Author: marshallsknowledge

Jim P and his wife, Lisa P, both Taiwanese subjects, started out their life in modest circumstances. Jim was a businessman and an engineer and Lisa a helper, wife and mother to two young boys. Jim and Lisa were hard workers. They set up a small manufacturing business in their garage. The business grew and eventually their business became the manufacture of small electronic items and eventually that business became the largest small electronics firm in the world.

Things were good for them until  Jim visited a resort in Mainland China named TsingTao, a resort on the Yellow Sea (also famous for a beer produced by the same name) for a business meeting. There, he met a much younger, beautiful, tall and elegant young lady named Jennifer Lee, who hailed from the Manchuria area, and guess what? Yes, a relationship developed and from that relationship, somehow, Jennifer became pregnant. Jennifer did not want to abort, and China had a strict policy regarding pregnancies, particularly out-of-wedlock. So, Jim arranged to have Jennifer move to Orange County, where she was to live in a townhouse in the El Toro area, and where she gave birth to a boy who was named Kevin. Everything was fine, except Jim and his wife Lisa and the boys also had a very nice house in Mission Viejo, a community very close to the area Jennifer and Kevin Lee lived in, an adjoining city close to Jim and Lisa’s house.

When Kevin was about 5 months old, someone knocked on Jennifer’s door and whoever that person was struggled with Jennifer, slashing her several times, causing her to bleed to death from knife wounds, but not before the alleged assailant bit Jennifer on the arm, causing a piece of Jennifer’s skin to reveal teeth marks. Kevin, the 5 month old, fared no better, ending up suffocated to death, purportedly by a pillow.

The penalty for a double murder is death, or life without parole, if one or both of the murders is of the 1st degree.

Jim had earlier booked a flight from Taiwan to Japan and then to Los Angeles and arrived several hours after landing to the El Toro townhouse, where he discovered the bodies of the two victims, and after a period of time, contacted the police, causing the beginning of the investigation of a “who done it” police inquiry. The date was August 1993.

The Orange County Sheriff’s Department was in charge of the investigation. The investigators did not have a murder weapon, nor any other evidence, such as fingerprints or other physical evidence, except the saliva from the bite mark on Jennifer’s arm, which revealed a DNA hit. They suspected Lisa as the perpetrator, but she was back in Taiwan, and there was no extradition treaty between Taiwan and the US, so she was secure, until law enforcement convinced Jim to persuade Lisa to come back to the States, so they could get a blood sample and make a comparison. At the time, DNA had not been accepted by any case in California as scientifically sound, and the scientists were not all in agreement as to DNA accuracy. Regardless, there was a match between Lisa’s DNA and the DNA recovered from the bite mark. So the Sheriffs convinced Jim to bring Lisa to the Sheriff’s station where the interrogation began.

Over several hours, the investigators  tried to get Lisa to confess; they threatened her with a death penalty, threatened to arrest her boys, played “good cop-bad cop,” and basically just did everything one could think of to get an admission, ignoring her constant repeated requests for a lawyer All to no avail, as no incriminating statements were made. So, in their frustration, they persuaded Jim to talk to her, and they would record the conversation, which he agreed to do, and did. Lots of talk, all denials, until, finally, Jim demanded to know why Lisa bit Jennifer, and Lisa said “because she attacked me,” but at no time did she admit to the knife slashing or the smothering of the 5 month old baby. With that, the investigators arrested Lisa for the murders

Lisa needed a lawyer and Jim’s representative here in the States searched for one, and, after inquiry with several civil lawyers for a recommendation, they chose me. To my memory this was sometime in 1993 or 1994

It’s nice to have the funds to do what is necessary for a complete defense investigation, together with experts, a slew of attorneys, investigators and experts, as well as jury consultants and the whole ball of wax, which lawyers won’t always get unless it is the Public Defender with a budget.

Lisa was not able to communicate in English,  so I would need an associate to communicate with my client. The first one I hired allowed his wife to talk to Lisa and gave her some bad advice, so I got rid of him and then heard of a lady named Anna Ho. Ho was just great. Anna ended up as a Federal immigration judge later. After trying to learn about DNA, I knew I was out of my league, but I had to attack the DNA as a scientific proof. Today it is accepted and is based on statistics such as there is one trillion chances the DNA belongs to the accused, compared to where it as found.

So the first thing in a felony charge is the preliminary hearing ,which I have explained in earlier blogs. There was going to be two things to raise at the preliminary hearing, one challenging the admissibility of the DNA and the second the statement given to Jim P and recorded as a violation of the 4th Amendment, based on the fact Jim was, in effect, a government agent, and Lisa had demanded on several occasions an attorney, and she had made it clear that she did not want to talk without an attorney present, plus she had stated several times she did not want to talk to the investigators, a violation of the 5th Amendment, the right to remain silent.

I was fortunate I had hired Lynn Patterson earlier as one of the attorneys in my firm. I had advertised for an associate and Lynn had responded. She did not have a wealth of experience in criminal law, but in the interview, I learned her undergraduate degree was in astroscience from Smith College. Not that I knew a lot about Smith, but that was where my wife had wanted to attend, but her parents would not let her go out of California, so my dear wife went to Stanford instead. I knew Smith was rated right up there with the seven sisters: Vassar, Wellesley, etc., so I figured I had a smart one there, and Lynn could learn criminal law as we go  I made a good choice, and we are still in contact after all these years

The preliminary hearing was before judge Art Kohle. I am going to explain the unique relationship between the Bench and Bar in further blogs, but just let me say the relationship was good between the judges, the prosecutors and the “good old boy” defense attorneys. On the surface, it probably didn’t look kosher, but it was. Judge Art was a former deputy DA and a golf partner with the head DA Investigator and me, but that relationship would have nothing to do with the independence of the judges and prosecutors. Well, Art had no knowledge of DNA, or the science around it, so it took him about 6 weeks to review the briefs, read the written material regarding the science, and after that was done, he ruled against me, and admitted the DNA. He also denied my motion to suppress Lisa’s statement with a comment on how closely he had reviewed the statement to the wife, and thus Lisa was held for trial based on the evidence presented at the preliminary hearing

Next, the trial…

Marshall

I suggest you read the earlier blog, titled “Visalia” before starting this one.

It’s about a four-hour drive on Interstate 5 from Orange County through the Tahachapis (the Ridge Route into the San Joaquin Valley,) past Bakersfield into Tulare  County on Highway 99, to the Visalia off-ramp into the town where you check in to The Holiday Inn located just as you come off the off-ramp.

The Holiday Inn is OK- clean, nice rooms, a breakfast plan, some cocktails at the end of the day and good service, but don’t you think spending one month (or more) in the middle of nowhere is a little too much? Well, that was how long the trial of James Mc lasted. The daily trial sessions were scheduled Monday through Thursday from 9:00 AM to 4:30 PM. So I would either drive after trial on Thursday back home to Orange County, or, depending on what was required for the case, stay over to Friday and drive back to Orange County. I would return to Visalia Sunday, around noon.

Sounds not fun, and it wasn’t. However one learns where the hidden gems are pretty quickly. One hidden gem was one of the best restaurants I have ever dined in and was called “John Vartainian’s Vintage Press,” located a few blocks from the hotel on the main drag. Really good food and elegantly prepared in a rustic setting, featuring Valley lore from the area.

Another place I found was “The Imperial Palace Restaurant” in a neighboring town called Hanford, the county seat of Kings County, known for its many dairy farms and agriculture. It was a short drive from Visalia. When the Union Pacific Railroad was built, the labor from the West Coast laying down the tracks was predominantly Chinese brought in by the railroad, and, from the East Coast, the labor was predominately Irish immigrants, again brought by the railroad. They met in Hanford and it is reputed that junction was where the two work crews met and laid the final spike, completing the railway. So why not go to this famous restaurant for a nice Chinese meal? Guess what? I could have been dining in France, as the owner sent one of his kids to Paris to be trained as a fine dining chef, and he was. When he returned, the menu was completely changed to fine dining French food, and for very little, one got an elegant five course meal from soup to nuts.

I was told to go to an adjacent town located in the Northern County of Fresno called Kingsberg. Again a short drive from Visalia, and there was a cowboy bar in the town. Go to the bar, walk into its back room and, my goodness, there was this elegant restaurant run by two young lawyers and their mother featuring again a grand meal such as frogs legs and other French dishes. Now this place is really off the beaten track, a place no one would have ever heard of unless one was local. Well, one evening when I decided to dine in this remote, out-of-the-way restaurant. I walked in and guess what? A couple already seated were having a private and enjoyable meal when their evening must have been ruined, as the guy was a lawyer I knew from Orange County, and the gal was not his wife. We acknowledged each other and he and his friend left rather rapidly. Lesson is- no place is safe when one wants to dally around.

The client, if you recall, was charged with one count of vehicular manslaughter of a young college girl in which the client’s Ford Bronco T-boned a VW at an intersection where the young lady was a passenger, and her boyfriend, the driver, was seriously hurt. The client had already been convicted of felony drunk driving and felony driving under the influence and the manslaughter conviction was reversed on erroneous jury instruction. So, the trial involved only the manslaughter charge, but the sentencing portion of the alcohol-related offenses was sent back for reconsideration of the six-year, eight month sentence. For a more detailed version of the pending facts, go back to the earlier blog titled “Visalia.”

