your sentence is extended by 25 years to life. These extensions are in addition to your punishment to the crime itself. In fact, the punishment you face for using a gun often far exceeds the punishment for the underlying crime.

Penal Code § 12022.53 was enacted in 1997 to substantially increase the penalties for using a firearm in the commission of certain felonies. The Legislature found “that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and deter violent crime.”  The Los Angeles Times described the bill as “supported by virtually everyone outside the far left.”  The author said, “With the 10–20–life provisions of [Penal Code § 12022.53], we are sending another clear message: If you use a gun to commit a crime, you’re going to jail, and you’re staying there.”

The judge may not strike this enhancement.  In other words, even if the judge feels that the additional punishment is unjust, he cannot stop the additional time from being imposed.  Moreover a judge cannot avoid the additional punishment by simply granting probation, as he can in other cases.  Finally, the enhancement prevents defendants from receiving the same amount of jail credits that others may get: sentence credits are limited to 15% of the total term.

The limitations on the judge may not bind the prosecution, however.  Penal Code § 1009 allows the prosecution to amend the information “at any stage of the proceedings.”  If there is no prejudice, an amendment of the information for defect or insufficiency may be granted up to and including the close of the trial.  (People v. Goolsby (2015) 62 Cal.4th 360, 367-368 [amendment upon submission of the case to the jury].)  Indeed, courts have even allowed amendment after a jury verdict but before sentencing.  (See People v. Valladoli (1996) 13 Cal.4th 590 [amendment to correct clerical error by adding prior convictions].)  Of course, the prosecution could amend the complaint at any point during proceedings.  They also have the discretion not to charge the enhancement in the first place.  Enhancements like this one underline an important point: the prosecution often has more discretion to show mercy to defendants than a judge.
Some may agree with this law, and some may not.  As the Roman playwright Terence says in his “The Self-Tormentor”:
Ius summum saepe summa est malitia.
Extreme law is often extreme injustice.
(Act IV, Scene 5, Line 48.)
I find the title of the play appropriate, since we are all responsible for ourselves, andthose who violate the law open themselves up to this extreme punishment.  Whether a defendant actually deserves a break is another question.  The Legislature, which speaks for the people, clearly intended to throw the book at gun-toting criminals.  Prosecutors are part of the executive branch, and should carry out the legislature’s intent. I think that if more people knew about this law, they would be less likely to use a gun in the first place.  Maybe the most “merciful” thing for both victim and defendants is to get the word out, and prevent the crime in the first place.

Meet the Truth

When you’re nice to people, they give you attempted murder cases.  That’s what I found out when a more senior DA got transferred and specifically asked that a case be assigned to me.  Normally, someone with my experience level would not try an attempted murder.  It was her vote of confidence that let me cut the line.

The case was strong: lots of forensic evidence, incriminating statements by the Defendant prior to trial, and the weapon involved in the shooting was registered to him.  The Defendant lured the his ex-girlfriend over to his house in the middle of the night by throwing her stuff out.   He then shot a man that the ex-girlfriend brought to help her with the stuff.

I spent the weekend before the trial re-reviewing the medical records, which were voluminous.  There’s one line in the medical records that I noticed for the first time: it said that our victim gave a statement to another police agency (a different agency than the one handling the crime).  I didn’t have that report.  Visions of Brady violations swirling in my head, I scrambled to locate it at the last minute.  And sure enough, when my detective was able to run it down, it was extremely harmful.  The victim flat-out lied to the other agency.  He didn’t leave out details, he didn’t confuse things, he affirmatively made up a new story that had no relation to the facts.

I had to turn it over, of course, but I heard about it during opening, closing, and ad nauseum during cross-examination.  “The People’s witnesses are liars!” again and again.

The defense was self-defense.  Which meant the Defendant had to testify and provide an alternate version of what happened.  His lie, however, was so poorly thought out that I was shocked.  At first he seemed very smart and reasonable.  He was soft-spoken.  He did not let his emotions through in the courtroom.  But when he got the meat of the story, the exculpatory part of the story, he just didn’t have a compelling lie.

