They All Steal, Said The Liberal

by Bruce McEwen, May 25, 2011

In many cases recently, the decision of the AVA seems more important to the defense than the decision of the judge. --Anonymous Ukiah attorney

* * *

Reading the Gualala-based Independent Coast Observer during a lunch break at the Courthouse, I was interrupted by Mark Wuerfel. This was scarcely a nuisance. The ICO, as it is called derisively in the local vernacular, is a wry acronym that refers to the paper’s editorial posture: “I see zero; I hear naught; therefore, I say nothing.” Despite the valiant title it is “independent” of nothing, least of all the mainstream press; and while it may actually be on the coast, it lacks the detachment and style one expects from a truly disinterested “observer.” So Mr. Wuerfel’s arrival was like being interrupted by a TV commercial.

Defendant in a long-running case we’ve been following, Wuerfel was of course hoping to sell me something: his innocence. It was hard to tell which was the more tedious line of ad-copy-masquerading-as-objective-editorial, the ICO’s or Wuerfel’s. So I didn’t observe the convention of folding the paper away and coming to my feet. I just held it there while Wuerfel told me his tale of woe: how he’d been wronged, how reasonable he was trying to be, how ready he was to make concessions in the interest of judicial economy, and so on.

After a time, I offered to show him what the AVA had just that morning published about his case, so that he might avoid going back over plowed ground.

“It’s only a dollar,” I cheerfully noted, handing him a copy of America’s Last Newspaper — the one with his name on the front page.

As he took it, my eyes locked on his free hand, like a dog used to getting either a treat or a swat for his tricks. The hand didn’t go towards a pocket, so I began backing out of reach.

Wuerfel skimmed a couple of sentences and wagged his head dolefully. He said it was too bad I didn’t try to see what was really going on in the case; and ‘twas a shame I couldn’t write any better than I did; and what a pity it was that he would have to waste his own valuable time writing the case up himself for the local papers, for the sake of the locals, so the people in Mendocino County could really — finally — see The Truth.

Mr. Wuerfel reminded me of my college days. Having joined the Marines when I was 17, I was already a veteran when I went to college on the G.I. Bill at age 20. As a “non-traditional” student, the other 20-year-olds on campus were far ahead of moi in their studies; moreover, these high school-certified scholars dismissed my GED as a margarine-like substitute for the high school diploma they got, which can be had at any public high school in the country whether of not you know how to read.

You have to know how to read to get a GED.

Stentorian as Cicero, Wuerfel barked out at me the faux eloquence of law book dog Latin. Having left my legal dictionary in Fort Bragg, I didn’t look up the terms he woofed at me. But it doesn’t matter. Legalese may seem precise to those who use it but to ordinary people it's so much gibberish. It might elevate the Legal Beagle in the estimation of Mutt & Jeff, but it only obfuscates the meaning of what is being said. Which is its point.

I told Wuerfel I looked forward to reading his take on what’s “really” going on with his case, and wished him godspeed in ripping it out.

Encouraged by my facetious flattery, Wuerfel returned to his favorite subject: himself.

As Wuerfel lectured me on his virtue (the while polishing the collet of his ring on the lapel of his suit), Judge Ann Moorman entered the hall in the company of her clerk and bailiff. The party hesitated perceptibly, if not blanched, as they noted the Wuerfel-dominated scene then, frowning, scuttled on into chambers. Judge Moorman had already warned this defendant to address his case to her, not the media.

And the Wuerfel Whirl resumed.

As a first order of business, Judge Moorman wanted to know if Deputy DA Ray Killion had received any of the information she’d asked for in the previous hearing, such as an inventory of items seized from the Wuerfel Law Offices and a variety of documents now apparently in the possession of the DEA.

“Mr. Killion, what did you hear from the folks at the Federal Government?”

“Nothing at this point, your honor.”

“Hmm…”

“The Agent I spoke with said he’d send me a photograph, but…”

“A photograph of what?”

“I don’t know.”

“Hmm…”

“I do have copies of the search warrants and affidavits, and an inventory of the items taken, however.”

“A complete list?”

“As far as I know.”

There had been some talk about the Feds prosecuting the case, but now that seemed to be off the table.

Killion said, “It’s my understanding they are not going to do anything about either Wuerfel case.”

Justin Petersen, attorney for attorney Mark Wuerfel in one of the cases, said he still wanted to know about the two missing banker’s boxes and the data on the thumb drive taken in the most recent 2010 raid.

Killion said, “Nobody downloaded anything on thumb drives at that time; we didn’t do it and they [the DEA] say they didn’t do it.”

“We probably haven’t heard the last of that,” Judge Moorman wryly observed.

Wuerfel said, “Your honor, we have witnesses, standing on the porch, where law enforcement placed us, watching through the windows. It was dark outside, but they had the lights on inside.”