A jury trial generally starts with some pretrial motion by the parties, and when that is done, with the jury panel called to the courtroom. Jurors are called to sit in the first twelve seats with generally some alternates in the event a chosen juror for some reason cannot continue. When a juror is excused after the jury is selected, then an alternate takes his/her place and the case goes on. The discharge is for cause, such as illness, or the juror cannot perform for some reason, or the juror, as an example, just refuses to deliberate with the rest of the jurors, The judge first addresses the jurors, letting them know what the charges are, learns of their marital status, are of residence, whether they are new or former jurors, asks about biases and prejudices, relationship to prosecution or defense witnesses and a variety of other subjects. When the judge is finished, he then turns over the questioning of the jurors to the attorneys. Sometimes, the prosecution goes first, and sometimes it’s the defense. What I am looking for in jurors, is first,  I like a juror who have never served before rather than one who has been through the process previously and has become jaded, or talked to the prosecution after a previous case, where, on occasion, they learn about all the bad stuff in a defendant’s past they were not able to know about; I do not necessarily want a jury of my client’s “peers.” I believe one demands more from his/her peers, such as young people are harder on young people, whereas an older person may look upon a young defendant more kindly, and a younger person may be more inclined to respect one’s elders, Of course, I don’t want anyone related to law enforcement. The DA Is looking to exclude anyone who has had, or his/her family has had, a bad experience with a police officer. I have to say this,  though one cannot systematically exclude or challenge a juror by race or religion, it happens. Also, occupation is considered. Do I want a medical doctor, when the issue has to do with questioning a medical issue that may come up in a case? Maybe or maybe not. I can’t write all the variations that occur in jury selection or reasons to excuse a juror. I should mention generally each side is entitled to ten challenges without any reason, and that is where it gets tricky. Actually there is a whole group of people with experience in specific psychological traits known as jury consultants, that specialize in helping lawyers pick a jury. I have only used such a person once in my career, and will cover that experience in a later blog where I represented a young woman accused of murdering her husband’s lover as well as suffocating the victim’s five month old baby.

The bottom line is, each side tries to get a jury panel they are comfortable with

In the present case, I was not too happy with the selection; I had two non-drinkers, two forest ranger game wardens, and they all had either heard of the case, or read something about it. Some even knew the prosecutor through Bible School. It didn’t look good for my client.

After the jury is selected, the prosecution then can make an opening statement as to what he/she believes the evidence will be to support a conviction, and the defense can address the jury or reserve its opening statement to the conclusion of the DA’s case. I generally make a brief opening statement, basically to try to diffuse the DA’s opening, reminding the jury of their promise to keep an open mind, and not to form an opinion until the entire case is submitted to them. I should mention, I hit hard on that aspect of an open mind in my questions to the jury during the selection process. I learned that approach when I was a prosecutor, because it became clear then, jurors generally have their mind made up before the defense has a chance.

Now, after opening statements, the DA starts to call his witnesses, and I  now have the advantage of the former trial’s transcript; thus I know in advance exactly how the prosecution’s case is going to unfold, which gives me plenty of time to either cross-examine, or to set the opposition up for cross or to lay the groundwork for my defense evidence.

The first witness for the DA is the surviving boyfriend and his testimony of  what occurred earlier that evening,  some about the destination and the speed, the collision and his injuries. No cross is needed, and no reason to keep him on the stand any longer, so “No questions, your Honor” Then the police, regarding their investigation, which includes an opinion on where the accident occurred, where the automobiles ended up, an opinion as to the location in the intersection where the collision occurred, the interviews, the defendant’s statement and then into the DUI investigation, the taking of the defendant’s blood, approximately an hour later, then the securing of the vial of the defendant’s blood, and the transporting of the blood to the chemical laboratory and the field sobriety tests administered at the scene. All this is routine, so what my defense will attempt to establish through cross-examination is what I call “accentuating the positive and eliminating the negative” (an old Johnny Mercer tune.) I rarely become nastily aggressive in my cross to the surprise of attorneys . My approach to cross exam is to be professional and nicely forceful. In every case, I write on my yellow pad “Be Nice” and “Be Professional.” I am convinced jurors try to do the right thing as best as they can, and appreciate an attorney who is professional, knows his/her case, does not seem unprepared or is fiddling with his/her paperwork. That works for me and is also based on lessons I learned earlier in my career when engaged in battle with good defense attorneys I encountered as an LA Deputy District Attorney. (One of them comes to mind:(Frank Duncan was an excellent defense attorney who was so nice in his presentation you could just see that jurors would favorably react to him. He did have a terrible tragedy in his career when he was living in the Santa Barbara area. He married after living with his mother for many years, Mom did not like her son being taken away by another lady, so she hired a couple of thugs to get rid of the new wife, which they did by kidnapping the wife, and they thought they killed her, but, no, she was buried alive and suffocated. The cops broke the case and cut without any promises to the two thugs. They testified against Frank’s mom, hoping to avoid the death penalty. They all were convicted, given the death sentence and executed. You can read the case People v Elizabeth Duncan 53 Cal 2nd 803.) I know jurors liked me and that is a big plus as a defense attorney and even better if they like the accused. I work with clients and greatly prepare them for cross examine. I am further convinced when it comes to trial that it is the only game in town where “Nice Guys Win Ballgames.” It is not a game, but it doesn’t hurt to be nice. Also, most important: be yourself. When I was  a DA, I encouraged those deputy DAs not to watch other attorneys in action, but develop their own winning style, because if one tries to emulate another lawyer, the jury will smell it and feel the insincerity and have a negative reaction. I may have mentioned  in an earlier blog, and, if so, forgive me, but I recall a DUI case I was defending in Santa Ana where I tried to emulate Al Forgett, a big bear of a guy, who was naturally just a swell, friendly guy. I noticed, when questioning the jurors, I was getting a negative reaction, so I just asked one of them if he was annoyed at my presentation and what do you know, he said yes. I followed up with a general question to all the sitting prospective jurors if any others felt that way, and several hands went up. The judge saved my bacon by dismissing the whole panel and we started over. I went back to my winning style and things worked out.

OK back to Visalia. What I wanted from the police witnesses was to firmly establish what they thought was the exact location of the accident based on skid marks and the location of fallen dirt from the fenders, because my expert was going to demolish the DA’s theory of speed and location of the collision, coupled with pictures I had obtained, showing the defendant’s vision was obstructed due to leaves blocking the boulevard stop sign for southbound traffic. When I talk about accentuating the positive, I try to bring out all of the positive signs showing sobriety, which I will use against the prosecution’s expert witness on blood alcohol and symptoms of one being under the influence, which I will use in my closing argument- re: sobriety, such as the first thing to go when a person shouldn’t be driving is mental stuff,  such as short term memory and the cross would also accentuate his answers to questions, spelling, no dropping of the driver’s license, did not need to use the door for balance when exiting the car, ability to understand and just a whole bunch of positive things one would not expect a drunk to do.

The main witness for the DA was Dr. Miller who was the County Coroner, and who proudly told the jury he had studied under Dr. Debowsky at the University of Oklahoma Medical School. Depowsky was the recognized authority regarding drinking and driving. He gave the usual stuff about what is known as retrograde extrapolation, which simply means there was a formula derived from an old study by another expert from Sweden, Dr. Widmark, known as the Widmark theory of absorption and elimination of alcohol, where one can relate back from the time the blood was drawn back to the time of the accident based on a given absorption time, such as one hour to absorb into the system, and an elimination rate of 1.5 hours. Also, the machine used to measure the blood, in this case, about .15, was a single chamber gas chromatograph. What Dr. Miller did not know is that I was in possession of several articles written by Dr. Dubowsky in peer-reviewed publications condemning retrograde extrapolation as unscientific due to the variations of the human condition, and one can absorb anywhere from 15 minutes to four hours and eliminate anywhere from 15 minutes to four or more hours, depending on all kinds of variables. So I presented the articles to Dr. Miller, plus copies of depositions in which Dubowsky had testified, with the bottom line being that Dubowsky condemned the back assumption and advised not to make such an opinion. That, plus all the things the accused did which were consistent with sobriety and reflecting that the accused was not under the influence at the time of driving. When Dr Miller walked off the witness stand he said in open court and in front of the jury, “I want to thank you, and I will try to come up to date on the science regarding alcohol and its effects”

Boy, was I smug. A recess was called before the next witness was to be called. This is when I learned a lesson for this case, and all future cases. I had engaged a local lady to watch the trial, let me know if SADD or MADD people were trying to infect the jury, and to let me know if I got too aggressive. So I sauntered up to her at the back of the court expecting praise of my cross examination of Dr. Miller. Well, she looked daggers at me, and said “You embarrassed Dr. Miller. He is one of ours!” Bingo. Remember that I mentioned I did not get a jury that I wanted? Two non-drinkers and two forest rangers among the twelve, plus a couple of school teachers, and I don’t like teachers, even thought my own daughter is one, as they are generally authoritative with little patience and particularly antagonistic to drunk drivers. In closing argument, instead of demeaning Dr. Miller for his lack of knowledge, I praised him as an honest man…. I said I hated to cross examine him, but what could I do in representing my client, which I would do if I represented one of the juror’s wife, husband, or child, etc. Since this case, I do the same to any witness I have demolished, and  I also complement my opponent attorney for a good job based on what he or she had to work with. One is always learning in this business.

Eventually it comes down to the defense. I called Harry Kreuper, the mechanical engineer, and he was great. We established the impossible line sight situation. proved the client’s car had already entered the intersection before the other car, based on location, dirt falling and crush damage, at a speed within the posted speed limit. Then Darryl Clardy explained the Widmark theory was created in the 1930s and has been criticized. He read the original article, which was in German, and it was based on a limited number of subjects and was not, in this case, scientifically viable and the DA couldn’t touch him Then, most importantly, the machine used in this case was an old model gas chromatagraph, with a single chamber measuring the alcohol content and had been modified to a two chamber machine in order to assure the measure of the sample was accurate.

The client testified to his drinking pattern and time of last drink just shortly before he left the earlier gathering,

To shorten this up, we argued, judge instructed, jury went out to deliberate, and, shortly thereafter, returned a verdict of not guilty to the manslaughter charge, and then, for some reason the judge also asked the jury to reach a verdict on the DUIs which had not been reversed, and the jury found not guilty on those as well

I moved to have the DUIs dismissed, but the judge ruled against me based on cases that upheld inconsistent verdicts. Instead of prison, he put my client on 8 months house arrest and a probationary term, which reduced the case from a felony conviction to a misdemeanor and had enormous advantageous consequences, allowing the client to continue as a gun dealer, as he would no longer be a felon, prohibited from possession of a fire arm.

