The Judge Takes A Powder
by Bruce Anderson and Mark Scaramella, December 7, 2011
It was Wednesday for us, doomsday for Christopher “Chris” Diaz, the 22-year-old Mendocino man wanted in Texas for possession of an half-ounce of marijuana and “bail jumping.”
Diaz is facing 5-99 years in a Texas prison.
The proceedings that fine sunshiny afternoon last week got off to a suspicious start when Judge Ann Moorman apparently decided she'd rather not preside over the Diaz matter. The judge claimed that her calendar was too full to hear the ensuing fast shuffle of the young man to the dubious authority of Brown County, Texas.
Judge Moorman is widely perceived in Mendocino County as a liberal by the overwhelming majority of voters who elected her to the superior court last year. But it was obvious Wednesday that she didn't want to do the dirty work of sending Diaz back to Texas with a room full of his supporters looking on. If Judge Moorman's calendar was full to bursting, it wasn't obvious from the three or four sad sack defendants waiting for her in the jury box.
The thirty or so persons present to see if young Diaz would be extradited to Texas were suddenly instructed that the case had been moved across the hall to Judge Henderson's courtroom. As the crowd dutifully shuffled across the hall to Henderson, a man commented, “Not Henderson! He'll drive Chris back to Texas himself!” From Henderson's court the Diaz contingent was again shuffled, this time “upstairs to courtroom H.”
Diaz had been out of custody and awaiting trial in Brownwood, Texas on a $35,000 bond when he left Texas without authorization for his home on the Mendocino Coast. He was arrested on a fugitive warrant in the parking lot of Mendosa's Market by local deputies last Halloween.
Diaz is 22 and the father of two small children. His family has steadily insisted that the Texas allegations are untrue, and that the sentences for possession of small amounts of marijuana are disproportionate. The family also maintains that the young man, who suffers from asthma attacks so severe he has often been hospitalized, might not survive the extended prison sentence Texas is seeking.
As Diaz's extradition hearing neared last Wednesday, official Mendocino County made it clear that the hearing was “routine,” simply a matter of establishing that Diaz was Diaz before he was extradited to Texas. By court time, Diaz's identity was not in dispute. It was clear, however, that Mendocino County's politically sensitive judges wanted no part of Texas vs. Diaz.
(Mendocino County maintains eight superior court judges plus one court commissioner for a population of roughly 90,000 people. Visiting judges, however, regularly appear to hear matters Mendocino County judges prefer not to hear. Superior court judges are paid about $180,000 per year and enjoy an array of fringe benefits not enjoyed by most Americans.)
Upstairs in Courtroom H, a substitute judge, a solemn old fellow retired out of Sonoma County named Arnold Rosenfield, after some pointless maneuvering by the public defender representing Diaz, duly ordered the defendant back to the suspiciously eager embrace of Brown County Sheriff Bobby Grubbs.
It took Rosenfield a while to arrive, but when he did, and without apology, it was clear he did not intend any proceeding that might resemble a hearing in any known sense of the term. And it is unclear why the Diaz camp did not demand one. After all, extradition law clearly states: “…If the accused or his counsel desires to test the legality of the arrest, the magistrate shall remand the accused to custody, and fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus.”
In other words, if Diaz had had an attorney present interested in defending him rather than a public defender assisting in his extradition — ace Ukiah defense attorney Keith Faulder was rumored to be willing to appear but was unavailable — Diaz might have been able to “test the legality of his arrest.”
When Judge Rosenfield had finally appeared he quickly declared that the outcome of the matter he was about to hear was “probably a foregone conclusion.” Questions about whether Mr. Diaz committed the crime and all other legal questions unrelated to simple identification “are not up to this court,” the judge said.
Assistant District Attorney Paul Sequeira pointed out that Diaz was not a political refugee as Diaz himself stood to say that he was indeed a political refugee, but the two beefy bailiffs on either side of the pale and slightly built youth pushed him back into his seat as Judge Rosenfield said, “Sorry. These kinds of questions need to be raised in Texas.’
Public defender Andrew Wiggins is not much older than the young man he was supposed to be defending. He informed Judge Rosenfield that Mr. Diaz wanted to file a “Marsden motion” for a new attorney. Assistant District Attorney Sequeira responded, “He's [Diaz] obviously going to go kicking and screaming to Texas. This is nothing but a delaying tactic, Your Honor.’
Judge Rosenfield disagreed, stating that he believed that he was at least obligated to hear the argument from Wiggins as to who Diaz's attorney should be, not that there was really a choice.
Public defender Wiggins explained to the court that it is “the policy” of the Public Defender's Office to have the Public Defender herself, Linda Thompson, or “a senior attorney,” present whenever Marsden motions are submitted.
Judge Rosenfield asked, “Why is she necessary?”
Wiggins repeated that it was “Public Defender's Office policy.”
Following hurried cellphone conversations, Wiggins determined that Ms. Thompson was “not available.” Instead, one of the Public Defender's two “senior attorneys” would be asked to fill in for her — Farris Purviance III or Carly Dolan.
Only Ms. Dolan, an attractive young woman who could pass for a senior in high school, was available, and the hearing descended into even more of a predetermined farce than it had been at its outset.
