Poisoned Rainbows

by Cody Hoover, June 15, 2011

“Even damnation is poisoned with rainbows.” — Leonard Cohen

“I'm going to ask if anyone needs an interpreter,” announced the mustached court interpreter to the morning gallery at Ten Mile Court in Fort Bragg. A group gathered in the front left side of the gallery and the interpreter spoke to them all in Spanish. The Ten Mile Court seems to always get its non-English speaking Mexican defendants through the system early in the morning so the interpreter can go home.

As a defendant stood and spoke to the court about driving without a valid driver’s license, the inevitable Captain Fathom entered the courtroom through the back doors. He had on a checkered suit jacket, buttoned billed hat, sweatpants, and cross-country running shoes. Fathom spoke briefly with Bailiff Kent Rogers and Public Defender Thomas Croak over the bar then bolted out of the courtroom.

The court soon ran out of morning cases. Judge Brennan said they were going to clean house. He dismissed cases, recalled warrants, then said, “We'll be in recess until we get the in-custodies in.”

It was a very short recess. I re-entered the room just before court was back in session. Five prisoners, who had been driven over the hill from Ukiah with a tank of gas and some jail staff provided by the taxpayers, sat behind the plexiglass. A bald, mustached officer sat nearby to keep an eye on them. A young woman lawyer and an interpreter spoke to incarcerated defendant Souvanna Vongphouthone who stood with his wrists chained to his waist. Brennan called Vongphouthone's case. On April 19th of 2010 the Laotian was caught with 13 abalone, ten over the daily limit. He pleaded guilty to “unlawful possession of over limit” and “destroying or hiding evidence.” He received two years probation, a $2,611 fine, forfeit of all seized equipment, and surrender of abalone license and report card. He was ordered released after already serving 19 days in Mendocino County Jail.

Captain Fathom re-entered the courtroom. He had made a second costume change into trousers and a button plaid shirt like so many defendants wear in often heartbreaking attempts to appear presentable to the court. He stood beside the Beacon and Fort Bragg Advocate court reporter Don Claybrook, staring at Claybrook's briefcase in the seat next to him until Claybrook moved it and Fathom sat down.

Patrick Humecky appeared next out of custody and was arraigned on a “possession of concentrated cannabis” charge. He sported a leather satchel and had wispy grey hair in the back of his head.

“Do the people have an offer?”

The Deputy DA offered Humecky a “deferred entry of judgment.” Humecky would have to enter a guilty plea at the onset. If after a year he has not had any more violations, the guilty plea would be reversed. Humecky is coming back with a lawyer on July 12th.

In the row of chairs in front of me, Fathom whispered loudly to Claybrook. I was relieved that Fathom didn't remember me from our first meeting a few weeks ago at an ATM line in Ukiah. Fathom left the courtroom just before Brennan called a recess until 1:30pm.

I drove over to the grocery store by Hare Creek where the cash registers were named after Mendocino coastal towns down the row: “Westport, Fort Bragg, Caspar, Mendocino, Albion, Elk, Point Arena, Gualala…” As I read down the aisle and came to the southern part of the Mendo Coast, I was reminded of a trial that had taken place over the last year.

From May 11th to the 13th of 2011, a jury trial was held for Robert Stanley Sherman at the Ten Mile Court. He was represented by Bart Kronfeld. The jury consisted of six men and six women. After the three days it ended in a mistrial. Apparently the jury wanted to see more forensic evidence, what some call the “CSI Effect.”

Back on May 21 of 2010 the story began to unfold inside of the Ten Mile Court building. Back then it was Judge Jonathan Lehan's court. Sherman was a no-show for his scheduled preliminary hearing. Representing Sherman for the preliminary hearing was the law offices of Kalina and Kalina. Mr. Mark Kalina (former Coast prosecutor) spoke to the court.

“He's obviously not here. I haven't received any information from him in regard to his failure to appear this morning,” then apologized to the “south coast” people who came to testify.

“If I'm not mistaken the prospective witnesses are members of the Elk Community Services district,” said Lehan, in a question skillfully posed as a statement.