Moorman regarded Wuerfel impatiently if not ruefully. As a lawyer he knew this was no time to be trying to enter testimony that would be called for at a prelim or trial. Besides which, lights on or lights off, Wuerfel's witnesses could be depended on to relay the world according to Wuerfel.

Petersen changed the subject. He was wondering about the analysis from the computer forensics laboratory.

Killion said he’d talked to a woman there about it who promised to look into it, but hadn’t gotten back to him yet.

Wuerfel was still trying to enter evidence, acting as if he were testifying under oath in a trial.

“They made me open my safe at the law office,” he said, “and took boxes out of there regarding a medical marijuana dispensary in San Diego.”

I had this sudden picture of Wuerfel on his knees with Sgt. Bruce Smith's .357 to his head, frantically dialing the tumblers on his safe.

I haven’t seen a judge use a gavel since I was a kid, but Judge Moorman looked like she might find a use for one just then. Surely, she was on the brink of her patience and about to say something, but then Wuerfel startled everyone with an amazing development.

“This whole thing can be settled in just a few minutes, your honor. Keith Faulder is going to meet with Mr. Eyster this afternoon and work it all out.”

Right on cue, the dapper Faulder appeared, confirming Wuerfel’s surprise announcement.

“With your honor’s leave,” Faulder added unctuously.

“By all means,” Moorman said. “What do you want to do now? Bring it back tomorrow?”

Faulder said, “I’ll be in court all day tomorrow… on a different matter, however. I’ll need two days, at least. Could we go out to the 24th?”

“Mr. Killion?”

“It’ll have to go through Mr. Eyster, your honor; but sure, I’m game.”

“Mr. Petersen?”

“Works for me, your honor.”

Wuerfel turned to me and lifted an eyebrow into a question mark. I closed my notebook and left.

In many cases recently, as the attorney said, the decision of the AVA seems more important to the defense than the decision of the judge.

* * *

“Tomboy Thompson,” they call her at the jail. The jailbirds, the “frequent flyers,” have nicknames for all the professional personalities who spin them through the revolving doors of justice. And Public Defender Linda Thompson, who dresses in menswear, is the one they all know best, The Tomboy.

This is not to say they dislike her. In fact they don’t dislike her. A lawyer of middling ability, sure, but the manly Ms. T hops the hopeless through the Courthouse hoops as painlessly as any multiple substance-abusing vagrant can hope to move through the system.

But when the crimes are serious, when the hoops are lit up with real flames, and the cops have their hands on their guns, and the crowd is starting to get all keyed-up… well, that’s when Ms. Thompson tends to snap her suspenders.

Dare I remind the reader of the last three — strike that — the last four or five homicide cases that Linda managed to convert to life without the possibility of parole when the DA was offering 15-to life? No wonder Ms. T has faced more Marsden motions (demands that she be removed from the case) than any lawyer in local history. No wonder the heaviest jailbirds squawk in protest when Linda takes their cases.

Appointed Public Defender by a feminist-leaning Board of Supervisors (pseudo-feminist, to be precise — if Colfax was a feminist, the editor remarked, he'll be pitching for the Giants against the Marlins next week) the Supervisors rightly assumed that Thompson wouldn't break the bank defending the indefensible. Those boys up on serious charges, well, those boys got a minimum of 50 years, and some of them went away forever.

Right now, Ms. T has a  female client up on serious charges — unheard of since before Lintott’s day — and it’s interesting to watch the gender dynamics. Two female reporters, Tiffany Revelle of the Ukiah Daily Journal and Glenda Anderson of the Santa Rosa Press Democrat were both granted interviews with Ms. T. Guess who wasn’t granted the time of day?

That’s right.

When Lintott was in the DA’s office I was snubbed by both sides, so it’s nothing new to me. But still.

Neither of these dependably mainstream journalists asked Ms. Thompson to comment on her remark, delivered in open court, that in-home caregivers were “mostly criminals and all thieves, who steal from the people they are supposed to be helping.”

If a male attorney said that Mary Ann Villwock would come running up State Street with hatchets in both hands.

Which brings us to Nancy Jo McGinty, 51, formerly of Willits. She is being held on charges of attempted murder and arson of an inhabited dwelling with a special allegation that she used propane and oxygen tanks as accelerants on December 14 when she is alleged to have set fire to the home she shared with her quadriplegic son. She left the building, he didn't. Ms. McGinty reportedly said the fire was an unsuccessful attempt at murder-suicide. The murder was averted by the neighbor who pulled the crippled son from the burning home; the suicide was averted when Mom exited, under her own power, the premises.

Thompson said McGinty had alone cared for her totally dependent 31-year-old son for the last four years and had been under so much pressure that “she lost it one day in her life.”

That Mrs. McGinty "lost it" is certainly true. She'd never been in trouble before.

Imagine yourself as sole, unrelieved caregiver for an adult son unable to perform, unaided, his most basic bodily functions.

