MarshallsKnowledge©

I have been struggling to draw a picture of the Orange County legal community and the relationships between the Bench (the Courts) and the Bar (the attorneys, including prosecution and criminal defense.) All I can say is that the Orange County legal community was insular and close. An outsider looking in would conclude the whole thing was a vast conflict of interest, with improper relationships lending to a picture of very tight inter-legal relationships. Nothing would be further than the truth, and I will explain.

Jack Ryan is a very large and physically powerful human being, about 6″2 or 3″. He was raised in New York City, on the West Side area known as Hell’s Kitchen. He escaped by enlisting in the US Marine Corps, rising in rank and discharged as a “Gunny” Sergeant. Like so many, after seeing Southern California, with its weather and opportunity, he decided to remain. He got a job as a bouncer in a local drinking establishment and was known to keep things in order by occasionally grabbing two fighting patrons and banging their heads together, which generally quieted things down. Well Jack’s English still carried the “dos” instead of “those,” “duh” instead of “the,” and “dems” (like dem bums,) but he was no dummy. To the contrary, he was very intelligent, and so entered and finished U.S. C.’s Law School, successfully graduated and passed the Bar Exam. He became an Orange County Deputy District Attorney, rose in the ranks of prosecutors to head the DA’s major and complicated trial department. From there, he became a Municipal Court Judge and eventually a Superior Court Judge, handling the Criminal Trial Master Calendar Court. Jack also became known state-wide as an expert on the complications of sentencing, writing the material which was used state-wide, and used by all the state judges, as well as he became one of the teaching judges in the Court program for the education of newly-appointed or elected judges known as “Judge’s School.” He has since retired, moved to the Palm Springs area and still sits as a judge in the area by special assignment and still keeps up with his teaching and plays some golf. I have had several cases before his honor. Now let me explain our relationship.

I first met Jack when he was a DA and we had a few cases against each other and to my memory, they all settled amicably. When he was a judge in master calendar, several cases were worked out favorably, both for the prosecution and defense. At arraignment day, or even the day set for trial, all the lawyers would go into the judge’s chambers, tell their side, and Jack would give an indicated sentence based on what he heard. That’s the way it worked, and it did work. But my relationship with Jack was more than just a local attorney and the presiding judge

There was the local watering hole known as the “Plank House,” located about four or five blocks north of the Courthouse on Broadway. Most of the criminal lawyers, prosecutors and some of the judges would meet at “The Plank,” as it was referred to, and have a few belts before going home. It was a clubby place, where we could BS each other and unwind. Rarely, if ever, were cases discussed. Among the prosecutors generally meeting, there was Jim Enright, the Chief Deputy District Attorney, John Gier, the lead organized crime DA Investigator, Ron Butler, the public defender in charge of the public defender’s office, just to mention a few.  My wife, Maxine, after 30 or 40 years, still brings up my excuse for being late, saying “you just had to unwind” in a very sarcastic manner. Well sorry, but it was still good to maintain a relationship with the prosecution and the judges.

What I did not mention is that every Sunday, I met with my golf foursome at The Green River Golf Course, located just on the other side of Orange County. The foursome consisted of me, Jim Enright, John Gier and, later to be my partner, Byron McMillan, who was then either the presiding judge or when not the boss judge, a criminal trial judge. I should mention as I wrote earlier, after the army, I spent a summer at Catalina Island  as a fry cook, and learned later that Byron was also on the island at the same time, and we probably played beach volleyball with and against each other. Byron’s father was a state assemblyman out of LA, and his area included the Borsht Belt, Beverly Blvd. and Fairfax Avenue. Every year, Byron’s dad, Lester McMillan, would introduce a death penalty repeal bill, which never passed. Byron, as a judge, had no problem with the death penalty when appropriate. (More on Byron later in the blog.) Jack Ryan played golf, generally at the El Toro Marine Base, and our group was often invited by Jack to play at El Toro. Furthermore, on a couple of occasions, John Gier through his connections with the Riverside County DA’s Office would wangle a deal where Jack Ryan, myself, Jim Enright, and John Gier, would get in Jack’s big Volvo, drive to Palm Springs, stay at a resort on a golf course, drink our heads off, play golf, watch the Anaheim Angels baseball team spring training, and have a grand time. So, you would think I would get some breaks in my cases with the court and or the DA’s Office. Not so, as I will explain.

Lew Rosenbloom was one hell of a prosecutor. A tireless worker, smart as can be and tough as nails, but he could relate to a jury. I remember one case I had against him where the client, an Iranian, had a fixed marriage with an Iranian beauty much his junior in age. During the course of the marriage, the young wife met another young Iranian man, and took up a clandestine love affair with the young lad only to have a tryst discovered by my client. Client was not happy with the arrangement between the two young lovers, so he allegedly armed himself with a pistol, waited in the carport area of the young man’s apartment building for the young man to appear. The facts become confused and stories differed. My client claimed when he confronted the young man, the young man attacked the client with a knife and the client had to shoot him to protect himself, i.e. “self- defense.” The young man claimed there was a confrontation, client pulled a gun, and the young man fled, but was caught in the front of the apartment complex, where the client shot the young man in abdomen. Case went to jury trial, with Lew Rosenbloom as the prosecutor. Now here is a lesson to remember: if the client’s story does not hold water, then don’t accept it, and try to convince the client or witness to tell the truth. I was always waiting in the trial for Lew to come to his senses and see physically what happened but he never did.  The alleged victim insisted my client stood over him while he was helplessly lying on the ground, and was flat on his back when his assailant stood over him and shot him in the front of his body.  Could not have happened that way. There was no discernable entry. In fact there was clear evidence the wound entered the back. Basically an entry wound would be small and if the bullet also exits the body, the exit wound would be larger and the skin would be pushed out. That was the evidence, but the prosecution insisted the bullet entered the front. Crazy! The jury quickly found my client not guilty of all the charges, including attempted murder in the 1^st degree, which carries a life sentence.  Why go into that case? Well I thought it might be interesting because I want to follow up with another case involving prosecutor Lew Rosenbloom, where Jack Ryan was the judge, to illustrate why, though there may be- to an outsider- conflicts of interest between the Court, prosecutors and defense attorneys, conflicts did not exist in fact, though the Bench and Bar were fairly socially cozy as will be illustrated in this writing..

A Newport Beach socialite was extremely unhappy that her step-daughter married what the socialite thought was very much beneath their social standing and an embarrassment. The step-daughter, her husband and children lived in Costa Mesa, a neighboring but looked-down-upon area by Newport Beach denizens as very low class. Newport High school kids had a derogatory expression when some event or thing was not considered worthy as, “it is so Costa Mesa.” Get the idea? Snobbery. That’s what it is. Well Step-Mom, for some reason, would allegedly stalk her step daughter’s house often, just by slowly driving by it. Finally one day, the husband apparently had it up to his ears, left the house with a wrench type tool, and stood in the street in front of step-mom’s car to allegedly confront her about the harassment. Things did not work out very well. Facts again vary. The car moved forward. The front driver’s window was smashed, the husband ended up on the hood of the car, and eventually ended up on the street with a cracked skull and died of, if I recall correctly, a subdural hematoma (which means excessive bleeding beneath the skull area and the brain causing great pressure and death.) Again Lew Rosenbloom was assigned the case, and the charge was murder. Lew’s theory was the step-mom who I will refer to from this point on as the defendant, deliberately drove her car forward causing the victim to be forced up over the hood of the car causing his body to go forward, hit the windshield on the driver’s side, causing the windshield to shatter as a result of the victim’s head hitting the windshield, which was the cause of the brain wound causing death. The defense theory (mine) was the defendant was confronted by the victim, who, frightened by his aggression, inched forward; the victim began smashing the windshield, frightened the defendant, who attempted to get out of there, and the victim fell off the hood and, when landing in the street, hit his head, causing the brain injury and subsequent death. We go to jury trial. I put on an accident reconstruction expert. To me, based on the evidence, there is no way the victim could have been propelled up and over the hood into the windshield just based on the law of physics, the height of the car’s bumper speed and clearly the windshield did not match the victim’s head. So we had a battle of experts. The bottom line is the jury could not come to a verdict. Cases goes back to master criminal calendar with Judge Jack Ryan presiding. After much discussion in chambers, Lew and I, with the client’s consent, agreed to let Jack decide the case based on the transcript of the earlier trial.  I thought no way could I lose the case based on the evidence. The transcript is prepared, Jack reads it, Lew argues his theory, I argue that the prosecution’s theory is wrong and point out why. Now I expect a not guilty verdict from the Court but Jack fooled both Lew and me saying he did not have to accept either theory and found the client negligent in her driving, causing the injury, a misdemeanor and sentenced her to one year of house arrest.