The press really went after me as the “Big City” slick lawyer who stole the case from the local DA. (bothered me because we didn’t consider Orange County at the time as a Big City.)

Client was appreciative and every Christmas for several years sent me a case of olives from his vineyard

That’s it for now,

Marshall

Visalia is a quiet, tree-lined city in the middle of the San Joaquin Valley off of Highway 99 between Bakersfield and Modesto in Tulare County. adjacent to Fresno County to the North, King County to the West and Kern County to the South. Generally a quiet village  surrounded by farms, it is the County Seat where the Courts are located.

On January 21, 1984, Karen W. and Russell B. after attending a prenuptial dinner at Russell’s home with his parents and traveling Westbound in Russell’s VW with Karen as a passenger, was driving to take Karen home at about 45 MPH in a 55 MPH zone on Caldwell Ave. He approached the intersection of Caldwell and County Center Drive. Upon entering the intersection, which had no stop sign for Caldwell drivers, only a traffic stop sign for westbound traffic, a terrible accident occurred.

James Mc was a well respected businessman, who farmed olives in a little town southeast of Visalia. On January 21 1984, he hosted a yearly gathering of his employees at the Lamplighter, a restaurant and motel in the heart of Visalia. He left at about 11:30 PM in his Ford Bronco and was traveling Southbound on County Center, approached the intersection of County Center and Caldwell, and entered the intersection without stopping for the blvd. stop, striking the previously mentioned VW on the passenger side, causing the VW’s occupants to be thrown from the VW, resulting in the death of Karen, a 21 year old student at a local college and severely injuring the VW driver,  Russell B.

James Mc. was arrested for, and subsequently tried and convicted of, Felony Drunk Driving, driving with .10 blood alcohol, also a felony, due to the injuries and vehicular felony manslaughter, and sentenced to 6 years for the manslaughter conviction and a consecutive 8 months for the felony DUI, for a total of 6 years 8 months in State Prison.

James appealed on various grounds, and the appellate Court reversed the manslaughter conviction due to error in instructing the jury, and as far as the DUI was concerned, the Appeals Court found the sentence of 8 months to prison and the denial of probation should be reconsidered. If you want to read the opinion, it can be found in “People v McNiece 181 Cal App 3rd 1048 (1986))

I was familiar with the case as I am one of those lawyers well-trained by the old DAs in the LA DA’s Office, who required all Deputies to read the posted appellate cases as they were published encoring not only trial skills but substantive knowledge of what is going on in the legal world. As a result, I continued that habit when I entered private practice and kept a running briefing of cases as they were published. Let me explain: the criminal law field, like all other fields, such as accident (Tort) law, Domestic Relations, Tax, Corporate etc. are based generally on statutes governing the field such as the Penal Code, Evidence Code, criminal  statutes contained in the Vehicle Code or Corporations Code and so forth. generally change in some details every year, with either new legislation or amendments to existing codes. So, in my opinion, it is imperative for the lawyer to stay knowledgeable in his/her field of practice. Also, it is required by the State Bar Association for lawyers to continue studying and to maintain a certain number of hours of continuing education as a mandatory requirement to be allowed to continue one’s practice. In that regard, not only did I attend such classes, but I also was an instructor and lecturer over the years in such classes. One of the subjects I became a specialist in was Driving Under The Influence cases, including felony DUIs and Vehicular manslaughter cases.  So, it as not unusual for other lawyers to refer such cases to me. I don’t recall the source of the referral of James McNiece, but for some reason, he seemed to like my approach which consists of a standard interview for about 45 minutes to an hour, familiarizing myself with the potential client’s version of the events, getting whatever documents are in his/her possession, such as police reports, possible witnesses and things like that. Set a fee, draw up a valid contract agreement, get retained and get the retainer (generally the amount based on the case, the anticipated work, the nature and severity of the charges and the costs involved, such as investigation fees, expert fees and the like. In this case, I had to take into consideration the fact that the case was out of town, so there would be costs of room and board, travel and things like that. My fee was not small, but not exorbitant either. I really thought it would settle based on the Appellate Opinion criticizing the trial judge for a prison sentence to an upstanding local citizen with no criminal record. I could not have been more wrong.

I appeared in Tulare County Superior Court with the client (I can’t remember the time of the year but my best guess would be the Spring of 1986 or 1987, not sure and makes no difference.) Met with the Tulare County Deputy DA before court for a disposition discussion. I was hoping to settle the case for some probationary terms. No such luck, the prosecutor was adamant that the client would be retried on the vehicular felony manslaughter and get the same sentence: 6 years 8 months in State Prison and loss of his driving privileges. So, we appeared in court and set a trial date down the road before a jury.

I should explain, this case was a “cause celebre” in the town. Mothers against Drunk Drivers were behind it and pushing for a conviction and heavy punishment and planned to attend the trial and do anything within their power to see the client convicted and severely punished. Not only was MADD involved as court observers on a daily basis, but the young lady killed had been local, a cheerleader, and also a student at the local junior college. From that background, a new anti drunk driving organization was created and became a national institution known as “Students Against Drunk Driving” (SAAD.) Plus, the local press was all over the case.

OK. I had to see if there were any solid defenses to the charge. So, I needed to check on the validity of the blood draw and subsequent test. The way blood results were determined at the time was through a machine known as a Gas Chromatograph,  which is a device like a small oven that heats the blood sample until it becomes vaporized, then the vapor travels into a cylinder that can measure the amount of alcohol in the blood and translate that result to a corresponding figure with a result in this case around 0.15 blood alcohol in the defendant’s system at the time of the test; in this case about an hour after the accident, when the blood was extracted from the accused. Experts on absorption and elimination generally render an opinion in court based on the accused’s drinking pattern related back to the time of driving and give an opinion based on absorption and elimination rates as to what the defendant’s blood alcohol would be at the time of driving. There is a presumption that if one’s blood alcohol was over .10 at the time of driving one is presumed to be under the influence. Count 3 of the charges also charged this defendant to be over 0.10 Blood alcohol at the time of driving, if the blood was taken within 3 hours of driving. Sort of complicated isn’t it? Most jurors, regardless of evidence attacking the reliability of the blood test and the presumptions attendant to the test, believe if one is over .10 at the time of the test,  the accused is DUI and guilty. A DUI defense, in my opinion, is tougher for the defendant than if he was charged with murder.

However there are defenses and valid attacks on what is known as “extrapolation” (which is from the time of the test extrapolating back to the time of driving, which we will get into later in this blog.)

So the DA will have an expert, so I need an expert as well, to explain the scientific fallacies of blood tests. I am no real expert on DUI blood and breath tests, so over the years, I have gathered scientific articles written by recognized experts in the field and successfully used the articles against the prosecution experts in cross-examination, trying to show that the so-called blood alcohol science, when you get down to it, is mostly based on pure speculation, and I will also cover this later when we address the trial.

There were witnesses who heard the Bronco traveling, and based upon the sound, estimated my client’s speed was around 55 MPH in a 30 MPH area. So, I needed a local investigator, and was referred to a former lieutenant in the Kings County Sheriff’s Department who ran for sheriff against the local sheriff and lost, thus he became a private investigator. I can’t recall his name, but, believe me, he was about one, if not the best, investigator I ever used, and I have used some great ones who I will cover in later blogs. What I look for in a private investigator is a guy or gal who will cover the subjects I am interested in, but also understands admissible evidence and defenses and has the ability to be what I call a self-starter and can find important facts relating to the charges, can analyze witnesses, both from the prosecution and defense and can ferret out stuff I never thought of. This guy was just what I ordered. He was presentable, a rather big guy, but not intimidating, and was just perfect to interview both prosecution witnesses and those for the defense. In other words, he could get reluctant witnesses, generally for the prosecution, to gladly talk to him. Plus, he was the one to discover that the blvd. stop sign on County Center Road at the time of the collision was blocked by over-hanging branches and leaves to the extent that the sign was not visible to drivers, and there had been other accidents and near-misses at the intersection before the City (after the accident, in this case) trimmed those branches for purposes of vision.  So much for blowing off a stop sign.

I hired Harry Kreuper, a mechanical engineer located in San Bernardino, where he is an expert on accident reconstruction and driver’s line-sight problems regarding roads, who not only would be available to testify that the driver did nothing wrong entering the intersection, but from the driver’s point of entry, he would have had the right of way, and he also conducted experiments regarding the sound of the Bronco’s tires, which at the time was consistent to one driving within the posted speed limit.

I actually paid an Orange County crime lab chemist at a previous time $500.00 to sit down with me and explain in detail the various blood and breath tests, the expert articles and anything else, so I could effectively cross-examine the prosecution’s so-called blood alcohol experts, which I will address when we get to the trial in this case. For years, I had very successfully used Darrell Clardy, a former supervisor at the Orange County Crime Laboratory, and an expert on DUI breath, blood and field sobriety tests, and engaged him in this case to examine the blood test method used in this case, as well as the reliability of what I referred to earlier as getting a blood alcohol estimate by relating back and other things we will discuss when I get to the trial.

Enough for today: next blog the trial

Marshall

Just starting off in a new area and a new upward path to getting known and respected when all of a sudden things don’t look so good.

John T had a problem. It seemed he was accused of a serious charge, forceable attempted rape by gaining entry to a young lady’s residence and trying to force his attentions on her. He was referred to me.

His father, a fairly wealthy man, posted a large bail, and I was retained. Usual interview which revealed a complete denial, and a question of mistaken identity of the perpetrator who had a solid alibi.

Just before the case was to go to trial, I was summoned to meet with the two deputy DAs assigned to the case and was played a tape recording of the alibi witnesses (I can’t remember whether one or more of the witnesses were on the recording,) where they stated that the bottom line was the alibi was all created and false. The DAs and I talked and the blame was placed on the client’s dad. There was, after discussion, an offer of a plea with what is known as Penal Code 1203.03, where the court can send a convicted defendant to Atascadero State Prison for a diagnostic evaluation, and if the evaluation report is favorable, then grant probation and treatment to the offender after the 90 day observation period. Generally speaking, it is an unwritten rule that in most cases a positive evaluation generally ends favorably, with a sentence suspended and a probation grant, thus no prison time.

