The Newspaper Did It

by Bruce McEwen, January 11, 2012

The AVA hit the tabletop like a flyswatter. Judge Moorman seemed to jump in her seat. To emphasize an un-filed motion, the youthfully demonstrative public defender Andrew Higgins smacked my newspaper on the defense table, apparently wishing he could smack me directly. The boy defender was upset, or at least pretending to be upset, about stories I'd written about a Boonville gun burglary. “This case is written about on the front page of this newspaper and I move to, uh… well, I haven’t had time to write my brief – I just got it this morning – but I’ll be filing a motion to, uh…”

I don’t know where he got his paper, but I’m sure he didn’t buy it. Higgins makes it an open boast that he would never otherwise mention the scurrilous sheet that regularly criticizes his department and its cross-dressing boss, the ineffable Linda Thompson, an Only In Mendo personality, for sure.

Mendocino County consists of exactly one media — us — who pays attention to these people, and Higgins had decided to make the nationally circulated weekly out of Boonville an issue in his defense of a young San Francisco man with a long history of juvenile offenses.

This isn’t the first instance of lawyers taking a proprietary stance on court cases, as if the community had no interest in criminal matters or, worse, no right to be kept informed of them. Higgins and the rest of inland Mendo's legal eagles are lucky they only have a single media attending to their bumbling presentations. If they had several media watching them they might go all to pieces.

Judge Moorman, recovered from Higgins' fly swatting denunciation of the Boonville newspaper commented with appropriate sarcasm, “The First Amendment has a lot feet; if you have a motion you can articulate, I’ll be happy to hear it…?”

Mr. Higgins spluttered about needing time, more time, and more time to get a proper brief written up. He glared sidelong at the DA and said he would include a motion to have the prosecution sanctioned, as if the DA had piped info on the case to the AVA, that together the DA and the AVA were conspiring against Higgins and his client, Mr. Francis, that we're in cahoots with law-enforcement to make them and their clients look bad, and right about here it's helpful to briefly describe how the justice system here and everywhere in the country really works.

Ready? Begin: Almost all of the people public defenders defend are guilty. On his side, the DA places these defendants, also known as fish, in a barrel and shoots them. DA's seldom prosecute people who can shoot back because those people are seldom arrested. (cf. the recent looting of Wall Street by never-to-be-indicted criminals affiliated with the Obama administration.) When persons of means are arrested, which seldom happens because persons of means tend to commit complicated crimes most prosecutors are too dumb and too lazy to pursue, they hire private attorneys and either get off or walk on into country club prisons with reduced sentences. Bernie Madoff died for their sins, but so far he's the only casualty.

Which isn't to say our public defenders are generally incompetent, but some of them are, and their boss is for a fact. As is the County Superintendent of Schools and any number of persons holding down public, private and elected positions in Mendocino County.

Is any of this news to anybody?

I simply report what occurs in the courtroom. If the public defenders and their clients “look bad” in print it's probably because they are bad.

Back to young Mr. Higgins, junior public defender. It doesn’t seem to have occurred to Higgins that the public has a Constitutional, not to say inalienable, right to look into case files where all filings, including Higgins', can be read by any old body who cares to. I've read the file. I don't need to ask the DA about it. This particular crime was committed in Anderson Valley. The people of Anderson Valley have every right to know everything I can find out about it. Higgins can blame me and my newspaper for the difficulties of his defense of a criminally disposed young man, but he really ought to focus on the known facts, not newspaper coverage.

The theatricality of Higgins' smackdown of our fine publication was the grand finale to a long, well-rehearsed bit of drama, which began shortly after lunch on Thursday last week. The stagecraft was well-oiled: Attorney Higgins – “Wiggy,” to his colleagues — took a dramatic turn on deck last Thursday afternoon, pacing the marble foyer of the County Courthouse’s Main Floor, as he awaited his client’s appearance. The suspense seemed to be getting to Wiggy who never knows if his client will appear. That client, Xavier Francis, has either been flagrantly tardy for court appearances or he hasn't bothered to show up at all. Mr. Francis appeared as his case was called, and he and Higgins strode confidently into court like they'd already won an acquittal.

Higgins began by telling the court that he’d found yet more undisclosed criminal behavior on the part of a DA's witness, a certain Mr. Wallace, a native of the Anderson Valley long past the crimes of his youth. But Higgins has kept digging up the dirt on Wallace. This time it was welfare fraud, a dusty old rag of a charge the defense had unearthed in Oregon.

DA Eyster promptly responded that he was no longer planning to call Mr. Wallace. Never mind, Higgins countered, he'd subpoena Mr. Wallace. But Mr. Kidd, the Public Defender’s investigator and process server, had been unable to locate Wallace. (Pssst! Try his house in Navarro. If he's not there, he's at work. The guy's about as hard to find as I am.) But Wiggy said if they couldn't find Mr. Wallace the trial would have to be postponed.

The case?

There's a single fingerprint that appears to belong to Mr. Francis and there's the handy convenience of Mr. Wallace's unfortunate legal history. Mr. Wallace, related to the burgled family, was keeping an eye on the house while the burgled family was on vacation. Higgins will try to convince a jury that Mr. Wallace stole the guns, that Francis's fingerprint just happened to be there because Mr. Francis is a friend of the burgled family's teenage son. Higgins also will have to decode, in a way favorable to Mr. Francis, a lot of confusing teen snitch talk accumulated by investigators. He ought to be able to get Francis off if he gets a couple of Mendolibs on his jury.

Thursdays are generally reserved for Motions In Limine, a Latin term for pre-trial motions.

The Xavier Francis file is bloated with defense motions to dismiss, stall, and otherwise postpone the thing. The most recent attempt to derail the process being the business about the AVA acting as steno to the DA's office.

Despite Mr. Higgins’ accusations of collusion, DA Eyster was unaware of the earlier motion to dismiss, as well as the one censuring Eyster for alleged misconduct. Judge Moorman gave Eyster the copies from the court’s file, the same ones I’d smudged with my inky fingers the week before.

“When were these filed?” Eyster asked, glancing through the many pages and attachments.

“One on December 21st, then on the 22nd.”

This was now January 5th. When Eyster saw how lengthy the motions were, he agreed to the continuance so he could have time to answer.

The hearings on the motions — including the new one involving the AVA, if it’s filed — will be heard this week, on January 15th, and the trial date has been pushed back to January 30th, a full two months from the original date of November 30th, 2011. Wiggy is doing a good job so far muddying things up, putting the trial off.

Thus it happens that all the anticipation and preparations often come to naught with jury trials. But if the reader is disappointed, consider my own personal disappointment: January 9th is my 60th birthday, and a good old fashioned jury trial on a local crime was just what I’ve hoped and prayed for in the three years since I started covering the crime beat for the AVA on my birthday in 2009!

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