My point, regardless of friendship and social relationships is that the court, the DA and the defense still operated as they should without any benefits to either side.

More to come,

Marshall

 

So I got a call from Manuel, wanting me to represent his cousin, Jose C, who was in custody in Long Beach PD, along with two other cousins, booked into jail on a murder warrant, no bail, serious charge. The warrant was issued out of Santa Barbara County and the case filed in the Santa Maria branch Court of Santa Barbara County, where the main courthouse, a historical beauty, is located.

So, off I go to meet with the potential client, but soon discovered my Spanish language was very limited and the client spoke no English. I was able to communicate poorly, but managed to let him know how I was contacted, that I would get a Spanish-speaking associate, an investigator, and would see him in Court on the assigned date and instructed him to not talk to the police unless I was present. We managed to get through the first meeting. The client’s two brothers were also charged. I had never been to the Santa Maria Court and knew very little about the area, nor the DAs and the judges, but I must say I have been extremely successful in non-local courts, even though I have preached to other lawyers not to take cases out of their jurisdiction and to get a local lawyer who knows the territory and local idiosyncrasies. If one is going to take a case in an unfamiliar jurisdiction, then associate with a local to keep one informed

So, after my first contact in the case I had to arrange a retainer agreement, so I dealt with my old client, Manuel C. I would need a Spanish-speaking associate and investigator, plus travel and room and board expenses. All was agreed. I contacted the local public defender’s office, got a hold of the attorney representing one of the accused brothers to get a referral to a local Spanish-speaking criminal defense attorney and Steve Belasco was recommended. Got in touch with Belasco, and made arrangements to meet before the next appearance to work out his fee for associating with the case.

Santa Maria is located at the extreme north end of Santa Barbara County. It is primarily agricultural with many horse ranches. Very beautiful and homey. One gets there generally by automobile from Orange County north through through LA and the Ventura Freeway, north through Oxnard and Ventura then up the coast through the City of Santa Barbara cutting inland through Las Olivas, which is a horse ranch area (President Reagan and Michael Jackson had ranches in the area,) continuing where the road intersects again with the coast freeway, then to Highway 101, north to Santa Maria where you get off the freeway and go west into the town . I found a very neat place to stay called the Santa Maria Inn, a rather rustic, but very nice hotel/motel which had country music performers every night in their lounge as well as some dining facilities.

I arranged to meet Steve Belasco at the Santa Maria Inn before the first court appearance. In he walks; I was expecting a Latino and got a red-haired Irishman about 5′ 8” and fairly trim in stature. “How did you get to be called Belasco?” I asked, and he laughed. He replied “My father wanted to be in the movie theater business, and there was a known string of Belasco theaters, very popular with movie-goers, so he changed his name from (can’t remember exactly but something like O’Riley) to Belasco to benefit from the name!” Steve was self-taught as to his Spanish speaking ability, merely from representing Spanish speaking defendants, and he had plenty, as farm and horse ranch country attracts a lot of immigrants from Mexico to work on the ranches and farms. His background consisted of attending one of the top-rated Claremont schools, Pomona College, and after a stint in the Peace Corps in Africa, I believe he then attended UCLA School of Law, and settled in Santa Maria doing criminal defense. What a break for me. Not only getting a Spanish-speaking associate, but a guy who was immensely qualified to work on the case.

This is what I learned from Manuel, the client and the police reports. Manuel and his cousins lived in the Mexican State of Sinaloa where the main city is Culiacan, population several hundred thousand, but the area was at the time rather primitive, where distances were measured by how long it takes to go from one area to another, such as from spot A, it would take one day by horseback to get to point B. Well, one day, two groups of locals met at a ranch for a party where food, drinks and music would be provided, as well as music where people could dance. The lighting was provided by generators as there was no public electricity provided in this remote area in Mexico. Nearby there was a ravine. Well, it seemed there was a lot of drinking and one of the group from Jose’s clan decided to dance with a young attractive lady from the other group. This did not go over too well and before you know it, it both male groups ended up in the ravine shooting at each other. About five members of Jose’s family group were killed and a few of the members of the other clan did not fare too well. One member of the other clan who survived, learned he was targeted for execution for his participation in the shoot-out, so he disappeared. He eventually ended up as a horse tender on a horse ranch in the Las Olivas area of Santa Barbara county. One day, he was assigned to drive a tractor with a trailer attached and in the trailer was a young man whose job was to pitch hay to the horses from the trailer. While the two were doing their job, apparently there was a car parked nearby on one of the horse ranch roads, and when the tractor trailer approached the parked car, one of the occupants got out, walked over to the tractor, shot and killed the driver and then turned the pistol towards the young man who had been pitching hay and shot the young man right in the stomach, but the boy survived to describe the assailant, the car and the shooting. My client ended up accused of being the guy who left the car and deliberately shot and killed the tractor driver and attempted to murder the young  hay pitcher. One count of Murder 1st, premeditated and lying in wait and attempted murder in the 1st degree of the young man. The brothers were also charged with the same as accomplices and conspirators.

If you like steak and meat, there is no place better than “Jocko’s.” It is located in a small, and I mean small, village called Nipomo, located just beyond the northern boundary of Santa Barbara County and the southern end of San Louis Obispo County, off of Highway 101 north, and just off the Santa Barbara county line in San Luis Obispo County. The best is their ribeye steak. Steve Belasco first told me about the place. The steaks are cooked outside in big BBQ grills with oak as the firewood. For about twenty dollars, you get soup, salad, steak, baked potato, a vegetable and a scoop of ice cream. Wine and coffee extra. I never made reservations, but would just enter, put my name down, go to the cowboy bar order a martini, and when called, get a table and hash down. Also their baby back ribs were to swoon over. No sauce allowed, just the taste of the ribs, yummy. The whole Santa Maria area has great eats, but Jocko’s tops the list. If you are in the area, it is a must.

Back to the case. It turns out one of the brothers was represented by a friend of mine, Gerson Horn. I liked Gerson, not because of his legal abilities, of which he had plenty, nor his work for California Attorneys for Legal Justice, an organization I mentioned earlier. But as short as I am, he is shorter. In Gerson’s group of defendants, Gerson had a young man associated with his group of defendants whose name I can’t remember, but he was about 16 years old, and part of the defendants’ Sinaloa family. Probably assigned and attached to observe and relate back to the powers-that-be in Mexico.

The investigating sheriff, whose name I cannot remember, was a big and burly guy, about 6’4″, to whom I took an instant dislike, and he felt the same about me. I remember an incident where I stood right up to him, accusing him of lying and trying to pin the murder on my client to close his case, knowing my client was innocent. Thought Steve Belasco was going to pee in his pants, but the cop did nothing. You might wonder why I accused the deputy sheriff of manufacturing?  Well,the shooter was described as 6’2″ and my client was 5’8″, quite a discrepancy. Plus, the young hay-pitcher could not ID my client and it was the cop who said in his reports that the witness said the shooter was identified by a picture, which the witness denied saying. All bull-hockey.

So, we went to preliminary hearing, evidence was presented, and the judge found insufficient evidence to connect the defendants to the shooting, as the magistrate should, But the DA can, and did, refile the case with the same charges. This time, a new twist. An inmate who was called “Abuelo,” which means grandfather in Spanish, claimed the defendants told him who shot the victim, total BS. Abuelo wanted in the worst way to get out of the Secure Housing Unit at one of California’s toughest prisons, “Pelican Bay,” where the worst of the worst are housed, and he wanted to get transferred to a more friendly prison, even though he had attempted to murder a fellow prisoner which caused him to be sent to SHU. Abuelo was interviewed by Gerson Horn and his investigator who learned of the reasons for Abuelo’s statement, which was used at the second preliminary hearing. Same result: the magistrate found the new statement unbelieveable and dismissed the the case for the second time. But that did not stop the DA from continuing, and he took the case to the Grand Jury, but only sought an indictment against my client. There is a saying a prosecutor can get a Grand Jury to indict a ham sandwich, and they came back with an indictment against my client.

