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.

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.

Step One: Throw a Fit. Step Two: Give Up

The Defendant just gave up halfway through my sixth trial.  It was a DUI with a refusal allegation.  It’s a difficult misdemeanor because a lot of jurors want to have a chemical test to rely on when they are deliberating.  Without a chemical test, some don’t feel comfortable convicting.  The police didn’t see a lot of objective symptoms of intoxication which might make up for the lack of a chemical test.  In fact, some of my witnesses disagreed on whether the Defendant smelled like alcohol.  And the police didn’t observe bad driving, another factor that is normally used to argue that the Defendant was under the influence.  All the Defendant was pulled over for was a speeding ticket.

In addition to the weak evidence of intoxication, the Defendant had an alibi.  He claimed that he was the victim of a shooting which left a bullet in his body.  This bullet cut off oxygen to his brain when he was under stress.  Despite this alibi, the defense had not noticed any witnesses, such as doctors, nor did they intend to introduce any medical records.  All they had were photos of lumps in someone’s body that I assume they were going to claim were bullets in the Defendant’s body.  That’s it.  I think the Defendant was intending to get up there any say, “Hey, I’m the real victim here.”  “I was robbed back in the 90s and I was shot three times.  One of the bullets has traveled to my heart.  Because of that bullet, every time I get excited the bullet cuts off oxygen to my brain and I pass out.”

There were several problems with that theory, even if you don’t consider the total lack of independent evidentiary support.  First, and most important, I had a report by an EMT on scene showing that defendant’s blood was properly oxygenated.  In other words, his defense was a complete fabrication.  Second, the Defendant didn’t even pass out, he just fell down.  Third, the robbery part, and the bullets part are completely irrelevant.  Fourth, again, there was no evidence of any of this other than Defendant’s self-serving testimony.  And of course, if he really had this condition, should he be driving in the first place?

The case was won on motions in limine.  I was able to exclude virtually every aspect of the other side’s defense.  I successfully argued that his statements about the prior robbery were an irrelevant attempt to garner the sympathy of the jury.  Then I pointed out the lack of medical records, and argued that Defendant should not be allowed to give his lay medical opinion as to his injuries, nor should he be allowed to repeat a doctor’s diagnosis, since this is hearsay.  These motions were granted as Defense counsel threw a fit and cursed the name of the judge to anyone who will listen.  I think he was putting on a show for his client.  He made several comments to that effect.

This case taught me the value of discussing your cases with your coworkers: they suggested the motions that I used, even though I was more than capable of coming up with them myself.  I knew it was valuable to write motions in limine, but they were so effective in this case that the Defendant just threw in the towel.