There were, however, other more incriminating circumstances.

But this was only a bail hearing, not the full-on trial. Thompson wanted to get McGinty out of jail.

Mrs. McGinty herself wanted to go to her sister’s house in Danville, but the unhappy facts of this matter are fuzzily to the disadvantage of Ms. McGinty.

A neighbor had rushed in to drag the paraplegic son out of the burning house. Ms. McGinty appeared in the burnt out home the next day passed out in the bathtub.

Thompson said her client admitted to torching the house but visiting Judge Robert Baysinger should pause to consider the circumstances. It was the middle of December, coming onto Christmas, and Ms. McGinty was tired, Your Honor, tired of being her crippled son's slave.

“Sure,” Thompson said in the kind of statement that works dramatically to the disadvantage of her client, “The fire could have taken out the entire neighborhood, but the important thing to remember is it didn’t.”

Ms. McGinty, handcuffed, was an upright sad sack in her orange coveralls. Her clothes matched her red hair. I was reminded of that allusion from Hawthorne, the personification of a flame. Thompson, perhaps readying herself for her next incriminating zinger, leaned against the rail idly waggling her Florsheim wingtips.

“She’s not a danger to the community, Your Honor,” Thompson said after a couple of beats. “She’ll make any and all court appearances. I believe she’s a good candidate for a bail reduction, and would ask the court to reduce her bail from $125,000 to $50,000. I’ll know better after I finish my investigation, but chances are good, ahem, quite, perhaps even very good” — she flashed a smile at a stonefaced DA Eyster — “that this case will resolve early, I’m very confident.”

Thompson continued, “A couple of things, Your Honor. One, she has no criminal history. Two, she’s lived in this area many, many years, she’s well known and, er, uh, outside this highly uncharacteristic and completely aberrant incident — brought on by circumstances which are widely known from the prelim and publicity the case has attracted—”

Publicity in the Mendo context means pared down press releases from the cops or the DA re-written by the Press Democrat's Glenda Anderson to include a couple of rote quotes from the authorities. "When we got there it was a wall of flame." Etc. It's hardly as if the world's media ever rushes in like Mendo had anything going as earth shaking as Arnold's love child.

Thompson obviously had more to say, but she wasn’t really talking to the judge, and she stopped when she saw Eyster move — he’d stepped back, turning like a dancer, but he came back around with a page out of a file, flourishing it like a parade saber. It was a legal instrument.

“Do you know what this is?”

He didn’t even have to ask. Everyone knew what it was.

Eyster swished his paper saber back and forth before it disappeared back into the file.

“Judge, Count I, attempted murder, is $125,000 on my bail schedule.”

The Honorable Judge Baysinger, his white flash of residual strands of hair dramatic on his bowed head, studied his own bail schedule through his spectacles and came to the same conclusion.

“Then,” Eyster added, “there’s the arson: Count II, another $100k; and of course the Special Allegation of use of an accelerant for, let’s see… umm… oh, yes, here it is: another $25,000.”

Judge Baysinger wet the tip of his pencil like a scholar and performed the sums on his blotter.

“Yes… I do believe you are right, counsel… ah, just so. $250,000 exactly… Go on, then…”

“Well, this was supposed to be a murder/suicide. But she ran out.”

Eyster didn’t mention that the other party to the murder-suicide pact did not have the option of “running out.”

“She was about to lose the house to her ex,” Eyster announced suddenly, referring to another document he’d brandished. “And I don’t believe for a minute that she was on her own for the last five years [in caring for the victim]. This was arson for what I consider vindictive reasons.”

Eyster added, “I can't think of a case in which we have a better reason for [the existing] bail. She clearly is a danger to the community and possibly to herself.”

Thompson shoved herself off the rail and mimed John Wayne in her body language, rolling her shoulders and swinging her legs forward like stilts. Then she dimpled her brows and spoke:

“She says the in-home helpers were criminals. We all know that. They stole from her, like they do everybody. I’m not saying it’s right, but that’s the, uh… you know… well, to portray this as vindictive is well, just, you know, but, first, I’ll have to finish my investigation. In the meantime, I do not believe she’s somebody the court needs to protect society from.”

“My understanding is that they both wanted it over with; [the DA’s] claim is that she made the decision for both of them. I'm going to dispute that,” Thompson added. “She had no real malice toward her son.”

Tough love?

The platinum stranded lion swung his head back and forth, pondering the imponderables.

“I’m looking at an arson situation, here,” the judge said. “Also the victim was particularly… urghmn, fragile, if you will.”

Will or won't. He couldn't move on his own, and death by fire — Mom's fire at that — is a hard way to go.

The District Attorney chose not to increase the bail and the judge refused to decrease it. The bail reduction was denied, but Thompson was already over talking to Glenda and Tiffany about how badly she got screwed by Mr. Man.

Mrs. McGinty is set for a June 27th trial.

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