So, now I’m alone with a client charged with murder and attempted 1st. to stand in front of a grand jury supposedly composed of a cross section of the community which cannot be excused because of race or ethnicity. This rule applies not only to regular trial jurors but also grand jurors. So I make a motion to dismiss the indictment because I learned Santa Barbara selected its grand jurors by recommended appointment of the judges, plus voting roles and drivers’ licenses. I claimed the method used was discriminatory as there was no attempt to get Hispanics on the grand jury, yet they represented a sizable portion of Santa Barbara’s population. I had gathered the evidence to support my claim. When I raised the issue, the judge listened patiently and even though Santa Barbara later changed its efforts to recruit grand jurors, the judge said “change has to come about slowly,” the same argument the Southern States used to uphold school, buses, restaurants etc. regarding Civil Rights. Motion Denied

I wasn’t done. One can attack a judicial ruling on a motion to dismiss by filing what is known as a writ of Mandamus, claiming if a judge acted in excess of Jurisdiction I can file a writ of prohibition basically asking the appeals court to prohibit the case from going forward and to order the judge to change the ruling. I filed the writ in the appellate court,  2nd district, division 6 and, guess what? They granted the prohibition and ordered the DA to answer the claim within 60 days.

In the meantime, I got a request to meet with the people bankrolling the defense. So I, like a fool, get a hold of Steve Belasco and we traveled to Tijuana, Mexico to meet what we believed to be the person in charge of the family’s affairs. Now, most people going to Tijuana are pretty much restricted to main streets, where the bars, restaurants and shops are located. Our destination was deep inside the area at a very fancy hotel that had a room set aside for the meeting. I recall to this day, there were several men present, with one asking the questions, and at the far end of the table, a fierce looking man glaring at me. Basically, they wanted to know how come two of my client’s brothers were released and my client was still on the hook. I answered as best as I could, explaining what had transpired and the state of the case. The questions and answers were all in Spanish, but apparently, it worked, as I was offered the services of a very pretty waitress, or, if I wanted, they would fly me to Acapulco and I could play there, if I wanted. I politely demurred, and got the hell out of there back to the USA and wondered if I was crazy going to Tijuana and meeting with those guys.

Well it turned out the DA did not answer my writ and the cops, behind my back, drove my client to Mexico, turned him over to the local police, where he ended up incarcerated for a short time. The case was dismissed, the client had a celebration party in the Tijuana jail, was released shortly after, and that ended the case. As a side note, the young man who was attached to Gerson Horn’s staff was later discovered in the trunk of a car riddled with bullets.

End of story

Marshall

I was located in my first private practice office, on 8th Street across from the Courthouse. It was either in the late 1970s or 80s; I can’t recall exactly. Along with Bob Brodie, I hired another young guy out of the DA’s office, Brad Boeckman. Brad was one of the top prosecutors, but young, and he needed some guidance regarding defense practice, but he was very willing to learn. He was a rather good-looking young man, in good shape and one of those long-distance runners. He, like most of my associates, lasted about 6 years. Married a local girl, whose father was very well-to-do, and who owned a large compound of homes in Shasta County, famous for the Mount Shasta Ski resort and Shasta Lake for summer boaters and fishers. So, Brad moved into the compound with his new bride and went back to being a prosecutor for the Shasta County DA’s Office, and eventually was elected a Superior Court Judge located in the City of Redlands in northern California.  The last time I saw Brad was at a State Bar Convention in Monterey. and it was good to see him, a little older and his black hair had a touch of grey. Funny how so many of my associates ended up as judges. I have been approached to become a judge several times, but it was just not for me for various reasons, one being that I am not the most patient individual and believed I just did not have the temperament and patience required  to be a good jurist and for me, it feels a little too confining. But, I am proud that many attorneys who worked with me were considered top quality and good examples of lawyers with vast legal knowledge.

Anyway, one day, this fellow Manuel C popped into my office, asking me to represent him in a case. I think it was in South Gate, a city in the North part of LA County. Manuel was charged with possession of heroin for sale, plus being armed with a firearm, a pistol, which enhanced the penalty and precluded any grant of probation.The catchphrase in California was: “use a gun – go to prison.” We talked and I set a fee of over $10,000 to take the case. Manuel assured me that was fine, and he would see to it the retainer was paid. We arranged to meet in Court on the day he was to appear. So, one day, while I was out of the office, probably in Court somewhere, I came back to my baffled secretary telling me that some guy had come into the office with a folded Tijuana newspaper, dropped it on her desk, saying it was for Manuel’s fee, and left.  When the paper was unfolded, it contained a very large retainer in cash. This caused a problem, as the Federal government requires one to report all cash transactions over $10,000.00; they can grab the money if the government believes the cash is drug money. I reported, but had no knowledge who or where the money came from and there began to be a lot of correspondence between the Feds and me regarding the amount. Bottom line was that the Feds eventually gave up. So, the client and I met in court for arraignment and setting of the preliminary hearing to where the DA must show there is enough evidence to hold the accused to trial; the process known as a preliminary hearing. The same rules of admissibility of evidence applies to a preliminary hearing as to a trial, except the standard of proof is “reasonable belief a crime has been committed and the defendant committed the crime.” At the preliminary hearing phase, one can raise the issue that the evidence obtained was in violation of the defendant’s right to be free from unreasonable search and seizure based on the 4th Amendment to the US Constitution. So, if the seizure of the evidence was unlawful, the rule is evidence obtained by such conduct is not permitted to be introduced, which leaves the prosecution with no evidence and the charge would be dismissed. The avenue to raise the issue of unlawful search and seizure is set out in the Penal Code Section 1538 and can be raised at the preliminary hearing. So I did just that by way of a motion raising the issue and setting out the reasons why. In Manuel’s case, he was stopped for no particular reason, searched, and the heroin and pistol were recovered which was the basis of the charge. The judge, acting as a magistrate, heard the evidence and agreed with me, and granted the motion and then dismissed the charge.

Some time later, I got another visit from Manuel. He had again been arrested, and again heroin was recovered, and again, Manuel was armed with a firearm, but, this time, the cops obtained a warrant to search Manuel’s residence and person. I should mention what the Fourth Amendment actually says- basically that the people shall be secure in their person, papers and house against unreasonable search and seizures and no warrant can be issued except with probable cause. So, a body of law has developed called the “Exclusionary Rule.” Originally, the exclusionary rule developed with a series of Federal cases, but the rule did not apply to the states, so state police had no restrictions as to police violating one’s privacy until a case called People v Cahan. The California Supreme Court ruled the cops went too far in ransacking Cahan’s house to get bookmaking evidence and the Court said enough is enough and developed a rule of admissibility and exclusion not on Constitutional grounds, but as a rule of admissibility. The Cahan case had just came down around 1955 or 1956, when I was a new deputy DA in LA. I had mentioned Art Alarcon in much earlier blogs, and Art was a Deputy DA, did all the research, and the DA’s Office published his work, which was used throughout the State as the authority for the exclusionary rule. Later in a case of Mapp v Ohio, the US Supreme Court in 1961 ruled that the 4th Amendment and the Exclusionary Rule also applied to the States as a rule of Constitutional Law.

So, Manuel again appeared in my office with the new case and this time the evidence seized: heroin and a weapon, was obtained by way of a warrant. Much tougher. Arrangements were made for a retainer and appearance like last time, but with a different twist. Even though a judge OKs a warrant, the seizure can still be attacked by claiming the facts presented to the judge to support the warrant are either insufficient or too broad. So, the second time around, I raised the suppression motion, asserting the affidavit in support of the warrant was insufficient and I moved to suppress the evidence. Guess what? The judge that actually issued the warrant was assigned the preliminary hearing and motion to suppress the evidence and unbelievably agreed with me; said he shouldn’t have signed the warrant, and granted the motion to suppress the heroin and firearm, and the case was dismissed.

Things did not end there as after the case was dismissed I got a call from Manuel and was told the sheriffs had put word out in the street that the reason Manuel beat his two cases was because Manuel was working as an informant. That false information put out by the LA Sheriffs was in effect a death sentence, as the gangs were out to kill Manuel. Manuel asked me to call an attorney who represented most of the Hispanic LA drug dealers who basically, it was alleged, got their drugs to sell from an organization in Mexico, located in the State of Sinaloa, near the Northwest part of Mexico, bordered by Sonora in the North, Durango in the East, and Nyarit to the South. The Sierra Madre Range is included and part of the east end of the Gulf of Mexico, where the resort city of Mazatlan is located. I knew nothing about drug cartels and their machinations at the time. But, I called the lawyer, explained each case, offered to send the Court minutes and docket, and the problem went away. I thought Manuel, who was a Mexican citizen and I think also a US citizen, was sufficiently scared by what the Sheriffs did that I would not see him again involved in drug carrier activities. Not so.