“Yes,” said Deputy DA Tim Stoen representing the people of Mendocino County. Stoen told the court that the witnesses were Mr. Robert Matson and John Ross, both assistant fire chiefs of the Elk Volunteer Fire Department.

A couple months later on July 9th of 2010 Robert Sherman was present in Ten Mile Court for another attempt at a preliminary hearing. He was facing felony charges of alleged theft, possession of stolen property, and forgery.

The first witness on the stand was Mr. John Ross. Stoen conducted the direct examination. Ross said that he had been involved with the Elk Volunteer Fire Department for 15 years.

“Were you aware of what water tanks had been installed by the department as of March 2nd 2009?” Stoen asked Ross.

“Yes, I helped install all three of the ones we installed that year.”

Stoen asked him if he noticed anything different about the water tanks on March 2nd of 2009.

“Yes. The one closest to my house was missing.”

Ross said it was a green 5,000-gallon water tank, twelve to fourteen feet tall, sitting near the 6.25 milemark up Philo-Greenwood Road, in the hills near Elk. No one had been authorized to move the tank.

In Kalina's cross-examination of Ross, Ross admitted that the water tanks had yet to be plumbed or sealed with concrete barriers. He said they hadn't had time to seal the tanks or fill them with water. The last the water tank was seen at 6.25 mile mark on Philo Greenwood Road was February 28th of 2009.

Mr. Bob Matson was the next witness called. Mr. Matson is an auto mechanic who has owned and operated the garage in Elk for decades. He has been with the fire department for 38 years, taking care of the department’s vehicles and now serving as assistant fire chief. He had picked up the three water tanks from S&B Market in Manchester for the fire department. Each 5,000-gallon tank cost $2,300.

“And where had the department gotten the money to pay for it?” Stoen asked Matson.

“Initially the money came out of what we call our slush fund, and purchases like that we'll — we'll purchase equipment and then submit the bills to the Community Service Board for reimbursement.”

“And the Community Service board gets its money from taxes, is that right?”

“That’s correct,” confirmed Matson.

On March 2nd of 2011Mr. Ross, who had discovered that the fire department’s water tank at the 6.25 milemark was missing went to Bob Matson's garage in Elk and told him the news. Matson decided to conduct some detective work of his own. He talked to Al Sjolund at S&B Market. Sjolund told Matson he received an anonymous tip from a private road builder he heard talking in the store.

“I know where that tank is,” said the road builder.

Matson fallowed the tip to Probert Ranch on Sleepy Hallow Road in Annapolis, south of Gualala. He had been to the ranch before on service calls. There were three tanks, fully installed in a row in front of the house. During two separate visits to the Probert Ranch Mr. Matson spoke with the owner of the ranch, Nancy Probert, and a young woman who was caretaker for Probert's horses.

Investigating officer Greg Stefani was called to the stand and Stoen began his direct examination. Stefani is a patrol sergeant with the Mendocino County Sheriff's Office. He has been an officer of the law for 22 years. He interviewed Al Sjolund at S&B Market during his investigation of the water tank theft in March 2009. Sjolund gave him the serial number of the stolen tank, “#0810473352,” and on April 2nd 2009. Stefani checked it against the three tanks on Probert Ranch in Annapolis with assisting officer Charlie Carpenter.

“And did any of them match?” asked Stoen.

“Yes.”

They questioned the caretaker and Nancy Probert. They asked Probert where the stolen tank had come from.

“And did she say as to from whom she had gotten it?” Stoen asked Stefani.

“She said she had bought the water tank from Bob Sherman,” said Stefani.

But Sherman did not tell Probert where the tank came from. She paid Sherman $2,000 for the tank with two checks; one for $1,500, one for $500. Probert said Sherman delivered the tank to her ranch by himself in a flatbed trailer. She agreed to buy a new tank from S&B Market for the fire department to replace the stolen one.

On September 10, of 2009 Stefani spoke with Robert Sherman who was in custody at the time on another matter. Deputy DA Stoen asked Stefani if he had any contact with Sherman prior to that date.

“I've had various contacts with him over the past 12 years.”