The best lies meet the truth halfway.  But the Defendant told a story that completely excused himself altogether.  He didn’t admit that he intended to kill but asserted that it was justified in self-defense.  Instead, he said that he never intended to actually shoot anyone.  He only intended to “cover” himself and scare the victim into ducking.  Then, he could make his escape.

The jury did not buy it.  The grouping of shots near the victim was too close together for an accident.  They discounted the Defendant’s story and convicted him.  He was charged with attempted first degree murder and they convicted him on first degree attempted murder, because they thought he only quickly decided to kill the victim; he didn’t premeditate.  But they found the gun allegations true.  Those gun allegations enhanced the punishment by 25 years to life.

Herding Witnesses

We argued motions in the morning on the day my second felony was supposed to begin.  I had two witnesses, both cops, subpoenaed to be in court at 10, to start out the case.  My civilian witness was taking a bus from 300 miles away, and wouldn’t arrive until the afternoon session.  But I had the two cops to fill the time while she traveled in.  When we finished arguing motions (all adverse rulings), the already angry judge turned to me and asked me who my first witness was.  The jury was waiting outside.  I turned around to and there was no one there.

For anyone who has ever had to herd witnesses, this is the nightmare.  There wasn’t a single other person in the courtroom, much less an officer.  I asked the court for a moment and looked down at my phone.  There were several texts.  The first officer said that he was sick and couldn’t come in at all today.  That’s bad, but not fatal, I would just have to scramble to put my evidence on another way.  I saw that there were other text messages; that must be the other cop telling me that he is waiting outside.  I’ll have to start with the other cop, but whatever, I can still make it work.  I check the other text message.  Sure enough, it’s the other officer.  My heart is racing already, no one likes surprises, but I’m feeling confident that I know what he’s going to say.  The judge is watching.  The Defense counsel and the Defendant are sitting silently next to me, probably wondering what the hell is going on.  I read the message: the other officer is on an arrest and can’t come in.  My stomach drops.

We approach, I tell the judge the situation.  Not in a calm or collected way.  Like a person vomiting information in chunks with a going film of apology and self-justification.  The judge, who was already mad, becomes incensed.  He says, “Ok.  You’re unable to proceed.  I’m going to dismiss the case.”  That would be extremely bad for the case: the defendant would be let go without me putting on a shred of evidence.  And the Defendant has a horrible record.  Moreover, I would have to explain why my scheduling problems robbed the People of California of their right to a trial.  And I’m new!  It’s not like I have a record of smooth success behind me.

I can sense the judge wants to protect the time of the jury, who have jobs and lives of their own, afterall.  I ask him if we can open, and tell him the cops will arrive while we are opening.  He tells me to call the cops and make sure that they can be there.  I do.  I call them on the record, with the judge sitting there watching and listening, with a horrible look of pain and worry on my face.  The second officer, who was in the middle of the arrest, picks up.  I tell him to stop what he is doing and come to court right now.  He agrees.  I tell the judge, and he brings in the jury.

The judge asks defense counsel if she is going to open.  She’s not an idiot.  She says, “I’m going to waive opening statement.”

I normally spend about five minutes on my opening statement.  In this case, a robbery, five minutes would be a stretch.  I just don’t have that much to talk about.  “He came in, he used force and fear, you find him guilty.”  But based on where the officer is coming from, I know that I need about 25 minutes, plus parking and elevator time.  So I start my opening.  And I’m dragging out it.  I’m literally going through every fact I intend to elicit.  I’m holding up picture after picture, saying things like, “here’s another exhibit I will introduce.”

I get to the end of everything and the officer is still not here.  I sit down, defeated.  Then defense counsel, miraculously, changes her mind and decides to give an opening.  Deliverance!  It takes about 7 minutes, as I’m frantically watching the door and bouncing my knee like a recovering drug addict.  And then, somehow, she’s done and the cop is still not there.

The judge turns to me and says, “call your first witness.”  I have nothing.  But an idea forms in my mind.  The jury is watching.  I say, “your honor, can I have a 15 minute bathroom break?”  I know what he’s thinking.  He wants to appear reasonable in front of the jury.  He says, “ten minutes.”  The cop arrived on minute seven.