One day I got a call from Manuel, telling me that his cousins from Mexico, basically Cuilican  in Sinaloa State, were in custody in Long Beach and charged with murder 1st,  and he wanted me to represent one of them for a murder located in Santa Barbara County.

Next: the Sinaloa Murder case in Santa Maria. Should be good reading!

 

Marshall

 

As mentioned in the previous writing, by just very bad luck and bad fate, Robert C  could not get an appointment with a psychiatrist until after the New Year’s Holiday. So, on New Year’s Day, it was alleged that Robert had convinced two other young men who were both minors, i.e. age 17, to “off” another young man, who was also a son of a prominent dentist living in Orange County, whose family had immigrated to the United States from Singapore and was also of Chinese descent, a pistol. This victim was a young man who attended another high school in the area, and, like Robert, maintained a 4.7 grade point average in high school, and, if my memory is correct, planned on attending Harvard University. The so-called plan was to lure the other young man (who will be referred to from now on as the victim) to where Robert and his two accomplices had stashed three baseball bats at different vantages and placements in the garage for easy access to the conspirators, to be used to overpower the victim and basically bash the victim’s head in. The three had also previously dug a hole in the backyard of one of the boy’s homes just outside of the garage in the rear yard of the area of action. So, when the victim arrived, a chair had been set in the middle of the garage, and the victim was handed a package supposedly containing the firearm to be purchased, and as the victim attempted to open the package to inspect its contents, allegedly the three young men grabbed the hidden bats and began to smash the victim until the victim lay on the floor of the garage. At that point,  gasoline was poured down the victim’s throat and then the victim’s mouth was duct-taped, and he regurgitated and, according to the autopsy surgeon, he then died of suffocation. Then, his body was thrown into the previously-dug hole, covered with dirt and thus buried. The three young men then went out that night and celebrated New Year’s Eve.

Unfortunately for the three, it did not take long for the Anaheim police to uncover the whole plot and recover the body, as one of the young men was observed the day before digging the hole by a neighbor. The three were charged with Murder 1st, even though two were juveniles, because at the time, the DA had the choice of charging the minors as juveniles with juvenile proceedings and wardship treatment, or as adults with criminal consequences, sort of a “no brainer,” wouldn’t you say? With Robert, Murder 1st carried a life term and if the murder contains special circumstances, then the punishment is either life without parole or death. One of the enumerated special circumstances is what is known as “lying in wait.” Lying in wait occurs when the perpetrator intends to kill, and creates a situation in which the victim is unaware of the killer’s intent before the act causing death is going to occur. The classic is killing by ambush, but any circumstance where the created situation causes the intended victim to be unaware of the deliberative process of the perpetrator is an example. So, in Robert’s case, the DA did call for special circumstances and was asking for either death or life without parole.

I mentioned in an earlier blog that when I was  prosecutor, I made the choice of whether to seek the death penalty or just life in prison in a Capitol Case assigned to me, and did seek the death penalty, even though the investigating officers were not hot on the deal. I also mentioned maybe a “gung ho” young prosecutor has not had enough life experience to make such a decision. Well, that decision process has changed as a result of cases decided by the United States Supreme Court holding that a decision by a prosecutor to singly determine when to ask for the death penalty is arbitrary without any fixed standards and therefore unconstitutional. Now, each County DA has set up an independent committee to weigh several factors for or against asking for the death penalty, without the elected DA’s interference, weighing several factors, both in aggravation and mitigation. In my defense capital death cases, I have been successful in presenting evidence and reasons why death should not be imposed and except for the Risotto, Franklin cases written about previously, I have not had to face a death case as a defense attorney. In Robert’s case, I presented to the committee mitigating evidence such as no criminal background, his civic participation in school, his gold medals from the academic decathlon, his family, and so forth. The committee rejected a death sentence and the DA’s Office was only going to ask for life without parole, which is not so great either, but leaves room for maybe a shot at a lesser charge, such as manslaughter, an intentional killing, but based on some mental condition diminishing his capacity to contemplate, or maybe an unreasonable, but honest, belief in self defense or anything that might reduce the mental requirement of malice aforethought. If the charge has a life without parole penalty attached to it, no reason not to go to trial, which we did.

Unfortunately, the co-defendants, the two other participants, had good lawyers who cut a deal with the prosecution to plead guilty to murder 1st, but be able to ask for juvenile treatment to be incarcerated with juveniles, which was known then as youth treatment until the age of 25 and then be eligible for a parole release.

I tried, brought in a great witness, who was the director of the local state mental facility, to try to show Robert as acting under a delusion that the victim needed to be eliminated as Robert believed the victim had planned to murder Robert’s parents. Under the law at the time in order to raise a mental defense, the accused had to testify. Robert testified, and I was hoping the jury could see Robert as not all there, but it as hard to overcome the testimony of the co defendants and other witnesses, and Robert was convicted and sentenced to life. I did not go into all of the ramifications of the trial or my thoughts but needless to say, saving Robert from Death Row was not easy. What a pity and what a waste that the whole scene occurred; just a few days before, he could have met with the psychiatrist who, if available, might have averted the whole tragic consequence. I might mention that the last I know, Robert has had no trouble or discipline while in prison and even set up a school for other inmates to complete their education and Robert is their teacher.

Next I think I will write about my experience with big time Mexican drug dealers

Marshall

It’s been a while since my last writing. Lots of thoughts, but just couldn’t get started on any one subject. So, here goes. Might add that my wonderful wife has been on my case to start writing again!

The most frequent question I am asked is “If you know your client is guilty, how can you defend him?” Actually, when I lived in the San Fernando Valley, the people I socially met with were generally liberals who wondered how I could prosecute people, and when in private practice in Orange County, the opposite was true. As I said previously, I did not represent the criminally charged for the fight to protect one’s civil liberties, though that is what I did, but because in private practice I would not have to take mandatory retirement at the age of 65. I did not go into private practice to make the big bucks, but to make sure I would still be functioning after the mandatory retirement age. Back to the question, re: representing people known to be guilty. Actually that is the wrong question. The question should be: “Is everyone charged with a criminal offense entitled to competent representation under our form of justice as opposed to a fascist or dictatorship form of government?” The obvious answer is “yes.” My experience from my combined DA and defense attorney practice is, generally speaking, that the attorneys working in the system and for the most part, the judges, often show highest level of ethics, with each side respecting the other, and I stick with it. Back to the question, I generally do not get into some type of dissertation on the Constitution and right to be represented and require the prosecuting to prove their case and all that stuff, but usually come up with some acceptable flippant answer like “it’s a living” and that seems to satisfy the questioner.

Not all clients are bad people. Some just get caught in a bad circumstance and went wrong on a single occasion never to sin again, generally in drunk driving cases where one falls once, never to stray again. Plus there is no law stating one has to like the client or his/her behavior. Civil lawyers don’t get a bad rap, even though they can stretch the boundaries of ethical behavior on behalf of their clients.

I once represented a real decent guy who worked for a subcontracting company that did testing for the gyroscope that went into stabilization system in the inter continental ballistic system on the missiles carried by the Boeing B 52 bombers. Pressure to get the system tested and approved was heavy and the bosses demanded fast approvals of the gyroscopes, so he shortcutted the testing. They got caught and all the devices had to be rechecked with the result of no harm.The government prosecuted the client and he was looking at long term hard time. After much negotiation with the US Attorney, I worked out a deal where the client would testify before a Congressional oversight committee, explain everything he did and the government learned how to avoid future inspection problems with the missile system. Client escaped long hard time in federal prison. He was truly repentant and of course devastated and shamed on what he brought on himself and his family.

Had another case where a guy got involved with an extramarital affair. That can cost a bundle of money, especially where his income covered his normal living expenses quite comfortably. But the dolly cost money for trips, hotels, and such stuff. So he started padding his expense accounts for expenses that never occurred. Worked fine until someone in the business caught the phony expenses and oops, grand theft prosecuting. First thing I did was have him work out a loan of the amount overcharged, then to the DA with an offer of civil compromise which requires approval of the victim and also the DA and Court. The overcharge amounted to about five thousand dollars. Now there is a provision of law that allows for misdemeanor theft that is under $50.00 to be petty theft but anything over is grand theft. Basically one cannot offer a theft victim payment for the loss for a felony and such an offer is deemed to be a crime, extorting, but with the DA’s OK, I thought it might work. The DA agreed, I contacted the victim company’s attorney, worked out a deal, paid the loss,and everyone survived..

But then I sometimes got really troublesome and big cases.

