The Black Robe Shuffle
by Bruce McEwen, November 10, 2011
The judges played musical chairs at the Courthouse last week. Her Honor Ann C. Moorman became the new judge of Department A, the County’s main criminal court, which made the lawyers from the Public Defender’s office particularly happy. These poor souls, the lowliest of the legal beagle breed, have suffered a long, long time as the dreaded Judge Richard ‘Rubber Stamp Ricky’ Henderson granted every motion the prosecution made, and denied even the most deserving motions from the defense. Henderson operates on the safe assumption that defendants per se are guilty.
Where did Judge Henderson go?
“Who gives a [bleep],” one lawyer declared. “Just so long as he’s out of here! Did you see how Judge Moorman sentenced my guy? She gave him a year in prison, same as Henderson would have done. But it’s the way she did it. My guy had to ask for it! Henderson would have just sentenced him.” On the first of October the statewide Community Corrections Plan went into effect, and the first of many homegrown perps, instead of being packed off to over-crowded state prisons, will do their time in county jails. The Plan also includes a new set of sentencing guidelines.
Judge Moorman mentioned the new guidelines at a Board of Supervisors meeting at the end of September, but provided no detailed explanation as to how it would work. Now, as the perps themselves arrive in court, we see how the Community Corrections Plan works out in real life.
Case in point: Mr. Britton Azbill, who seems to have worn out his welcome in Covelo, has found himself eligible for the new “local” prison time, where a three-year sentence in the state pen becomes 18 months of custody at the much less stressful Low Gap Hilton in Ukiah followed by close supervision while on parole.
It probably should be pointed out that most of the beneficiaries of the Plan will be the kind of people who ought to be locked up for their own safety. The new strategy seems to be implicit recognition of the basic fact that thousands of people, probably a thousand right here in Mendocino County, haven't transitioned well into modern society.
Judge Moorman said she’d read all the Azbill letters from the concerned parties, the sentencing report and recommendations from probation, and was ready to hear from the lawyers.
Mr. Azbill’s lawyer, Carly Dolan of the Public Defender’s office, said her client “originally wasn’t eligible for the new H-5 sentencing guidelines, but apparently there’s been a change of heart, because this wasn’t a serious case.” Her client was therefore willing to agree to a stipulated split sentence.
“At first,” she said, “we didn’t realize what the Realignment meant. And my client thought he would just ask for the full term [in state prison] and be done with it. But now that he knows he’s half-time eligible, he’s quite excited about it.” No doubt. Who wouldn't take nine months in the County Jail over three years in the state pen? But to a lot of our local miscreants, who've been there, the threat of state prison holds no fear. Azbill, then, gets 18 months on Low Gap Road with mandatory supervised probation.
Ms. Dolan said, “Also, he’d like to apologize to Mr. Johnson.” Mr. Johnson is the guy Azbill hit in the head when Johnson tried to pull Azbill off a kid had stabbed then commenced beating on. Azbill had hit the middle-aged Johnson so hard it did permanent damage to Johnson’s hearing but, apparently, if Johnson hadn't intervened the stabbed kid might have died.
“I’d like to apologize to Mr. Johnson,” Azbill said.
“Do you see him in court?” Judge Moorman asked.
“Yes.” “Well, go ahead, then.” “I apologize for what I did that day.” Judge Moorman was still confused. “I have one more question about this previous report.” “He’s on parole, actually,” Mr. Timothy King of the Probation office explained. “With a prison prior, but it got referenced back to us for a split sentence.” Deputy DA Rayburn Killion wasn’t exactly amenable to the deal.
“I think that out of the chute the state presented us with this realignment and left it at that. I disagree that this wasn’t a serious crime, and we expected a full prison term would happen. I disagree entirely with the split sentence. Mr. Johnson is suffering life-long repercussions from this fairly vicious attack, and in Covelo these things tend to go into a kind of Hatfields-and-McCoys feud.” Mr. Johnson himself stood to say: “Three years is nothing compared to what I got. When he hit me it broke my hearing aid inside my ear and I had internal bleeding. I have a constant ringing in my ear and can hardly hear anything else. They tell me this isn’t likely to ever go away. I had all my teeth knocked loose, and the same guy he was beating on was the guy he stabbed. I don’t want him back in Covelo, and I see none of his family are here.” Judge Moorman apparently needed clarification, “You were wearing a hearing aid when he hit you?” “Yes, it broke in my ear. They told me the damage would be permanent.” “Thank you, Mr. Johnson.” The judge turned to Ms. Dolan, public defender, and said, “Once he’s released, what’s his plan as to where he’s going to live?” “He has a cousin in Ukiah,” Dolan said. “They [probation] realized Covelo was a risk factor and he made arrangements to stay with his cousin in Ukiah for the mandatory supervision.” Moorman said, “I can’t order where you can or cannot go, but I really don’t want you to go back to Covelo, Mr. Azbill.” The unfortunate Johnson, a volunteer fire fighter who just happened to see Azbill on the attack near the fire station that day in Covelo, is an older man totally unequipped to restrain someone like Azbill, who is not only much younger at age 29 but weight-bunch strong.