Sherman told Stefani that on August 26th of 2009 he sent two men that work for him, Craig Higgins and Robert Enos, to Yardbirds in Ukiah to buy the water tank to resell to Nancy Probert. Stefani told Sherman he was investigating his involvement in the stolen water tank case. Sherman said he had a receipt for the tank from Yardbirds in Ukiah, but a receipt did not materialize until a couple months later.

On October 13th 2009 Stefani was pumping gas into his car at the Union 76 station in Gualala when he received a phone call from Sherman. Sherman told him he had the Yardbirds receipt. Stefani got the receipt from Sherman. It was submitted to the court as people's exhibit 4.

But the receipt wasn't from Yardbirds in Ukiah. It was from Friedman's Home Improvement in Ukiah. The Friedman's logo is at the top of the receipt; the transaction date is February 28th, 2009. It is for a 6,250-gallon vertical tank. It was paid by cash, $2,295.00. The stock-keeping, invoice number is “32972174.” With receipt in hand Stefani called Friedman's in Ukiah and spoke with manager Jennifer Carson. She told Stefani they did not sell water tanks that large, not even close.

“What did she say as to whether Friedman's could have sold such a water tank to Robert Sherman?” asked Stoen.

“She said there was no possible way because they don't sell that size tank.”

“And what did she say with respect to what the stock-keeping unit number was as indicated on that recite?”

“The stock-keeping unit on this receipt is for a 20-once bottle of Aquafina-brand drinking water.”

The bottle of Aquafina cost $1.33 and according to the invoice number it was purchased in August of 09, not February 28th of 09 as the receipt says.

In an interview that took place in Sergeant Stefani's patrol car and recorded through the vehicle recording system, Sherman told Stefani he personally delivered the water tank to Nancy Probert. He had been working with a metal recycler at Probert Ranch. He said Nancy Probert had recently had a fire and told him she needed more water tanks.

It sure looked like Sherman was guilty, but some of the jurors apparently wanted to hear more, and a mistrial was declared.

In the Fort Bragg grocery I bought a tri-tip sandwich, ate it in the car and headed back to the Ten Mile Court. I sat in the lobby at a desk near the court clerk's office. In his jarring, confident, “Foghorn Fathom” voice I heard the Captain as he passed through security.

“I left my gun at the mafia across the street,” he said.

Fathom was wearing his third costume change of the day, a grey wool suit jacket, different plaid shirt, and navy sweatpants. Everyone entered the courtroom just before 1:30pm. Captain Fathom kept crossing the bar to talk to Croak. Croak was noticeably irritated.

“You need to wait in the audience!” demanded Croak. “Please have a seat!”

“Up we go!” said Fathom, returning to Claybrook's side. Fathom spoke loudly to Claybrook.

“No one’s going to Low Gap, the Sheriff isn't here. No one to transport them.”

There was a sad, worn quality to Fathom's face and posture, but his voice is that of a promising, youthful politician on hallucinogenic drugs, speaking to a large audience without a microphone. He continued speaking to Claybrook, “What most of these kids need is a strong father and a Christian Church, or a Judeo-Christian Church.”

Claybrook answered the Captain quietly. Fathom continued, “You can't assume anything… you can't assume anything anymore.”

A lurid, convoluted restraining order case involving drinking, ex's, and fighting was then heard. As the parties were sworn in Captain Fathom raised his hand in the gallery and took the oath too.

His was the last case of the day. Captain Fathom was being arraigned on two violations of probation. He sat next to his counsel Public Defender Thomas Croak, but faced away from him.

“He just said I had notice! I had no notice!”

There was a tense familiarity between the two men, similar to that of brothers or life-long friends who can't stand each other, perhaps something out of a Federico Fellini movie. Judge Brennan told The Captain he needed to come back on June 29th for his VOP hearing.

“This is unacceptable to me! I have to go to UC Hospital. I have colon rectal cancer.”

The court chose to ignore this statement. Fathom stormed out of the courtroom, leaving an antique book on the floor next to Claybrook. As I stood to leave Claybrook shook his head at me.

“He must be deaf, he talks so loud.”

Bailiff Kent Rogers came over and picked up the antique book and carried it to the double doors in the back of the courtroom. Before he exited he looked at me and said, “Ah… Life goes on,” and flashed a smile.

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