Robert C was just 18 when he was charged with Murder 1st with special circumstances. Robert was born on Taiwan, his mother a teacher and father an engineer. Father moved to the US in order to advance his education in one of the Southern States. Eventually the father brought mother and Robert to America where the mother worked as a waitress in a Chinese restaurant. Eventually father completed his education, moved to California, became very successful, moved to Sunny Hills, a high end residential area in the hill area just above the Fullerton Area in Orange County. Robert was brilliant. He attended Sunny Hills High, carried  4.5 grade point average, was on the academic decathlon, where he won the State Gold Medal in History and he and his team, I believe, won the State Championship. He was accepted at all the top universities and chose Princeton. However, in his senior year, his teachers noticed a remarkable change; Robert, usually very neat, tidy and concerned with his appearance, seemed to change habits, became tardy at times and his physical appearance drastically changed from his careful presence to slovenly. The teachers were concerned, called in his parents, expressed their worry, and, as a result, Robert’s parents had  a counselor psychologist at Cal. State University look Robert over. The counselor, after interviewing and testing, related that the case was over his head and recommended a psychiatrist. The parents promptly contacted the psychiatrist’s office for an appointment. The psychiatrist was to go on vacation during the Christmas break and made an appointment to see Robert after New Year’s. Tragically that delay was too late for Robert or his parents, because on New Years Eve day, Robert and two other boys lured a victim to a garage, killed the victim, buried the body in the backyard and partied on New Year’s Eve.

More to come,

Marshall

I have been struggling to write what it was like starting out in Orange County beginning in the early sixties when Orange County was just beginning to populate to the 90s and the turn of the century to the 2000s. For an outsider, it would be unrecognizable. First Orange County was appropriately named. Before the future development, there were acres of orange groves, and, when in bloom, the aroma  emitted was completely delightful in the early days of my defense attorney career. Today the groves are all gone, replaced by housing development and commercial buildings. So are the strawberry fields and Knott’s Berry Farms is not devoted to raising berries and jelly but now is an amusement park. Disneyland was first developed in Anaheim and has grown enormously with new additions and hotels. The population growth has more than quadrupled from about one million to over 5 million residents. It just had a growth spurt, and I was fortunate to grow with it.

At first it was important to figure out how to develop a good practice. As an LA Deputy DA, I noted there were basically two types of criminal defense practitioners: Those that struggled for clients together with court appointments for indigent defendants and those few who were able to collar the wealthy clients through referrals from other attorneys, particularly the big civil firms. Not being a “bleeding heart” type of person and wanting to make a good living, I figured the best way is to get next to the major firms hoping to get their referrals. How does one do that? Well, like Billy Sutton, the famous bank robber- when asked why he stole from banks he responded, “That’s where the money is.” What I had noted as a deputy DA was that the handful of big time criminal attorneys in LA were active in the local and State Bar Associations. So that’s what I did.

I did possess some notoriety, and like any tight group, the attorneys learned of my DA background and that did not hurt. Anyway, I had a connection to one major firm, Rutan and Tucker, which at the time was the largest firm in the area, but some of the LA firms such as Gibson Dunn and Cruther, the largest firm in California, was opening in Orange County as well as several others, plus one firm particularly was starting to grow, Martin, Baer and Knobbe, primarily a patent and trademark and intellectual property firm that today is one of the largest international firms, with offices still in Orange County, but also in Silicon Valley, LA, San Francisco, San Diego and just all over. Don Martin and Baer were very active in the Orange County Bar as well as the state bar. Well my point is, I wanted those big firm referrals. Sounds pretty crass, right? It was, but as it developed, I really loved the various Bar Association groups, and I turned out to be a pretty good worker and gave a lot of pro bono work as I developed. So the following will be a story on my growth and development. I have previously mentioned some cases I worked on but I can’t remember all of them, but what I do remember will be told.

In the beginning, I shared an office with Ralph Dixon, a former client when I was just beginning, who retired as an executive in a large loan company and decided to practice law. I have mentioned in earlier blogs about LA Superior Court Judge Herbert Walker whose son was at the time an associate with the Rutan and Tucker firm who placed my name on the firm’s referral list and I did get some early referrals but the bulk went to another long time Orange County ex prosecutor, a competent lawyer. I did sublease from the firm which helped.

I must say as I did earlier, in the beginning, it was tough breaking in to a new area with new judges and lawyers but I worked at it. Actually, in the beginning, I was down to a few hundred dollars, with a wife and two kids to provide for. It looked like I would have to go back to prosecuting, either back in LA or maybe Orange County. I mentioned earlier I had about exhausted whatever savings I had accumulated from my LS DA pension and so my wife and I figured that there really wasn’t anything to do with that kind of money, so we just threw a cocktail party for whomever I thought might be helpful. Right after the party, a favorite client of the Rutan firm was in jail and needed help. The firm could not reach their preferred lawyer for some reason I need not go into, and therefore contacted me. I got the client out of jail, successfully concluded his case, and I was the go to guy whenever any of the firm’s clients needed a criminal lawyer and also they recommended me to other firms as well and my practice took off.

My Bar Association work paid of as well. I started in the local Bar, attended their meetings, became active in the Administration of Justice sub-committee and eventually chaired the sub committee; I did  good job and was nominated to be on the Board of Directors of the Orange County Bar, was elected and was a board member for several years. In addition I chaired the criminal law sub committee for the Orange County Bar Association delegation to the State Bar Convention which met every year i in different locations such as San Francisco, San Diego, Long Beach, Monterrey and sometimes in Sacramento and/or Fresno. I loved it. Eventually I chaired for two terms the Orange County delegation to the State Bar and I have a few stories about that. Also I was appointed to the Criminal Justice Committee of the State Bar association where the State Bar Board of Governors would send proposals for recommendation. On that committee was Joe Bush, the LA DA and DAs and the Public Defenders were members. I think I was the only private practitioner on that committee. You might think I only did the Bar Association work to get referrals, but I actually loved it. But, it didn’t hurt. Bear in mind the practice development only works if you get results and if you don’t your referral source will disappear a lot faster than one would believe.

Orange County was very political. By that I mean Republican. Not just Republican, but Barry Goldwater Republican. Goldwater was running for the Republican presidential nomination against Nelson Rockefeller. The locals who judges for the most part were Republicans and the few Democrats who were appointed by “Pat” Brown, then governor of California got some lousy judicial calendars such as the mental health court or worse. What I did note was that even though the jurors and judges were primarily of the conservative and law and order bend, they were better for the defense than LA jurors. I attribute that observation to their being independent thinkers and that they would unhesitatingly vote not guilty if there was a reasonable doubt. In other words, they took their oath seriously and were independent.

 

Anyway, I started to get a lot of business, was doing a good job and my practice started growing with the County.

So now comes Bob Brodie to try a case representing one of two brothers, and I to represent the other brother in a fraud scheme where the alleged victims signed away their property allegedly unknowingly in a scheme to get the victims to add on to their house. Bob was Canadian, born in Toronto, and in his teens was ordered out of his home. Bob traveled across Canada from Toronto West to various provinces doing all types of work, a wrangler, lumberman and so forth. Somehow, he ended up in Vancouver in the far West, where he was sponsored to go to the University of British Columbia. After getting his BA degree, the Union sponsored his attending the University of California, Berkeley, where he obtained his Master’s degree in economics. I guess he liked the academic life, so he went to Law School at Berkeley, graduated, passed the California Bar Association test, became a prosecutor for Alameda County DA’s Office, stayed a couple of years, went into private practice with some firm in Oakland, who had this client being prosecuted in Orange County who were expecting Bob to settle the case in rapid manner and then return back to Oakland. Didn’t work out the way the firm wanted. I represented the other brother and in order to make a deal without trial, all those charged in a multi defendant case must agree to the deal. The brothers would not accept any deal so off we go to trial