In the end Judge Moorman added an extra year — a four-year split sentence, but the result was the same: All but the 18 months was suspended, and Azbill would only serve half of that. He had about five months credit for the time already served at the County Jail, and when he gets out, he goes on “mandatory supervised release” for 22 months.
How well are people supervised by parole and probation officers in a time of layoffs and early retirements? How well is your cat supervised?
“After your release, I want you to develop a plan to deal with your drinking and drug abuse,” Moorman told Azbill.
While Azbill is working out his austerity plan, the would-be Samaritan, Mr. Johnson remains painfully deaf the rest of his life.
A different Mr. Johnson was called for sentencing. His lawyer, Ms. Patricia Littlefield of the Alternate Public Defender’s office explained that her client had done a little backsliding on his plan to overcome drinking and drug abuse.
“He was out using and drinking again, and didn’t turn himself in on his surrender date. But he’s come to the bottom now, and he’s asking for another chance, your honor.” Judge Moorman is a second chance person, although it would be a mistake to take her for a sap.
“It’s one of the saddest cases I’ve seen for quite some time,” Ms. Littlefield continued. “But he’s ready to turn it around, now. His failure to turn himself in is more proof of that.” Failure to show up is proof of a new leaf?
“Will you be asking for a split sentence?” the Judge asked.
“We would, but he’s an exception to the split sentence provision so he’ll have to go to prison.” “This is a straight prison case, your honor, “Deputy DA Scott McMenomey declared.
“What can we do?” the Judge wondered aloud.
Ms. Littlefield threw up her arms.
Defendant Johnson had an idea: “I have a great opportunity to go to work for my uncle. I’m certified in heavy equipment and as a tree topper. I’ve been to prison and if I go back I’m in jeopardy, as an ex-gang member. I don’t want to go to prison. I want to show these guys I can succeed.” Prosecutor McMenomey was unmoved.
“This is a public safety issue, Your Honor. He schmoozed the probation office and got this grant of probation, but actions speak louder than words. He says he wants to show us and it was gracious of them to grant the probation. And what does he do? He thumbs his nose at Probation. And Ms. Littlefield is right: it is sad. I’ve no doubt he needs help, but there are programs at the prison that he can avail himself of. But the fact is, Your Honor, this is a complete lifestyle choice by Mr. Johnson. He’s a gang-banger — I don’t believe for a minute he quit the Norteños — a car thief, a drug user, and I think he’s a good candidate for prison. When he stole the car he went through a fence into a parking lot and people were nearly killed or injured.” “He didn’t ‘schmooze’ Probation,” Ms. Littlefield objected on Johnson’s behalf.
Judge Moorman asked Mr. King of the Probation Department if he'd been schmoozed.
King smiled wryly and said, “He said the same thing before that he said today; the same thing he just said, and I believed him … then.” Judge Moorman said she wanted to review the reports and come back to it on another day. “If we put this over for further review, would the 17th be alright with you, Mr. Johnson?” A defense lawyer whispered, “See? That’s the difference. Judge Henderson would have done whatever the DA wanted!” In response to this stage-whispered comment, McMenomey dropped Johnson’s thick file to the floor with where it landed with a loud slap.
Judge Henderson had a full calendar of sentencings across the hall, but every time he called a case the defense lawyers would move to have him recused and the case would be transferred to Moorman’s court.
Ira Reyes, having bounced himself out of Henderson's court, was on probation when he picked up some new charges; he was ushered into the court for arraignment during the sentencing proceedings. The new charges included first degree armed robbery, false imprisonment, felon with a gun, and a catch-all of related violations. Reyes flopped into a seat and laid his head back, closing his eyes.
“I want you to sit up, Mr. Reyes,” Judge Moorman said.
“He’s not feeling very well,” one of the deputies escorting Reyes explained.
“I can appreciate that you’re not feeling well,” Moor-man said, “and I’ll try to keep this brief.” Mr. Reyes assumed a second exhausted pose, leaning forward to rest his forehead on the rail.
Ms. Angelina Potter of the Public Defender’s office had been appointed to defend Reyes. She entered perfunctory not guilty pleas, denied all the special allegations and a prelim was set for
Ms. Potter watched her new client leave with the jail escort deputies as Judge Moorman called another of Potter’s clients, Orlando Barron. Mr. Barron had also fallen off Mendocino County's perennially crowded wagon, got himself a snoot full of meth and booze and went home and attacked his wife and kids.