My next step was to gather all the witnesses, including the ones who changed their alibi position, and confront them with the new information. Arrangements were made.

One can never underestimate the value of a good investigator, and in this case it was John Oatley, a former Santa Ana Police officer who retired and became just a great investigator. He was what is known as a “self starter,” where you may give suggested directions on the extent of an investigation in a given case, but the investigator, on his own, creates and follows leads you as the attorney did not see. I have been successful in many defenses just on the information provided by John and other private investigators used on various cases.

So, John and I proceeded to the client’s residence to confront the parties with the new information. After arrival, with the parties all there, John smelled a rat, took out his tape recorder, placed it on the mantle in plain view of all parties, and we announced the proceedings were going to be recorded, and then, after discussion reconfirming the alibi, let everyone know what the DA was in possession of: the broken alibi recording. Bottom line: no changes and looks like a trial was to ensue.

Next day, just before the commencement of the trial, the client and his wife met with me. I cannot reveal the discussion, but the bottom line is I made a deal where the client would plead guilty, and the court, with the DA’s blessing, would send the client for the diagnostic evaluation with the understanding he would get probation if he got a favorable report, and the client could present himself to the State Hospital rather than being taken into custody and transported by the sheriffs to Atascadero State Prison Hospital, and a new date was set for the final disposition in Orange County.

Didn’t work out as expected. Before going to the evaluation, the client apparently  met with one of the local psychs and was informed that he was to go the evaluation and deny everything, which apparently he did, and when he returned for the new date with a negative report due to denial of guilt, he hired another attorney, Sam Hurwitz, a long time local and powerful attorney in Orange County, who made a motion to withdraw the plea on the grounds I forced the client to take the deal, and the client was innocent.

Well, I had never ever been attacked by a client, and learned a lasting lesson; criminal clients will go after their lawyer to save themselves without a thought.

I was new in the defense business and struggled with what is known as attorney-client privilege regarding what was said at the meeting between the client and me before taking the plea deal, so I hired Howard Harrison, one of the partners in the Rutan and Tucker Law Firm I mentioned before and followed his advice, which, looking back, was safe and cautious, but if I had to do it over again, I would have been more aggressive in what I consider professional self defense. If attacked, then fight back, including revealing any conversations between the attorney and client.

So, now we have a hearing on the motion to withdraw the plea. One of the client’s contentions was that I bullied the witnesses, the client, and his family to get them to go along with the plea deal. Thank you, John Oatley, as I saw the other side neglected to inform their new lawyer that all of the proceedings at the client’s residence were openly recorded, thus no intimidation or anything like that ever occurred. When I was asked by the prosecutor at the hearing about attorney-client conversations regarding the plea deal, the client, through his new lawyer, objected, based on the attorney-client privilege, which I have later learned was wrong, but the objection was sustained. The bottom line is the motion was denied, and the client, through his new attorney, was sentenced to one to twenty years in State Prison.

The family was wealthy and, I was later told, paid Sam Hurwitz a very large fee, and Sam took the case all the way to the Supreme Court, where, of course, they lost there as well. People who were present during oral argument told me the Chief Justice, Don Wright, commented that he knew me personally from my days as a DA, and he would find it hard to believe I would ever pressure a client into a plea. And I tell you, the reader, I never would.

However, as one can imagine, it was stressful. Here I was pitted against a very politically powerful attorney in a new venue, just getting successfully started, and my very credibility was being attacked by a long-time well-known attorney, and thank goodness they were unsuccessful.

Every time I think of that experience, I get ticked off!

There are two types of criminal defense attorneys, both good. There is the bleeding heart who advocates, no matter what, do nothing to harm a client, and the other which is me: do good work but, when wrongfully and dishonestly attacked, don’t hold back.

Marshall

it all started at Bob’s Big Boy, a diner on Harbor Blvd. in Fullerton, located near the North Orange County Courthouse. Three local boys in their twenties allegedly met with a young drug importer from Ecuador, and they arranged for the Ecuadorian to import a large quantity of cocaine to be purchased by the locals and distributed in the area. The location of the importation was the port in Miami, Florida, where the goods would be shipped in and then handed over to the Fullerton locals at that location. The deal went sour as the Narcs (DEA Agents) got wind of the action, and when the dope was unloaded and ready to be exchanged, the Feds swept in and arrested the lot of them. The prosecution for conspiracy and possession for sale was to be tried in Florida, but things went a little screwy, as the Ecuadorian, a martial arts expert, managed to escape from custody, and I was told he was able to overcome the Narcs, and get the hell out of town. Thus, a manhunt was precipitated to recapture the importer.

So, one day, a very pretty young lady came to my office with her mother and asked to see me about a Federal matter in Los Angeles. Both were very petite with lovely features, but just by looking at them, I knew they couldn’t possibly afford me or any other practitioner, and would require the services of the Federal Defenders Office, who represented indigent defendants unable to afford the services of a private attorney. So, I was prepared to listen to their problem regarding the Federal Indictment, quote an appropriate fee, and when they demurred, recommend the government defense lawyer. I couldn’t have been more wrong.

The young lady, rather attractive, appearing of Mexican or Latina descent, was about five feet tall, with outstanding features, and her mother was a little older version of her daughter. Well, she was charged with what is known as an accessory after the fact, a criminal offense under Title 18 of the US Code, carrying substantial prison time, if convicted. The government’s case was based upon a claim that she was the girlfriend of the Ecuadorian, and, after he escaped from the Feds, he came to California, and she hid him out from the authorities to help him avoid capture, trial and prison. There, I determined perfect defenses to the charge. She was not Latina, but a member of the Agua Caliente Native American Tribe that owned about one half of the land which we know as Palm Springs, and that land was squared off with other land, so if one wanted to develop a resort, golf course or what have you in Palm Springs, a large part of the parcel belonged to the tribe, and the tribe had barrels of money to support any member who needed funds.The tribe’s lands were “checker-boarded” throughout this area, so even if one managed to buy a plot, the land around it was usually the tribe’s. ( I might mention, I think they also owned casinos.) So payment for attorneys’ fees and expenses was not going to be a problem;  I was hired and the young lady was aboard the Schulman defense team. This was just the beginning.

The case was assigned to the Honorable Andrew Hauk, and set in Downtown LA. Orange County did not have the fancy courthouse that is located there today, but was known as a designated place of sitting under the auspices of the US Attorney for the Central District of California, whose jurisdiction ran from Santa Barbara at its North through Los Angeles, Orange County, and then gave way to the Southern District, which was San Diego and Imperial Counties. Orange County had a small temporary facility located in Santa Ana with a small courtroom and some facilities, but no cases after first court appearances before a Federal magistrate were tried there, but were sent to LA or further proceedings though it was conceivable a case could be tried in Santa Ana.

So, at my first appearance before Judge Hauk, I made a request that the case be transferred to Santa Ana, as the first case to be tried in the new place of sitting as Santa Ana was then known. I mentioned in an earlier blog, there was a book written about five judges designated as the most eccentric judges in the US, and I have been in front of two of the five, Willis Ritter in Utah and Judge Hauk in LA. They were very smart, but unpredictable.  Well, Judge Hauk was intrigued with the idea of being the first judge to ever preside in a federal trial in Santa Ana, and maybe he also liked the idea of staying in Newport Beach during the hot inland summer, one will never know, but he granted the motion and sent the case to Santa Ana, to be tried, and he would preside. I should mention the motion to move the trial was vigorously opposed by the US attorneys Office in LA, as it seemed they did not want to staff another location.

So, because the US Attorney wanted no part of a trial in Santa Ana, they dismissed the indictment and filed a superseding Indictment adding my client to the Florida conspiracy indictment of the Ecuadorian boyfriend, and the three Fullerton young men who had been previously charged in Miami. That case was assigned to the Fort Lauderdale Federal Court.

In order for an out of State attorney to represent an accused in a local court, the retained attorney must file a motion to request to be admitted to the local court, setting out his background, lack of prior disciplinary issues and proof of good moral character. Permission to appear out of state is not automatic, and there are generally other rules, such as engaging a local attorney so that if for some reason the out of state lawyer is unavailable for a hearing, a motion or any required appearance, there would be someone available. It is not automatic, but a defendant’s right to employ his attorney of choice is a Constitutional Right, but not absolute, but weighed against the Court’s right to maintain its order, which is also considered. I have never been denied an admission to appear in an out of state court, but just last week I read  an opinion of the 9th Circuit affirming a denial of a chosen attorney which was upheld, based on factors about the attorney’s past conduct in various courts.

A whole new situation, and a whole new charge with increased sentencing consequences now faced my client based on the dismissal of the original indictment of accessory to a principal in the main conspiracy. I felt really bad about the change of circumstances and did not anticipate the Government’s move, particularly where I never saw the connection to the original conspiracy, and I was right as far as I could see.

Unfortunately, things frantically changed, and  I would now need to fly to Florida by the then-known-as Pan American Airlines, which had a fleet of clippers with an extended first class section, also a place to stay while in Florida; I selected  a Marriott Resort Hotel located adjacent to what is known as the Inland Waterway, sort of a canal or stream flowing from Florida all the way up the East Coast, through New York, up to the Canadian border (people could drive their yachts and cigar speedboats right up to a dock adjacent to the hotel’s outdoor cocktail area.) So, arrangements were made, a fee renegotiation was approved and now I was in Florida ready to fight for my client.