The prosecutor was Joe Dickerson, a very bright, well-prepared Deputy DA about in his forties, a University of California Berkeley Law graduate as well. Joe was from Arizona, not from a particularly comfortable financial background, and was assigned to prosecute financial crimes involving thefts by false pretenses cases, especially those cases where the victims were generally elderly, naive and susceptible to a “con” type of presentation and duped out of their savings. The Judge was Herbie Herlands, who prided himself with his concept of brilliance. Small in stature, but high in brains. Every day I would bring up some novel theory and Herbie would order Joe to respond with case or statutory law. So one day we were in the judge’s chambers informally arguing one of the issues I had raised earlier, an informal process where there is a Court reporter, but not in a formal setting, sort of a shirtsleeve process. Well as the arguments presented got a little heated and Bob Brodie made some comment, I can’t remember exactly what the issue was, but Joe got really heated, and Joe was frustrated with my baiting him, so he challenged me to step out of the chambers and slug it out, and I of course accepted the challenge. The Judge went bonkers, put on his robe, asked for the bailiff to stop the confrontation, and that ended the matter. Joe and I were about the same build, in good shape, and it would have been a fairly even fight, but nothing ever happened The case was really dependent on the testimony of one witness, an employee book-keeper of the defendants. Joe was not sure if she, the employee, would actually testify against the defendant brothers, so Joe offered a good deal, short time, probation, but Bob and I had done a good job of cross-examination and with the doctrine of reasonable doubt and a good chance of winning,  the defendant brothers turned down the offer. Well, the book-keeper did testify against the defendants topping it off with a comment that the defendants had bragged about how they had misled the victims stating, “We could take everything the victims had;  they had more money in their bank accounts.” We lost, the defendants went to prison and Bob Brodie was not welcome back to his Alameda County Law Firm. So I offered him a job as my first associate which he accepted. Bob was never really comfortable in Orange County, just did not and could not fit in with the Orange County environment, to almost being antagonistic to the culture. Bob was  good lawyer  and also a good friend. One day when we were in the West Orange County Municipal Court , I was asking for some additional time on a preliminary hearing I got a tremendous pain in my diaphragm, called my doctor who asked, among other questions, if I was sweating and with that question, I really started to perspire. The doctor told me to call an ambulance and go to the nearest hospital which was The Westminster Community Hospital, which I did and was taken to the hospital by  ambulance to be observed for a possible heart attack. Bob took over the practice, comforted my family. Strange things went through my mind and I clearly recall my concern was not for me but for my family, wife and two young kids… Fortunately the problem was a hiatal hernia which means there is a break in the diaphragm causing  a reverse of the flow of stomach juices to regurgitate and is quite painful, causing symptoms close to a heart attack. It is amazing when one thinks they are possibly close to death even where the pain is not from a heart condition but some other cause.

Well Bob stayed with me for about eight years, and then took his savings from the profit-sharing and pension fund. Moved to Jackson Wyoming, bought and opened a diner, got a Wyoming Law License, ran and became a Justice of the Peace, which is like a Municipal Court Judge, retired, bought a spread in Montana somewhere and about 3 yeas ago drove his motor home to San Francisco to meet with me and we spent a few days together just reminiscing about the old days. He was my first but not the last hire as an associate.

That’s enough for now.

Marshall

 

Now the jury is finally selected and let’s go to trial. Speaking of the jury, I was not particularly happy with a couple of guys, but what was remaining to be selected looked worse. I should mention again what I am looking for in a juror, or basically, who don’t I want? I don’t want folks who lean to the conservative side. Of course, no one related or friendly with cops or prosecutors. Or probation or parole. I don’t like engineers or teachers, as I find them, as a whole, just too much “law and order.”  I don’t want people who have sat on previous juries. I believe it’s better to have a jury not close age-wise, as they may be harder on the defendant, such as younger people may be harder on another young person and vice versa. Of course, you don’t always get what you want, so the bottom line is I like a jury composed of people I feel comfortable with.

Now the question of when to I make my opening statement in the Lisa P case, right after the DA makes his opening or after he rests his case and I present our side of the story? I generally advise others to make your opening right after the DA to diffuse his/her presentation and let the jury know there are two sides to the matter. But, in the present case, I decided to wait and catch the DA by surprise, thinking it may work better that way. I will tell you, the reader, now that our defense was going to be Lisa was there at Jennifer’s condo to ask her to try to end the relationship with her husband, she was attacked by Jennifer and defended herself by biting Jennifer, but did not stab or kill Jennifer or harm the child. The likely culprit was Jim P, and the proof would be based on time lines and other evidence I would later present. The bottom line was the murder by suffocation of the 5 month old illegitimate child. A jury might forgive a wife victimized by a cheating husband, but never the murder of an infant.

So the DA’s case was presented, setting out the deaths and their causes, then connecting the defendant with the crimes through the DNA on Jennifer’s arm and the statement to Jim P at the station admitting the biting, but not the smothering of the child.

Now it is our turn, and I then made my opening, setting out the defense evidence. I had brought in a great pathologist, the former medical examiner from Dallas County, who was also a professor at The University of Texas, to explain the timing of the bite mark based on the number of white cells in the arm wound which start immediately at the inception of the bite and the increase and decrease of the cells based on an hourly and daily healing process in an attempt to pinpoint exactly when the bite was administered, hopefully several days before infliction of the stab wounds on Jennifer and the suffocation of the child. I have a time line showing Jim P flying from Taiwan to Japan and then to the US, placing him at the location of the murders exactly at the time or close to the time of the killings. There was a lot of other stuff, but basically I tried to pin the murder on Jim P who would have motivation to eliminate the victims as much as the accused. I had a chart prepared by my daughter, Julia, who worked with the pathologist to illustrate how the white cells would gather at various stages of the wound and its healing. They were so good, the pathologist asked to keep the charts to use as exhibits for his medical students.

I really caught the DA flatfooted. He wanted added time to prepare his cross examination and the Judge gave it to him saying, “We thought you were going to present a mental defense”. The term “we” was not lost on me, and I remember that comment to this day “We!” Who the devil is we? The DA got his request, but his cross was not effective, as he had not prepared for the type of defense presented.

Well, the case went on, and, after argument, the jury was instructed on the law and went out to deliberate and after several days, they  could not agree to a verdict and the judge declared a mistrial which means we have to start over again. But it was a start in the right direction.

The case was assigned to Judge Jack Ryan, a personal friend of mine, but Jack never let our friendship interfere with his rulings and conduct of a case. Now Jack was not a typical judge. He grew up on New York City’s West Side, known as “Hell’s Kitchen,” a very rough part of the city. Jack is powerfully-built and around 6’3″, with a flash Irish temper, but he gets over it just as fast. He joined the US Marine Corps, where he rose to “Gunny” Sergeant, the highest non-commissioned officer’s rank, and then retired. Later, he became a bouncer in a local Orange County drinking establishment as he was a very big and tough guy. He decided to go back to school, was admitted to USC’s law school, graduated, passed the California Bar Association’s admission and certification exam, became a Deputy DA in Orange County, and rose through the ranks to the highest grade in the DA’s Office, assigned to the most difficult and complex cases. Then, he ran for judge and won, ending up in charge as presiding judge of the criminal calendar, settling and assigning cases, and to this day, he is still active after his retirement as an assigned sitting judge in one of the Riverside County’s courts and is a teacher to new judges who must attend judges’ school before they get a permanent assignment. The course and his writing are directed to the complex sentencing procedures that were created by the State Legislature. However, he still speaks with his New York West End accent full of “dees,” “dose” and “dems.” He has a heart of gold. When his next door neighbors were killed in a car accident, Jack and his wife, JoAnne, immediately adopted the surviving children and raised them as their own. I will eventually get to the substance of The Orange County Bench and Bar on later blogs, as I have been struggling on how to explain how the system worked though appearances of conflict may appear, but I can guarantee you there was no conflict.

So, now trial #2. Same evidence, but now the DA was better prepared, The DA brought in the County Medical examiner to contradict the defense pathologist and, frankly, I thought I was able to destroy him with inconsistencies, plus pound on the fact that the medical examiners office had somehow misplaced the vial of excised bite mark that could have fixed the time of bite versus the time of death.With losing the pretrial ruling regarding the accused’s statement to her husband, the case was not as strong for the defense as the first trial. The DA did in his closing argument what I feared in the first trial; he showed that it took the child about 5 to 6 minutes to die by suffocation and, in his closing, just stood there in front of the jury for 5 minutes of silence with the child’s autopsy picture hanging on the exhibit board, and I knew it was not looking good and it wasn’t. The jury convicted Lisa of Murder 2nd of Jennifer and murder 1st of the child and she was sentenced to life without parole. But that didn’t end the case.

I searched for the best appellate lawyer I could find, and after interviewing several, I selected, or should say, recommended Chuck Sevilla of San Diego. probably the very best, who took the case on appeal. Guess what? Based on my work, the appeals court reversed the conviction based on a finding that the statement Lisa made to her husband was improperly admitted, as she had asked for an attorney and, under the Miranda case, her Constitutional rights were violated, as the court found as I had urged: Jim P was acting as a police agent when he was instructed to talk to Lisa and get her to admit the stabbing.