“He has expressed remorse for his attack on his family and loved ones,” Ms. Potter assured Judge Moorman as if family and loved ones were not one in the same. “He was in Sonoma County and failed to follow through with his program, having made a series of bad choices. We agree he needs treatment, and it probably should be in a residential program. He’s got three DUIs, I believe, and has never gotten his license back, and this is a problem. He works as a DJ playing in clubs and bars and this necessitates finding transportation with others. Different programs offer different things, and this six-month pro-gram that Probation is recommending is a very long time — very akin to jail. And he’s never been professionally assessed to see what kind of program would be best for him. So we are asking for a 90 day program and an exception to the prohibition of bars on his probation, since that’s where he gets most of his work.” Mr. McMenomey responded, “I don’t think it’s fair to imply that he’s never had a proper assessment. Based on a drug and alcohol record that goes back, let’s see here....” the Deputy DA lifted a page from Barron's file and scanned it briefly — “15 years, at least. So to come to court and say he’s never had a chance is a little specious. In fact, the best chance he’s got is six months in treatment.” Probation Officer King added, “I’ll have to agree.” Judge Moorman imposed 120 days in jail, three years probation, and gave Barron another six-month program.
Across the hall, Judge Henderson dealt more harshly with a wife beater. Daniel Robleto pled to a deal Henderson approved that would give the man four years in state prison for punching his wife in the face. The matter will go to Probation for a report and recommendations, then come back — probably to Judge Moorman — for sentencing. Robleto will probably also be sentenced to the County Jail and the mythical intensive probation.
By the first of the year Judge Henderson will be assigned to the duties of the family court. Judge Cyndee Mayfield, who currently handles family matters, will go to the main civil court, Department E.
The defense bar doesn’t like Judge Mayfield either.
“She was alright until she started dating cops,” one public defender attorney said. “After that, she never granted another defense motion.” (There are no secrets in the Mendocino County Courthouse. Ms. Mayfield was a conservative before the Republican governor, Pete Wilson, appointed her to the bench. At the time of her appointment she was working for Jared Carter's law firm specializing in property rights, especially the property rights of Charles Hurwitz and Louisiana-Pacific, infamous as among the destroyers of the North Coast's timber industry. Carter is an influential Republican.
Judge John Behnke, more or less a liberal in the prudent Mendo sense of the term, will take over Henderson’s Department B, the main court for criminal jury trials.
Meanwhile, Judge Moorman had one more sentencing for her first week in Department A. Victoria Biddle was opting to go to prison rather than probation. It may strike the reader as odd, but under Realignment, prison seems like something special, something you have to ask for specifically, like applying to a prestigious school. Ms. Biddle's state pen bona fides were certainly in order. The girl has been in a lot of trouble.
Ms. Biddle’s bid for the state pen came with a pile of letters from well-wishers, some of whom accompanied her in court. Her lawyer, Catherine Livingstone of the Public Defender’s office, said part of the decision was the cost of the probation — the one-year residential drug and alcohol program was Ms. Biddle's other option. It seems Ms. Biddle has had a rough year, her house having burnt to the ground, her husband left her, and she nearly killed somebody in a drug and drink-fueled escapade. Earlier this year her house in Fort Bragg had burned down. Mr. Biddle, 64, speculated that as he tossed and turned in his sleep a blanket had fallen over a heater. I thought of Nelson Algren's dicta: “Never eat at a restaurant called Moms; never play cards with a man named Doc; never sleep with a woman whose troubles are bigger than yours.” She was hoping to get the two-year term, she said, so she could take advantage of the drug and alcohol program in the prison; she was going on about how wonderful everyone at AA and NA had been, how she’d found a sponsor for grandmothers, and…” Judge Moorman interrupted these pieties to point out that the People had other ideas.
“Ms. Biddle, I want you to listen to what Ms. Cox is saying.” Deputy DA Shannon Cox was saying the two-year term was out of the question. “The People are asking for the aggravated term of three years, considering her history — she has seven felonies besides the recent DUI with injuries — all of which shows a lack of accountability. She’s a danger to the community and I don’t see a lot of mitigation here. In this case the aggravated term is absolutely justified.”
“What the DA says is true,” Biddle blurted tearfully. “I don’t have any survival skills — I don’t even know how to say this – I could have killed somebody, but all I’m asking for is a chance. It’s time I took responsibility and I’m just glad I have this opportunity. I’ll take what-ever you give me.”
Judge Moorman handed Ms. Biddle, 51, the aggravated sentence. As the bailiff was clicking the handcuffs on Ms. Biddle's emaciated wrists, her honor added: “Ms. Biddle, you came perilously close to killing somebody. You need some help and I know this is a tough way to get it, but I think it’s appropriate.” Judge Henderson wouldn't have merely sentenced Ms. Biddle he'd have given her a mental kick in the arse, too.
With Judge Moorman, Ms. Biddle had to ask for the max and the Judge said sorry but I really have to max you out.
To the public defenders there's a difference.
Welcome to the revamped Mendocino County Court-house.