The Federal Courthouse in Fort Lauderdale was, I am told, a new structure and the locals were really proud of it. Now, I am used to Federal Courthouses in California, elegant and impressive structures. Actually, the circuit Court Building in San Francisco is one, if not the most, beautiful and elegant structure I have ever had the pleasure of seeing. A guided tour through that building, with its courtroom shell and beautiful lighting is worth a tour. Well, I wasn’t that impressed, but it was OK. Fort Lauderdale at the time was a winter break spot for young college kids and the seashore area was very elegant, but a few blocks off the resort area and you are in the Deep South; I don’t know how to write Southern accents, but that is what I perceived the communication to be in.  I was treated OK and with respect. One of the other defendants was represented by a colleague, Ron Kreiber, also from Orange County. Ron originally was a Los Angeles Police Officer. I am not sure if he was a sergeant or lieutenant in charge of a patrol unit, but he put himself through law school, joined the Orange County DA’s Office, eventually went into private practice, represented a lot of drug dealers and other defendants and eventually became a Superior Court Judge and did a darn good job. So, with Ron, I was not alone whenever I had to fly to Miami, get a car and drive North to Fort Lauderdale. We actually had a little spare time and managed one weekend to play a round of golf in Boca Raton, which is just North of Fort Lauderdale on one of Florida’s magnificent golf courses.

So, there were appearances and motions and a trial date was set. The first thing I did was to make a written motion to transfer the case back to California for the convenience of witnesses; after all, the bulk of the defendants and witnesses resided there, and I thought it should be granted, and all the defendants later joined in my motion. I can hear the judge today as if it as yesterday in his broad Southern accent.”Hay, Mr Schulman, that is ah most interesting motion, howevah,  Ah have nevah granted such a motion, albeit interesting, it is denied.” So let’s go to trial. Time passed and like ten-pins, all the defendants, separately and on different dates, worked out some disposition and then pled guilty. All except my client and me. So the case is ready for trial. I appeared and was ready to go, when the Assistant US attorney, who was about to go into private practice and had never, I was told, lost a case, suggested to me, “Why don’t you remake the motion for transfer to California?”  “I don’t have an office or facilities to make that motion at this time,” I say.  “That’s all right; just do it orally,” he says.  So I do.  The judge says, “Mr. Schulman, I have nevah granted such a motion, but Ah will in this case. Please make out the paperwork for the tranfah,” and I went back to my office in Orange County, drew up the paper work and we were now back where we started in front of Judge Hauk, and set for trial.

Trial, a jury is selected, the Government chooses a jury, and I do the same. The Government makes an opening statement, and I counter with mine. In my opening statement, I tell the jury my client is a Native American and does not speak a word of Spanish, implying that the original deal was not in English. The government calls its first witness, a Fullerton police officer, who testifies about various conversations they were recording and listening to. I cross-examine: where are the recordings? and the witness replies he does not know. The Judge, who had been eyeing this waif of a defendant, and knowing the mandatory sentences if she is convicted, takes over. The witness gets a little snotty with the judge, who then starts screaming at the witness, and declares right then and there: “The defendant is found not guilty!” and dismisses the case. I quickly congratulate the client and the mother, and we race hell-bent out of the courtroom so the judge doesn’t change his mind; the poor mother lost the heel of her shoe and was quite a sight, limping at full speed out of there! Later,  I went back to the government attorney, just to do a little PR work; after all, he wasn’t to blame and was informed his office was looking for the right case to take to the Supreme Court to do away with the rule: Even if the court is wrong, jeopardy attaches if the case is dismissed or the jury is dismissed for the wrong reason., meaning that the government can’t continue to try you over and over again, even if they get it wrong. I went into my begging mode, which is sometimes standard operating procedure for a defense lawyer in some circumstances, the government let it pass, and the petite young lady from the Agua Caliente Tribe was free as a bird.

A fun experience for me, seeing and being part of another piece of America. I would never had the encounters I forgot to mention: sometimes during the evenings, I could go to a dance hall just two blocks inland from the Hotel and have a belt or two and watch Southern clog dancing to country music. Boy, could those folks really dance. Hard to explain, but they were like professionals, even just dancing their local dancing. The place was appropriately named “Whiskey Creek.”

Bye, Marshall

I have been thinking about Orange County and the growth of my practice, including what I think is the road to success and how it can be achieved

In the beginning, it was rough, but if one is lucky enough to be in the right place at the right time and is able to capitalize on the circumstances, one can do very well. When I first started in practice with Ralph Dixon, I was not overwhelmed with cases. Actually, what with business and personal family expenses, if I did not start getting some good paying cases, I might have had to either go back into the LA DA’s Office or maybe stay in Orange County and join up with the local prosecutor’s office. There was not enormous competition between criminal lawyers as there were about 6 or 7 rather good ones and plenty of business to go around. From my observations as a prosecutor, I could not figure out why some really good criminal defense attorneys in LA, and I came across over the years all of them, why they would not join a government office, either as a public defender or prosecutor, and get a decent salary with your retirement and a pretty good pension plan, but they did. From my view as a DA, I say Joe Rosen, who was appointed on conflict cases and paid out of Court funds, was the lawyer I would have personally hired if I was ever in trouble. I had several cases against him, but one was memorable, not for the facts, but for the lesson I learned in the case. It was a run of the mill burglary case, the crime and the defendant’s admission to the LAPD detectives, but would not plead guilty, so therefore got a jury trial. So, I was put on the case with the victim testifying to the break-in, and the items stolen. (none recovered, and then the police investigator testifying as to the defendant’s statement connecting him with the crime, just standard operating procedure.) The cross exam by Joe Rosen, first attacking the so-called admission, developing that there were earlier statements, still about the same as the one testifyed to earlier, but Joe persisted and, guess what, it turned out there were earlier statements by the defendant completely denying his guilt in every way. Then the defense established in its case that the defendant was hammered with threats as to what would happen to him if he did not admit the crime. Verdict- not guilty, and afterwards, I asked Joe what possessed you to keep digging into the subject of the admission, when each time, and there were about three or four corroborating admissions until the last one, and the response taught me something I will never forget, which was basically “when you are in deep doody, it doesn’t matter if the crap is just over your head or whether you are six feet deep, you have nothing to lose,so  if you continue, you might be able to ferret out something good.” Earlier in the last blog, I mentioned it is almost axiomatic one should not ask a question unless one knows the answer, but no rule is hard and fast, so if you have nothing to lose, you might as well go forth and see if there is anything that may help a dead-bang losing case.

So, in the beginning, I was hoping to get referrals from civil lawyers and develop a good practice. What I noted as a prosecutor, was that the criminal defense lawyers that were good and also financially successful were the ones who got their clients through referrals from civil lawyers who did not want to touch criminal cases. So, how do you do that in a new place where you are relatively unknown to the civil lawyer bar or firms Like John Dillenger, the famous bank robber?  Go where the money is. That is one of the things I did. To start, I rented from the largest civil firm in Orange County at the time, and did receive a few references, but the bulk of their referrals went to a long time local criminal defense lawyer. Well, one day, one of the civil firm’s important clients was in jail based on a DUI arrest, and the lawyer who got the bulk of the referrals, (and those cases were very lucrative,) was unreachable; I think he was in Las Vegas, gambling, so I was called, got the guy out of jail with a phone call, and thereafter, got the bulk of the firm’s referrals, which propelled me to a successful practice. The moral is to be available, or if you are out of the area, still be reachable and have someone go over for you. Also, to get to know the bulk of the civil lawyers, get active in the State Bar Association as well as the local bar such as the Orange County Bar Association. As it turned out, though my motive in the beginning was to get business, I soon loved it and became what is known as a “Bar Junkie.”

I started out in the Administration of Justice in the local bar and actually eventually became a member of the local bar association’s Board of Governors. Worked hard for the organization in various ways, and also there was a separate organization called the “Orange County Bar Foundation,” of which I eventually became chairman of the Board. That organization sponsored a program called “Head Start,” taking over referrals from the Juvenile Court of young offenders and try to start the kids in the right direction and keep them from becoming involved in more serious criminal offenses, There was a full staff hired to accomplish the task, and, for the most part, it was very successful. At the time, I was Chairman. I managed to corral partners in the very large civil firms, and they could get things done. Ran golf tournaments and other types of activities to finance the project. As far as I know, the Foundation is still running full throttle, and is sill very successful. Then there was the State Bar.

At the time, each local bar association had a loose confederation and would meet once a year at what was known as “The Conference of Delegates,” where a group local Bar would be delegates at the State Convention, known as the State Bar Conference, alongside with the State Bar, a separate entity that governs and licenses all attorneys. At the convention, the local bar associations, through their delegates, recommend to the Board of Governors of the State Bar resolutions covering various fields of law. In that regard, I am proud to say, I drafted and argued a resolution which dramatically changed the law involving possession of illegal drugs, marijuana, cocaine, etc. At the time possession of just a little bit of marijuana was a felony punishable by state prison. Marijuana was known as “The Devil’s Drug,” and a first time offender generally got probation, but would have to serve 90 days in jail as one of the conditions. Well, after being placed on a special committee to look into the subject, and after learning about the drug, I changed my original thinking and recommended the local bar association approve a resolution I drafted to divert a defendant charged with simple possession out of the Criminal Justice System to the mental health system, and, if successfully completed an education class on the subject, and remaining free of arrests for 6 months, the case would be dismissed and the subject could say they have never been arrested or convicted of the charge, and the arrest was converted to a detention. I presented the resolution to the Conference of Delegates, spoke on what it meant and why it should be approved, and it was, and then the State Bar Association presented the proposed statute to the legislature, and Marshall’s proposal and recommendation was enacted into law and is used today known as Penal Code Section 1000 et seq. I am proud of my efforts, and nobody really knows today that I was the origin of the diversion programs contained in the modern-day penal code originally enacted in 1972, over 40 years ago

Think of all the young adults who no longer face the stigma of being known as a felon because of my work!