So now the case was back for yet another trial. We had a disagreement regarding my fees for a third trial, so they hired John Barnett, a very good defense lawyer and they had a third trial which ended up like the first, with a mistrial, as the jury could not agree, so finally, a deal was worked out; Lisa admitted the killings in exchange for a deal, namely a plea to manslaughter of Jennifer and Kevin,  and she was sentenced to time served, about 8 years, and was then released to return to Taiwan.

I can’t write about the third trial or the final result, as I as not part of it, but Chuck Sevilla, the appellate lawyer, personally told me after it was all over, Lisa should thank me over and over again for saving her years and years of prison. Let me make it clear, I get no satisfaction defending accused, but I really enjoy the combat of minds in the criminal trial system.

Marshall

Now those jurors in the Lisa P case who had been excused due to hardship or other reasons, such as an already-paid vacation presently pending, or whatever, and after the rest of the panel had completed there jury questionnaire form, and such forms have been reviewed by both sides’ attorneys and the judge, the attorneys and the judge informally agree in the judge’s chambers which of the jurors have expressed themselves of definite bias and do the parties agree to their excusal, we now had a panel, and the process of jury selection begins. Generally, and in this case, 12 jurors are called in a random manner by the Court Clerk and re-seated in the jury box which is an area in the courtroom located  perpendicular to the judge and the tables where the prosecutor sits and the defense table where the defendant and his/her attorney also sits. I have never liked the arrangement, as the prosecutor and his investigator, generally a police officer, are directly next to the jurors while the defense is seated further away. I have noted during the course of a trial, after every recess, prosecutors are trained to stand facing the jury as they leave and also when they return, smiling and acknowledging the jurors as they pass by in close proximity to the DAs, who stand there smiling at the leaving and returning jurors, and, in my opinion, for only one purpose: to gain a connection with the jurors. I hate it and it should not be allowed. There in State Court that’s the procedure of ingratiating oneself to the jury panel, but in the Federal Trial Courts the courtrooms are much larger and the Federal prosecutors are not permitted to conduct themselves in the manner of the State Prosecutors. I had objected to the procedure unsuccessfully, as the judges, like most of them, are former DAs, and the judges generally say there is nothing wrong with the procedure as it is just a sign of respect.  On one case I grabbed the desk at counsel table normally reserved for the prosecution. The bailiff tried to make me move, grabbed my files and we ended in a tug of war, and I would not budge. The judge, who was new, asked me nicely to sit where defense counsel normally sits, and I gave in and moved. I have done some irregular things over the years and am reminded of one case where the DA was addressing the jury in such a manner that I could not see what pieces of evidence he was showing the jury, so I just plopped into one of the empty seats in the jury box and he then was forced to address the jury with me sitting with the panel. The location of defense counsel unnerved him, and broke his argument’s organizational presentation ending with a favorable defense verdict.

Anyway, back to the jury selection process, which in a major case, can take quite a while. I might mention in the old days I would often waive a jury when I thought a judge would go rule in my favor, but not anymore. In the old days a judge pretty much was assured never to lose an election, plus lawyers were reluctant to run against sitting judges for office. Not so today, where the job of being a judge can be precarious, particularly when the judge rules based on the acts and law, but unfavorably in the court of public opinion. It all started with Deputy DAs running against seated judges based on a “Law and Order” presentation. Even the State Supreme Court took a hit under the Chief justice’s Rose Bird Court in the 70s or 80s when the Chief Justice and 3 of her Associate Justices were removed from office by the voters due to death penalty rulings. In my opinion, today I think judges should be appointed for a life term, subject to removal for misconduct in office. Never thought I would take that position, but that is the way I believe today I never waive a jury anymore unless I have a guaranteed result. From my experience over the years, I think jurors come to the right decision a lot more than judges. The job of being a judge is too political these days in my opinion.

Anyway, with the help of the previously mentioned jury consultant, I agreed to accept the jury and so did the DA. I should have mentioned that in a life case, each side gets to excuse 20 jurors without a stated cause, called a peremptory challenge, as well as excusing a juror for cause. So the process takes a while to select the whole panel. In the Lisa P case, one of the alternate jurors was actually a deputy DA in the same office working under the authority of he elected DA who professed she would be fair and not lean favorably to the DA’s case, and even after heavy questions by me, stuck to those answers and the judge would not excuse her, which required me to waste a peremptory challenge to kick her off. The bottom line is each side is looking for a juror they feel comfortable with and neither side is really happy with the final selection. Maybe that is good, don’t know.

Next, the DA makes an opening statement outlining what he/she expects to prove, and in the present case, the DA laid out his case, basically the murder of Jim P’s mistress, Jennifer G, by stabbing  to death and the suffocation by pillow of their 5-month old baby through DNA evidence connecting Lisa’s DNA on a bite mark on Jennifer’s arm matching Lisa’s DNA. Pretty simple forward presentation. Now it was my turn.

The defense can either make an opening statement immediately after the DA’s opening or can reserve its opening until after the DA rests. I have chosen both approaches depending on the case. This is where Jim Rasicott, the jury selection expert, was worth every dime he earned, as I had someone to kick around theories with, and we both agreed the worst part of the case was the death of the 5-month old child. A jury could perhaps forgive a wife for killing her husband’s lover, and if not a “not guilty,” then maybe a lessor degree of offense, such as manslaughter, which carried a substantially lesser sentence than 1st degree murder. So do I wait for my opening statement until the DA rests his case, or open right after the DA has made his statement? Either one would be OK in some way. This is from memory, and my recollection is I would wait until the DA rests and catch him off-guard

Enough for today…soon to the trial.

Marshall

I know this log is somewhat late, but sometimes I just can’t get in the writing mood. So, please just bear with me and keep checking for new stuff. Lately lots of things crop up in my mind over past experiences and I note them for future posts Anyway back to the Lisa P case.

As mentioned in the previous blog, the case of People v. Lisa P was assigned to Judge Kathy O’Leary for all purposes and the pretrial motions were made and denied, so it’s time to get a jury. Now Kathy was recently in the news as of June 27, 2017 where, as a judge of the 4th District Court of Appeals, the court that hears appeals from the trial courts in Orange County, wrote an opinion upholding Superior Court Judge Tom Goethals ruling of a granting of a retrial in a 1st degree murder case based on a finding the Orange County DA’s Office committed errors of Constitutional dimensions, granting a new trial to a convicted murderer by failing to disclose by the Orange County Sheriff’s Jail division that the main witness against the accused was a long time “snitch” placed in jail cells of various inmates to secure alleged statements incriminating his cell mates including the one in the case presently before him. Kathy wrote the opinion joined by two other appellate judges in a written opinion (not published in the California Reports but will be shortly.) The trial judge, Tom Goethals, is the son of LA County Deputy Public Defender, Dick Goethals, who I knew very well when I was a LA County prosecutor; Dick was assigned to the same Court I was and we dealt or tried cases against each other for years. Dick was a Supreme Lawyer in every respect, fought hard for his clients, and always was the gentleman and ethical advocate. I respected him a great deal. Now Tom, Dick’s son, started his career as a good and honest and ethical prosecutor for the Orange County DA’s Office, rising through the ranks to a top position, assigned heavy cases including several murder cases. Tom eventually went into private practice and joined  one of his former prosecutors in criminal defense. He was good on both sides, DA -Criminal defense. We had a joint defendant case in the LA Court located in Pomona, involving possession of illegal weapons, basically repeating rifles that allegedly could be made fully automatic. Interestingly, the attorney for the National Rifle Association, Mitchell (forgot his first name) gave us a lot of basic information regarding the rifles and, to my memory, we beat the case on some technicality, and Tom was just great. A real pleasure working with him. It’s sort of humorous, as Tom was not the only son or daughter I had come up against or worked with over my many years of practice. Tom not only granted a new trial in the case I am writing about, but he had been involved in a present death penalty case where he kicked out the whole DA’s Office of Orange County based on the Sheriff,” withholding information concerning ” a practice of jail snitches and appointed the State Attorney General’s Office to handle the penalty stage of the trial, as the defendant had been convicted of murder 1st and is considering a sanction of imposing life without parole denying the prosecution from obtaining the Death Penalty. The decision to recuse (kick out) the entire DA’s Office in that case was also upheld (affirmed) in the Appellate Court.