The room was cleared for this hurry-up and entirely bogus proceeding as if a substitute attorney from the same office as Higgins would be any more likely than the feckless Higgins to vigorously defend Diaz.
As spectators were shooed from the courtroom to ensure the sanctity of a process no one inside or outside the cleared room took seriously, we learned that Marsden motions can involve “attorney-client privilege information” and must be conducted in closed session. The defendant had requested a different attorney, while the different attorneys produced were versions of the original and, given the givens of the pro forma proceeding, not able or even willing to raise the true issues involved in the case.
The Marsden farce was concluded in about five minutes. Predictably, Judge Rosenfield denied the motion to replace Wiggins and Wiggins remained as Mr. Diaz's attorney. Wiggins could go along with a pre-determined outcome as effectively as Ms. Dolan.
DA Sequeira then presented “identification exhibits” to chief DA investigator Tim Kiely. These were pictures of the defendant and fingerprint cards from both Texas and Mendocino County showing that Mr. Diaz was the same Mr. Diaz that Texas wanted to send to prison for up to 99 years for a half ounce of marijuana product. Diaz was not denying who he was but the procedure rumbled on.
Kiely examined the indictment from Brown County Texas that said that “Mr. Diaz was charged with 1. possession of a controlled substance with intent to deliver, and failure to appear and 2. Bail jumping and failure to appear.”
Sequeira walked Kiely through the paperwork.
Higgins asked Kiely if Kiely was a “fingerprint expert.” Keily responded that he was not a “certified” expert but he had examined fingerprints most of his career and that he “had consulted with a certified expert.” Higgins, having established nothing even remotely helpful to his “client,” bumbled on.
Kiely replied that he compared the right thumb print from the Texas fingerprint card with the right thumbprint of the person in custody and there were “enough” matches.
Higgins asked, “How many matches is enough?”
Kiely replied there were at least 15 matches on the thumbprint.
Wiggins informed Judge Rosenfield that several people in the audience wanted to address the court. Sequeira objected, saying that the court was not in session to consider anything but identification. Judge Rosenfield, a team player, agreed, saying he didn't want to hear from any audience members on subjects unrelated to the ID question but he did accept a packet of documents assembled by the Diaz family. Wiggins said the documents were “exhibits.” Assistant District Attorney Sequeira said he had no objection to letters and articles being submitted, and Judge Rosenfield agreed to look at them.
After a few minutes of paging through the exhibits, the judge said that nothing in the package had anything to do with the question at hand.
Beth Bosk stood to urge the judge, “Please hear from his physician.” Local physician William Courtney was prepared to testify that marijuana was the only medicine that kept the asthmatic Diaz's lungs functioning. The judge ignored Bosk and concluded the hearing during which nothing relevant was heard. Rising to disappear into chambers, Rosenfield said that “Mr. Diaz” was indeed the person Texas wanted to extradite and, “You will be returned to Texas as soon as possible.”
A young man in the audience shouted, “Pontius Pilate!”
That denunciation caused Rosenfield to pause at the door to his office. “I have to do it,” he said as he disappeared.
Yes, if his retired Sonoma County honor wanted to continue to pad his lush retirement with occasional assignments in nearby Mendocino County. And, yes, if he didn't want to earn himself a reputation as some kind of maverick jurist, the kind of non-existent American judge who might refuse to return a young man to a state where the young man will spend a minimum of five years in prison for an offense that wouldn't even get him arrested in most states.
Out in the hall, people speculated that Judge Moorman probably would have allowed members of the audience to make their statements before she packed Diaz off to Texas.
• There was plenty to dispute in this case, beginning with the legality of the initial stop. The Diaz camp says they can prove that Diaz's vehicle registration was current. Also, the refusal of Texas to even consider a medical marijuana defense means Diaz has no defense in that state. And of course there's the huge disproportion of the sentencing guidelines that will see him get somewhere between 5-99 years for the half ounce of hash, which Texas is claiming Diaz possessed for sale (aka “delivery”). The hostility of Texas authorities for Diaz has been steadily reflected in the Texas media, meaning his chances for an unbiased jury have been compromised.
• Diaz is also being extradited for “bail jumping.” Informed by his Texas public defender that he faced a minimum of five years, Diaz, who'd been out of jail on a bond of $35,000, departed Texas for Mendocino. His family says he had hoped to negotiate some sort of long distance arrangement for making good on the bond. The family also says that Diaz was not in hiding and had been in contact with Texas authorities.
• Christopher Diaz clearly does not enjoy robust health. He has a long medical history of breathing difficulties which, he says, only marijuana can alleviate. Examining physicians have agreed.
• Extradition means a long van ride back to Texas, a journey that may take Diaz all over the West before he finally reaches the Lone Star State. A private prisoner transport company drives hither and yon picking up extraditees for eventual placement in their home states. Experienced convicts call these trips “bus therapy.”
• The Diaz family denies that they are affiliated with the sovereign movement, an obscure ideological argument that the people claiming to be sovereign citizens aren't bound by local laws.
• The Diaz's have appealed to Mendocino County Sheriff Allman for “medical sanctuary.” Allman does not have that authority.
• As of Tuesday afternoon, Diaz was still at the Mendocino County Jail.