Another State Bar Activity I was intimately involved in was Specialization. As a prosecutor I first got the idea that the practice of law was becoming more and more complicated and believed that, like the medical profession, there should be lawyers who could hold themselves out as specialists in various fields, such as civil trials, domestic relations, probate and trusts, tax attorneys, etc. Well, the State Bar started many years ago a pilot program naming tax, probate and trusts, domestic relations and criminal law. A board of directors was created to run the overall project, with each proposed specialty having what is known as a committee of the specialty, such as “The Criminal Law Specialization Committee” and so forth. In Criminal Law, several of us were “grandfathered” in as specialists by submitting our background and getting approved by the Board, I being one of them. (I might add at this time not all really good and qualified attorneys wanted to be known as a specialist, one reason being they would be held to a higher standard of care and expose themselves to a higher risk of malpractice. I respect, but do not agree with, that concept.) Anyway, after several years, the pilot program was put to the State Bar Board of Governors to make the program permanent. At the time, I was the chairman of the criminal Law commission and my term was about to expire. So, the Board continued with me as chair for another term in order to push it through. There were a couple of State Bar Board members who opposed the program, believing if you are a lawyer, you can practice in any field of law. I knew the two very well, as we were all members of the American Board of Trial advocates known as ABOTA, but that made no difference. So when a hearing came up and the issue was raised that the criminal specialty lawyers did not have to take an examination, I countered with we will take the damned exam and it passed, but I and other grey-haired older advocates sat down with our typewriters and with over 30 years from my last test, I took the exam and passed. I termed out and Peter Keane, former assistant SF Public Defender and then either a professor or Dean of Golden Gate Law School, took over as Chairman of the  Criminal Law Commission and I was a specialist for over 40 years, certified as such by the State Bar and proud of it.

So with all my contacts locally and statewide, I did very well in private practice, handling a multitude of cases, from misdemeanors to murder.

More to come

Marshall

Writing a blog is fun or me, and gives me something to do. Try to think ahead because someday you will be faced with the prospect that you can’t do what has consumed you for all those many years, and suddenly you are “old hat” and out of the professional loop. No more meeting your colleagues for breakfast, or drinks after work and just gossiping about those things that interest each other, preparing for court, trying cases, motions and the things that make you what you are. Get an outside hobby, or you are going to feel very much at loose ends (Just my thoughts, lots of people look forward to doing nothing, but I am not one of them.)

I won’t be blogging every day or week, so just check in and see if there is anything new.

I have been thinking lately about lawyers who are reputed to be smart but I can’t figure out why some dumb things are done by them, such as the wrong theory or question etc.

I mentioned Mel Belli on my last blog. After the Rosoto trial, Seymour Ellison, the associate that Belli sent to represent Rosoto, told me that Mel Belli had some homicide cases that needed work and wondered if I would be interested in joining their firm in San Francisco to handle the cases which were centered in San Francisco’s’ Chinatown, and I felt flattered for the opportunity, but after consulting with our presiding judge, Bill Murray, in Orange County, I was advised not to consider the position and declined. I might mention there were two incidents that sort of cemented the decision. First, I had the opportunity to observe part of a defense tactic in which Mel Belli was representing a chiropractor in LA charged with second degree felony murder. The  case against Dr. Phillips was based on an interesting concept of felony murder, namely, Dr. Phillips convinced the parents of a young girl, about 6 years old, as I remember, who had developed a cancerous condition in her eyes and was receiving treatment by doctors selected by her parents, to take her out of the hospital for some other treatment for the condition, Iodine drops, which, of course, was false and her life was shortened. Though her doctors couldn’t have guaranteed success, there was no doubt that her life was shortened.  Sadly, the child expired from the treatment of Iodine drops shortly after she abandoned her regular doctors. The prosecution’s theory was Dr. Phillips used a treatment that would never heal the child and received money by means of theft by false representation. There is a doctrine in law that if a death occurs as a result and in the commission of a felony, then malice is presumed and the crime is murder. If the felony is a serious one, such as robbery, child molestation, forcible rape, in which one can expect a possible death occurring, then it could be murder 1st, and if a lesser aggravated felony, then it would be murder 2nd degree, which does not call for the death penalty. Anyway, I observed the child’s mother who had testified as to how the family was talked out of staying with the present treatment and to hire and pay Dr, Phillips. Then, on cross exam, Belli, through his investigation, discovered the mother had hired a lawyer and was suing Dr. Phillips for an undisclosed amount. I might mention the complaint, I believe, was not signed by the mother. So, cross-examining by Belli, went something like this: Belli: you are here to bolster your lawsuit against Dr. Phillips? Answer: No, Mr. Belli. Belli: I have a complaint asking for damages. Did you authorize the complaint? Answer: No, Mr Belli. Belli: Well, didn’t you hire the named lawyer? Answer: Yes, Mr Belli I did. Belli: And here is the complaint. Isn’t that the lawyer you hired? Answer: Yes.  Belli: And aren’t you asking for a lot of money in this complaint? (Now here comes the clincher: Answer: I have never seen this document; I did not sign it, and I told the lawyer all I wanted was the medical fees paid to Dr Phillips and that was all.)  Phillips was convicted of felony murder 2nd degree based on the presumption of malice as a result of the felony: theft by false pretenses and later appealed. My observation of the jury at the time seemed to tell me the jury was not at all happy with Belli attacking the mother.  The point of this is too many lawyers ask questions not knowing what the answer is going to be and often get a terrible result for their client by asking the wrong question. In the end, The State Supreme Court reversed the conviction based on a legal principal that Phillip’s fraudulent representation was a statutory misdemeanor, not a felony, so no felony murder applied. This was a 4 to 3 decision with 3 dissenters.  Today, this kind of fraud cannot be the basis for felony fraud, because theft by false representation in not inherently dangerous, and the felony itself has to be such that the defendant could appreciate the risk, such as a felony DUI causing injuries in which the perpetrator  would know the danger of drunk driving when he gets behind the wheel of his car after excessive drinking.

So, I don’t know the final result of the Phillips case, but you can read the opinion and dissent by Googling People v Phillips 64 Cal 2nd 574, case decided in 1966.

This axiom of trial work goes both ways. Take the O.J. Simpson case as an example. Prosecutor Darden decided to take a chance and asked OJ to try on the bloody glove found at the scene of the murder of O.J.’s wife without knowing what the result could be and gave OJ the opportunity to say to the jurors “It doesn’t fit.” (leather shrinks over time; it well could have been OJ’s, but we will never know, and OJ’s lawyer, Johnny Cochran, capitalized on that mistake in his closing argument: “if it don’t fit, you have to acquit,” and the jury did.

Also, I question the defense of Jack Ruby for the murder of Lee Harvey Oswald, the murderer of President Jack Kennedy in Dallas, Texas. Basically the defense chose a psychiatric defense that Ruby was in a sort of semi-unconscious state and unable to contemplate what he was doing, called a psycho motor fugue state and could not form intent but was acting in that state. You are going to have to show me any case that was won by that defense. I first encountered that defense in an earlier blog where I discuss the Darrell Kemp murder case where that was the defense, and it did not work for the defense then and it did not work on the Ruby case. A better defense could be  to show how torn up  Jack Ruby was, being a transplanted Texan, and after watching the funeral, he became so wrapped up in the murder and the disgrace to Dallas, a city he loved, he could not be himself. Would not get Ruby off, but maybe a lesser offense of manslaughter. All the prosecution had to do with the psycho motor fugue state is to cross examine the expert psychiatric witness by asking if the defendant gets a gun, goes to the location where the target is going to be, waits for the opportunity, shoots the victim and then says ” I shot the son of a bitch!” ” is that what you mean by being unaware of his acts? I did much the same in the Kemp case, stringing out all of the defendant’s conduct. Jury did not buy the defense and they shouldn’t.

Prosecutors and defense attorneys have basic rules. The DA is demanding the jury do their duty and convict the bad guy, and the defense is begging to let my poor wrongly-accused guy go. I believe to have a good chance of getting a defense verdict, it important to get the jury to like you and, if possible, also your client. When jurors are first introduced to the courtroom, and see the defendant, most believe the defendant guilty, and when told what the charges are, the presumption of innocence is a fiction and most judge that had the defendant not done something wrong, he wouldn’t be there, and they, the jurors, are there to convict. Many lawyers don’t understand that mentality and don’t know how to deal with it. On every trial, I write on my notepad at the very top, two things. First is: be nice and second: be conversational. As a prosecutor, I did the same. Jurors like professionalism in their attorneys, not bombast. The most deadly prosecutor is the one who is professional, respectful but very thorough. Every time I tried to emulate someone else’s style, I would fall flat on my face. One of the bottom lines is be yourself.

Some examples, I remember:

Al Forgette who actually went to my high school and one year ahead of me, and played tackle for the football team, ended up practicing law in Orange County. He was a big burly guy with a disposition of one of the nicest guys in the world. I watched him once selecting a jury, and he could not have been more friendly, likeable and persuasive. So, In a DUI defense case, I decided to emulate Al. I thought I was doing OK using that style, but as I was questioning the jurors I noted or felt some antagonism. So I asked the jurors if any resented my approach and a hand shot up telling me he did not like my approach. I thanked him and asked if anyone else felt that way and about a dozen more hands were raised. I looked pitifully at the judge who saved my butt by excusing the whole panel and we started over with me being me and a successful conclusion for my client. Another example is when I was a prosecutor and had a pretty good case. So Joe Bush, who I mentioned earlier as a DA colleague, had a style of letting everything out in opening argument and demanding the defense answer the unanswerable points he established with a very short closing. So I decided on what I thought was a good “slam dunk” prosecution to adopt Joe’s style to see how it worked when my usual style was a short opening covering the crime itself and the evidence supporting the proof of the case and slam home in closing the credibility of the defense and witnesses. So I did a Joe Bush opening: Strong on everything and then demanding answers from the defense. I have to say I did not lose any cases in my almost ten years as a prosecutor and I remember the details of each one. In this case the defense attorney was Manny Valenzuela, a very competent defender, who stood up and told the jury, I am not going to spend time answering all those questions; I am going to talk about the case and why my client is not guilty, leaving me with nothing to add in my closing. Verdict: “Not Guilty.” You have to be yourself and what works for you. If you try to be someone else, the jury will smell it out and give you no credibility.

There are lots more trial suggestions, but that is enough for today.