Now in the Lisa P case, working with Jim Rasicott, the jury consultant, we prepared a jury questionnaire setting out questions for the potential jurors to fill out with questions concerning their knowledge of the case, their opinions regarding the death penalty such as “never rule for death” ( I should mention the DA also submitted a questionnaire and the judge and attorneys would gather in the Judge’s chambers and hash out a joint questionnaire encompassing a mixture of the two questionnaires. When the questionnaire is finally agreed upon or, if not agreed, objections are raised, the judge would finalize the questionnaire. The jury commissionaire would then send several hundred potential jurors to the Court, a copy of the questionnaire would be given to each potential juror to answer the proposed questions, a date would be set for a return of the potential jurors and copies of the now-filled-out questionnaire would be given to both sides to review for potential bias and objections as well as hardships, such as physical inability to sit lack or understanding English, and loss of income or job or anything that would prevent a juror from sitting and judging the case. I have had lots of cases where a juror for religious or other reasons states they could not sit as a juror. After review the parties would have to return to court to make their objections and start the jury selection process hoping to get twelve actual jurors and, in this case, four alternative jurors. An alternative juror  generally is seated and would replace a sitting juror at any time, including when the case has concluded, arguments made, jurors are instructed as to the law and the deliberative process begins, and even when the jury is deliberating and trying to reach a verdict, if a juror becomes ill or refuses without cause to deliberate, they could be excused and an alternate juror would be selected. That juror replacement occurs quite often in a lengthy case.

Jim Rasicott, who I mentioned in my earlier blog, and I sat down and reviewed all three hundred questionnaires and graded each juror on a scale of one to five, five most favorable and zero, or one, the least favorable, After comparing our grading, amazingly we disagreed slightly in our rating of the whole bunch only five times, and only by one point- such as I might grade the potential juror a four, and Jim would have the juror as three or vice versa. That told me I could read people as well as anyone, and I really do not need  a juror consultant. The bottom line is you can never know enough about a potential juror in the short time, even with questionnaires, to really get at their biases and prejudices. I have a method I have successfully used over the years, particularly with drunk driving cases, where I ask the jurors if they would eat frog’s legs or snails (escargot.) I get several hands, and then I follow up with have they ever tried the dish and who has never tried them. I point out that bias or prejudice, to pre-judge, is not a bad thing and it is not wrong to be prejudiced or biased regarding drinking drivers and then go on from there, and you would be surprised how many potential jurors admit they could not be fair just based on the charges. That holds true or all cases not just DUIs

Now I wrote I didn’t think I needed a jury consultant, but Jim was most helpful in trial strategy which will be reflected when I write about my opening statement.

Enough for today….been at this or two hours and will get back later.

Marshall

I don’t have a schedule for blogging; it’s just as the mood hits me to write. So, just keep checking, and some new information is likely to pop up. I like to write, but the mood is not always there.

Lisa P’s case now was in the trial court presided by Judge Kathy O’Leary and prosecuted by Deputy District Attorney Robert “Bob” Molko.

Kathy was a former public defender who was appointed to be a judge by the Governor. Her primary job as a public defender was to represent the PD’s clients in the Master Calendar Court, Department 5, presided over by various judges for one or two years. The Master Calendar Court handled all felony arraignments, where the defendants are informed of the charges against them, enter a plea of either not guilty or guilty, and it was also the place to file motions such as Penal Code Section 995, where the defense challenges the sufficiency of the evidence presented at the preliminary hearing, saying “not enough evidence to show a reasonable probability the evidence presented is enough to make an accused go to trial.” Another motion that may be made in conjunction with the preliminary hearing is that evidence was improperly admitted or was in violation of the US Constitution, such as an illegal search or seizure tainted the evidence as a 4th Amendment violation. Also, deals were struck at the first appearance arraignment date and Kathy was really good at getting great dispositions in Department 5. She is, to this day, really smart, knowledgeable and well-respected as a judge. As a matter of fact, she, some years past, was elevated to be a Justice of the Fourth District Court of Appeals, where she, as of this writing, still presides.

The prosecutor, Bob Molko, a tall dark-haired wiry-built, pretty thorough DA who put in plenty of hard work on his cases, plus he was extremely intelligent, and also a pretty fair guy whom one can talk to.

The first thing in the case was to try to talk the DA out of seeking the Death Penalty in this case where a 5 month old baby was suffocated, presumably by a pillow, in his crib, and also my client was accused of stabbing the child’s mother, who was purportedly the mistress of my client’s husband. After a lot of conversation back and forth, the DA’s Office, through their Death Sentence Committee agreed not to seek Death in the case, but Life Without Parole was still on the table. There was an offer of straight life, I believe, but was rejected by the Defense. So, after the in-Chambers negotiation, a plea of not guilty was entered and the case was assigned for trial before Judge Kathy O’Leary for all purposes.

Well, I had two major pre-trial issues. One, the DNA still had not been blessed by the Courts as an accepted scientific test of evidence comparison like fingerprints, and it was still controversial as a guilt by probabilities speculation, as opposed to a scientifically sound piece of evidence. The defense attack on DNA was decided by the trial judge by a pretrial motion The second attack was against the statement made by the client to her husband on the basis he was acting as a police agent when he was placed with the accused in a separate room at the Sheriff’s Office where the conversation was recorded.

There are a lot of things that had to be done in the defense case. I needed a Chinese interpreter to help me converse with the client. The court would provide a court interpreter, but I wanted my own. I needed a pathologist regarding the bite mark, for re-checking the DNA sample as well as aging. I wanted a jury expert to help in theory of defense as well as help in designing a jury questionnaire. I wanted a bite mark expert and a pathologist to check the coroner’s findings.  Because Kathy had a reputation of some bitterness towards old-time defense attorneys who she allegedly referred to as “the good old boys” I engaged Richard Schwartzberg. a prominent appeal scholar to handle some of the legal issues that may crop up. It didn’t hurt to know Richard, formerly in charge of the Orange County Public defender’s Writ, Motions and Appeals Department, and him being a good friend of the judge wouldn’t hurt. Now the DNA had to be attacked as speculative evidence, so I had the pleasure of hiring Paul Stark, a former Public defender senior trial lawyer, in my firm previously.

Paul is a big guy. Over 6 feet tall, husky and very smart. He was a grade 5 Public Defender, and that was about as high as one could go in that office. He asked to come to work for me, and I grabbed at the chance of enhancing my firm with his great talent. Interesting to note: Paul was a very observant Jew who would not work on Saturdays, the day of Shabbat or the Holy Day, which was okay, as he worked on Sundays. Paul lasted about two years before he stretched his wings and joined up with his buddy from the public defender’s office, Richard Schwartzberg, who was mentioned previously. Well, Paul practiced law with Richard for a period of time, but eventually moved to Israel, moved to Jerusalem, opened a law practice and eventually, like so many of my associates, today is a judge in Israel. Paul knew the DNA controversy very well, so I brought him back to Orange County so he and Lynn Patterson could present the defense position regarding DNA evidence. They did, but Kathy O’Leary only took three weeks to read all of the brief and all the scientific articles and then ruled the evidence was reliable, so the evidence of DNA and the bite mark could be presented to the jury.

Next, the attack on the statement from Lisa to her husband. I took that portion together with Richard and did one heck of a good job. The police interrogation was a brutal series of threat and accusations, including threats to prosecute her boys, lasting for hours and denying her continuous requests for a lawyer and desire to leave. Lost that ruling and the admission of biting the victim was going to come in. Things weren’t stacking up so well for our side as far as pretrial evidentiary motions were concerned.

So a date was set to proceed with the trial.

This was one of the few cases where the accused, through her husband, could afford to pay not only for my services, but also all of the needs including investigatory costs. No doubt the system favors the wealthy. I even brought in James “Jim” Rasicott from St. Paul, Minnesota, after interviewing other jury consultants, to help me select a jury. Jim has a PhD in social sciences and was a recognized jury expert. I had never used a Jury expert before, and was somewhat leery of the whole deal, believing I could pick a jury without such help, and I still think so, and will explain more as we move on in this case. Actually it wasn’t Jim’s credentials that swayed me, but the fact Jim was a pocket pool shark as a hobby, and on his travels, would go to a pool hall in some town and take on the local sharks for cash. That impressed me, as it would appear he would have to make quick judgments about people on very little evidence. Actually a very close friend and attorney, who practiced in San Bernardino and Riverside counties, and was just a brilliant lawyer, certified as an expert, and the only one in California both in criminal law and domestic violations by the California Supreme Court, used a bartender to help him evaluate jurors as he believed bartenders have to make quick decisions regarding their customers. Taxi drivers probably the same.

With Jim, I was able to try out my defense approach to a mock jury, first time for that. I played both prosecutor and defense and ended up with a split, but hung, jury, and revised the defense approach as a result. It was worth the expense.

So now to the trial with jury selection and opening statements, and the final result, which will be my next blog.

Marshall