Next I will want to talk about Orange County in the 60s and up to today

Bye

Mel Belli was probably one of the best-known attorneys, if not in the nation, surely in California. He was known as “Mr. Tort” for his work in accident injury tort cases and some criminal defense as well. He had an office on Montgomery Street just South of Broadway, next to one of my favorite restaurants in San Francisco, “Doros,” with the then-famous “Ernies” just across the street. Both establishments are now gone, probably due to a change in attitude regarding culinary tastes. Mel’s office was right on the street, with large front windows allowing a passerby to see the great man at work. Well, the Rosoto, Vlhovitch and Franklin case was now set for trial with the only issue being: do these guys get the death penalty for the Simpson murder? Joe Rosoto hired Mel Belli to defend him, but he did not get the great one; he instead got one of Mel’s associates, Seymour Ellison. Probably for the best, as we will talk about Seymour Ellison, who at the time, was a decent criminal defense attorney.

Vlahovitch somehow or other had a really good defense attorney connected to The American Civil Liberties Union, (ACLU) who spearheaded the previous appeals and because Franklin’s former attorney, Sam Frizen, had been appointed a judge of the Superior Court, I ended up with Franklin.

The original prosecutor was the Assistant DA of Orange County, who at the time was considered an outstanding prosecutor (so I thought at the time). He eventually became  the DA of Orange County and ended his career as a Superior Court Judge; for some reason, which I never figured out, he and the whole Orange County Office were recused (means kicked off) of the case and the Attorney General took it over. Two very good prosecutors were assigned to try the case; their names were, Al Harris from Northern California and Gordon Ringer from the AG’s office in LA. I did not know Harris, but Gordon Ringer and I went far back, as Gordon had handled several appeals and was the appellate lawyer on several of my cases. I should explain, all direct appeals, to either the District Court of Appeals or to the Supreme Court, are handled by the Attorney General’s Office from any and all the various DA prosecutions throughout the State.

The first thing I did was review the transcripts of the earlier trials and motions to familiarize myself with prior testimony and at the same time confer with my client as many times as necessary, plus drafting and filing what is known as “Discovery” motions. Basically I wanted to make a motion asking the government to allow me to see all statements of witnesses and their names and addresses, written, oral or otherwise, physical evidence to view, and, most importantly, what is known as “Brady” material cases on a US Supreme Court case called “Brady v Maryland,” which obligates the prosecution to provide all evidence, written or oral, that would be favorable to the accused.  Actually the prosecution has an obligation to provide “Brady” material, even if not asked for.

The two new prosecutors were honorable men and complied with my request, and, wow, you are not going to believe what was given to me!

Remember the bulk of the prosecution’s case was based on the testimony of Joe Rosoto’s half-brother Michael, who claimed he was told by Franklin and others that Joe hired the killers to kill the Simpsons so he could get away with the robbery of The South Seas restaurant and cocktail lounge? Mike testified he was not receiving any benefit from his testimony, but he, in effect, was testifying because of the nature of the murder and his wanting to do the right thing. Well, the prosecutors gave me a recording made before the trial of an interview of Michael and guess what? The recording is an interview by the lead DA investigator from the Orange County DA’s Office, attended by the prosecutor, whom  I have mentioned earlier, and also an investigator from the Anaheim Police Department. The tape was being played to me by the DA’s electronics guy, Freddie (forgot his last name.) It starts out with the usual identification of the parties present and is conducted by the investigator, and then something like: “alright, now you are going to tell us what you know? and Mike responds in substance: “OK, now if I help you guys you will take care of my pending LA Market Robbery case?” With that, one can hear a very distinctive “click.” Then the tape proceeds with: “As long as you tell the truth, we will see what we can do.” With that Mike comes up with his story, and, at the end, another exact same distinctive “click.” “Freddie?” I ask. “What was that last click?” He answers:  “It’s when the tape is turned off.” (“BINGO!” I think, “This probably is enough to get a favorable verdict,” and, as it turned out, Mike had been involved in several market armed robberies, one where he actually shot or discharged a firearm. But that was not all.

Next, I get a tape where Mike is interrogated in the State of Washington, and guess what? Mike originally named as the hired killers two cousins and guess what again? He was put on a polygraph and passed.

Still more I discovered from Michael’s naming his two cousins; that information was presented to a Grand Jury, which indicted the two cousins, and, when it was time to arrest the alleged cousin killers, they were, and had been, in Sicily, and could not possibly have been involved. A Grand Jury Indictment does not become published until the accused is brought to court, so the indictment was secretly withdrawn, and the former defense lawyers were never aware of the false naming, indictment, and its withdrawal, or at least no one brought it up during the original trial, which is hard to believe. Furthermore, it developed that my client, Franklin, had an altercation when he just previously beat the crap out of Michael, which could well be claimed that Michael named Franklin out of revenge. Also, I learned through discovery that the Washington police arrested Franklin on some charge in order to place Michael in the same cell, hoping to get some admissions from my client, Franklin, to no avail. And, guess what? Michael’s Grand Jury Testimony, the tape of Michael naming his two cousins, the Grand Jury Transcript, and the polygraph tape of Michael all disappeared and just were not available.

In addition, my client had an iron-clad alibi for the time of the murder, as he was in Washington State at the time attending and playing football for the University of Washington, and these witnesses were available and willing to and were subpoenaed for the trial. Sam Frizen had asked them to appear at the trial,and he also asked the DA’s investigators for the Anaheim Police to meet his witnesses at the LA airport which they did, but they were put on the next plane back to Washington rather than face possible arrest and prosecution for false testimony. At least that is what I was informed. There was other stuff, but the above is enough to certainly raise a reasonable doubt, and in my case, a belief of actual innocence. Remember, these guys were 20 minutes from death before there was a stay of execution, plus before they got a new trial on the penalty stage of the proceedings.

After discovery and preparation for trial, a jury was to be selected. We were assigned to the Courtroom of the Honorable Warren Ferguson, a smarter or fairer judge could not be found, and this was his last State Court case, as he had been appointed to the Federal District Court and later to the 9th Circuit Court of Appeals, where he eventually took Senior Status, and a short time back  passed away. Well, we started to select the jury and before a jury is selected the attorneys get a chance to inquire of the jurors to ferret out any bias or prejudice or reasons why they coud not sit, such as opposition to the death penalty or the reverse: if a 1st degree killing- always a death sentence. I took the lead, and after several hours of questioning and emphasizing, not only is the death penalty unwarranted, in this case regarding my client, I let the jurors know I was going to show my client is factually innocent of the murder he was convicted of because of false testimony, hidden testimony and past perjury and subornation of perjury by past witnesses and the former prosecutors

To finish after my juror questioning, the two attorney generals moved to take the death penalty off the table and submitted there were no longer any issues, the jury was discharged, the Judge imposed a life term on all the defendants, and that as it as far as that stage of the saga,but it did not end there

Remember, I am brand new in Orange County, and the Orange County DA was well-known and respected. However I was vocal about the withholding of evidence and my relationship with the DA was icy, and strained but cordial. Nothing ever happened to him regarding the withholding of favorable evidence. I recall asking Sam Frizen if he was aware of all the new discovered evidence as none was in the file given to me, and my memory is that he denied such knowledge. We did not stop there. A Writ of Habeas Corpus was filed on behalf of all the defendants alleging “Brady” violations, and hidden evidence. The Supreme Court appointed a special master to hear the Writ and report his findings to the Court. We had a hearing, evidence was presented, among which Sam Frizen testified he was aware of all the evidence, but chose not to use it. I immediately told Paul Posner, who brought the motion now to declare a 6th amendment violation as no competent attorney would fail to bring out in trial the strong impeaching evidence as an added ground along with the perjury in a Capital trial. Further I testified to what I believed Frizen told me as well. Looking good. And it was. The Special Master found that the DA’s Investigator committed perjury several times and the Orange County DA, if he did not suborn perjury, came close to it and recommended a new trial for all the defendants

Looking good, but ended badly. In those days, in order to show ineffective counsel, a trial had to be reduced to a farce or a sham, and if the lawyer has any theory, no matter how far-fetched it’s OK. Today it is conduct below normal standards, a far less burden. Whatever, to my amazement, the Supreme Court said they do not have to accept the Master’s recommendation and denied the writ and that was that.  The opinion can be found by googling: InRe Rosoto 10 Cal 3rd 939 decided in 3/18/1979

Vlahovitch was paroled, and as mentioned earlier, partnered as a bail bond collector with Ernie Loez who I prosecuted earlier. I remember that during the Court proceedings, Vlahovitch kept admiring Deputy Attorney General Al Harris, his appearance and particularly his suits. Pissed me off, as here I am trying to save these guys from execution, but newly in private practice, I barely had a wardrobe,  one cheap suit and one sports outfit. Joe Rosoto also was paroled, and Franklin was eventually paroled. After Franklin was released, Joe Rosoto was murdered by what appeared to be a head smashing with something like a baseball bat. Maybe Franklin, the last to leave prison, may have thought Joe could have taken him off the hook; we will never know. I used to receive from Franklin’s mother for several Christmases $50.00, which I returned with a thank you.

The bottom line, at least those guys were not executed, thanks to me, and in my opinion, this is a good case to support the abolition of the death penalty. (That still is not my position, but there are a lot of cases of innocent people being convicted.)

Marshall

 

 

 

Well, I am now on my own, sharing office space and a secretary with my friend and former client, Ralph Dixon, in Santa Ana, subleasing from the only large law firm in the area, Rutan and Tucker. Got the intro to the firm from Judge Walker, who I have previously mentioned, whose son Wes Walker, was a new lawyer and associate of the firm. Advice given to me by the good judge was “don’t go where you’re not wanted,” translated to mean: don’t push yourself into the social circles, but just stay as a lawyer that does good work. Remember restrictive covenants against Jews still ran with the land.

The county was nothing like it is today; it was very rural, generally fitting in with the definition of  “cow county.” Orange County was correctly named, as acres of land were covered with orange groves, and when orange blossoms appeared, the perfumed aroma was delightful. Traffic was sparse, and it was easy to drive around without congestion. Today, everything is built up, tall buildings and no empty space, and the orange groves are all gone, giving away to development.

My reputation followed me, and I had no trouble melding into the legal community. The population of the whole county was under one million with just a handful of criminal defense attorneys, so I had a good shot at getting cases, but it wasn’t as easy as I had hoped, a few referrals from LA lawyers and some Court appointments, which did not pay very much. But I was starting. Had a murder re-sentencing assigned and did OK. Then  came the Rosoto case.

Basically Joe Rosoto had been charged, together with his brother Michael Rosoto, and two other guys, with the armed robbery of a restaurant and cocktail lounge called The South Seas, located in Anaheim, just east of Disneyland on March 9th, 1957.  Two years later, in 1959, Lester Simpson and his manager and wife were returning home from the restaurant and  were met by a described tall thin man armed with a shotgun, who approached the Simpsons and blew Mr Simpson apart, killing him, while he also shot Mrs. Simson’s left arm off, but she survived. (Joe Rosoto later was acquitted of the South Seas Robbery.)    Eventually, the Orange County DA’s Office put together enough evidence to charge Joseph Rosoto, Don Franklin and John Vlahovitch with the murder and conspiracy to commit murder as well as the attempted murder of Mrs. Simpson.  The case went to trial with the defendants denying they were there, the theory being that Joe hired Franklin and Vlahovitch and a third person, the shooter, to kill the Simpsons in order to stop them from testifying against Joe. They were all convicted and sentenced to death. The case went up to the State Supreme Court and, as affirmed on appeal, sent back for execution. You should read the opinion which sets out the acts heading up to the conviction. All you have to do is google 58 Cal 2nd 304. The case is lengthy with many issues, such as a denial of the attorney’s request for a continuance, denial of separate trials and sufficiency of the evidence for some examples. So the defendants were set for execution, but about 20 minutes before they were to be gassed to death, there was a last-minute stay because the defendants claimed the main witness against them lied and so did his girlfriend, but the Supreme Court, after reviewing the hearing testimony, said no dice, you stay convicted, but because a new case became published disallowing certain evidence submitted on the issue of life or death, the State Supreme Court reversed the death penalty and sent it back for a retrial on the issue of life or death. You may and should read that opinion by again googling “People v Rosoto 62 Cal 688 ” (4/24/1965.) That is when I came into the picture. Donald Franklin’s attorney, Sam Drizen, had been appointed a judge of the Superior Court, so Franklin needed a lawyer, and it was me. To me, all I had to do was read the acts set out in the original opinion. and use my experience, but this being Orange County and all, and with the defendants being from out of the state, (Rosoto and Franklin from Washington state and Vlohitch from Washington and LA,) after all is said and done and no issue as to guilt, who would not expect a jury of farmers, Republicans and basic law-and-order people not to render a verdict of death? To me, easy money, even though I would still do my best

The Orange County jail at that time was a bunker-like structure almost like a pill-box; today, it’s a big and modern building. The Court House at the time, and it is still standing, is what you would expect, a grand three story structure with the DA’s Office located there and about four old time large and impressive courtrooms with beautiful woodwork, judges’ chambers, the bench and witness chairs and counsel tables looked like something out of an old Hollywood film and even cannons on each side of the entry steps to set off the building. There were other courtrooms around the area in buildings that appeared to have been former residences. One would see in the morning the bailiffs escorting a chain of prisoners to the outlying courts, and the courts inside of the courthouse had their own holding cells for the prisoners.

Time to meet the client and his co-defendants. Beforehand, I had met with and talked to Franklin’s former lawyer, Sam, now Judge Drizen, and his description of Franklin gave me pause for concern. Oh well, a guy’s got to do what I got to do

So, to get into the jail, you first walked into a small entry, with sheriffs behind a counter on the right, you identify yourself, request a visit, and in this case with all three defendants, show your ID. They would open a large steel door, you walk through, no visiting rooms, just find a place amid the turmoil and do the interview. Because I asked for all three of the defendants, they decided to put me in a laundry room just off the whole holding area and then in comes the three defendants. Franklin was huge, about six two or three and well over 200 pounds with a bald head and a huge red beard and mustache. Vlohovitch was even bigger, at least six ten and well-built. Joe Rosoto was about my height, but with shoulders twice as big. I introduced myself as having been appointed to represent Franklin, and I noted Rosoto was staring at me, and his eyes were black as coal. I told them I was a former DA in LA, I was experienced in Capitol cases, I had read the earlier opinion, this would be a tough case, and they did not have to accept me as Franklin’s attorney if anyone of them objected. Joe’s eyes softened and they all said it was OK for me to come aboard. (Later I told my friend, attorney Paul Caruso, about my experience and that I had never seen eyes so scary as Joe’s. Paul laughed and said what I saw was “The Sicilian Stare,” and when confronted with it, one does get scared. Also, what the heck was I doing, letting myself be locked up with three guys convicted of a brutal murder without any guards around to prevent an attack.

Next, what I discovered from a simple motion for discovery of any favorable evidence. Turned my life around and saved the defendant’s

Marshall

Haven’t written for a while. Lots of thoughts, but could not put them together. Sort of a writers’ block, I guess, but here goes some interesting experiences – to follow:

Well, I am still living in Newport Beach, Lido Isle to be exact, with a daily commute by train to LA, a short walk to my office and the courts in downtown civic center. Work on the ride to, and a martini on the ride back. I might mention if you get to LA, go to Union Station, it is quite beautiful, with a gigantic lobby, great leather chairs and super architecture and nearby, Olivera Street, which reminds me of the early days of The Puebla de Los Angeles or its full name “La Ciudad De La Senora La Raina de Los Angeles. China Town, Little Tokyo, the LAPD headquarters, then known as the “Glass House,” are all nearby.

I tried to quit the DA’s Office three times. The first I have written about earlier when I thought I was transferred to the Complaint section from the Huntington Park area office and had no future, but was assured the Office liked me, and I would be looked on favorably for promotion, so I stayed. The second time was personal, just to get away from domestic turmoil, and I had great job offers from the DA’s Offices both in Marin County and San Mateo County as well.

Earlier, I blogged about how my parents had the good life until my older brother was killed while crossing Beverly Blvd, the end of my parents’ marriage, my father’s fall from from his profession. Well I was aware my situation was not so unique. Just problems developed between my mother and my wife, and I thought it best just to “get the hell out of Dodge.” So I visited San Francisco, met with Jack Erlich, whom I mentioned in my beginning blogs, and also interviewed with Keith Sorenson the DA of San Mateo County who offered me a job. I also interviewed with Bill Weisick, the  Marin County DA, who also was the County Counsel and I was offered a job. Marin was just growing and looked real good, so I accepted the Marin County Job. Bill later was murdered by a disgruntled defendant after Bill went into private practice. The guy stewed while in prison, and when released, acquired a pistol, calmly walked into Bill’s office and blew him away. Back to LA, saw Howard Hurd, my boss at the time, and tended my resignation. Upon inquiry, Howard learned of my reasons for leaving and gave me very sage advice, which was: “Marshall you cannot run away from the problems. What you have to do is “grab the bull by the horns,” and solve the problem.We want you to stay, you have a great future with us, so don’t quit.” Made a lot of sense to me, and that is what I did. Called the two DAs, thanked them and told them I am staying in LA.

The last time I quit was in 1965. I mentioned in the beginning blogs about my civil practice before the DA’s Office, representing the loan companies and Ralph Dixon who graduated from Ohio State with a law degree during the Great Depression and his rise through the ranks until he became vice president of Beneficial Finance Company. Well he had turned 65 and was living in Orange County and wanted to retire from corporate law work and was pension-wise well vested, and we had maintained our friendship after I went into the DA’s Office. He suggested we open offices in Orange County, Santa Ana to be exact, and start practice together, he to do civil work and I criminal defense. I knew if I stayed as a prosecutor for more than ten years, I would likely stay until I retire. I noted the mandatory retirement requirement of the DA’s Office was 65. I further noted very intelligent and viable forced retirees from the office just seemed to fall apart and really not last very long after they left. To me I thought that is not good, and I just did not want to ever be in that position. So I agreed with Ralph to join him, and thus retired to go into private practice.

Now, the question is, how can a hard-nosed prosecutor ever become a defense lawyer? The defense bar in LA all came to my retirement luncheon, probably just to make sure I was leaving; some even promised me Orange County case referrals because they did not want any part of that tight, conservative anti-LA lawyer area, which was fine with me.

I might mention I did resolve the domestic problem and my mother came around and behaved herself after my first child, Douglas, was born.

Well the defense lawyers were right, but I was really not at the time a real defense attorney; I was pretty good but still had a prosecution attitude. That went away with my representation of Donald Franklin, who had been accused of murder to eliminate witnesses in a pending robbery case. He and his two other co-defendants had been previously convicted of murder 1st, sentenced to death and were 20 minutes from execution, when the State Supreme Court reversed the penalty phase of their trial but affirmed the guilt phase. Franklin’s Lawyer, Sam Dryson, the the Orange County Public Defender, had been appointed to a Superior judgeship, so Franklin needed a new lawyer. I had just been in private practice for a short while, but because of my background, the Court appointed me to represent Franklin for the penalty phase that is life or death, up to the jury. No problem as I saw it. I knew the facts from an earlier opinion, and as far as I was concerned, he would most likely get the death sentence again; after all, they were convicted of lying in wait for the victims of an earlier robbery where out of the darkness,they  blew the male victim apart with a shotgun and shot the arm of of his wife. Easy money, but a no-hope case. Well, I came to believe Franklin was innocent and wrongly convicted on perjured testimony. Overnight I converted from a “hard nosed” prosecutor to one hell of a defense attorney! Later, I will tell you why I think Franklin got a raw deal.

Next log will start the travels of Marshall Schulman, Defense attorney.  See you then

Marshall