Two Little Trials
by Bruce McEwen, February 1, 2012
A couple of minor cases went to trial last week. How minor were they? Too minor to rate coverage, actually. Sure, they were important to the people involved, but then a tricycle mishap on the sidewalk and a scraped knee is important to the kid and his parents, and would be a pretty darned exciting news story for the grandparents. But in the larger perspective of seething Mendocino County, toxicant capital of these United States, the two cases were minor to the point of piddling. Illustrative, though, but I'll leave it up to you to conclude illustrative of what.
Why then, did they draw bigger crowds of spectators than the recent Fort Bragg hatchet fights trial, or the murder by the Laytonville guy shot his stepson for coveting his mother?
Nothing so dramatic as those spectacular matters, but the two little fish cases was this: Their partisans were muttering about how only a police state would even make them crimes.
I don’t have much patience for police state talk. Compared to a lot of places our cops are positively benign. But there are people here who don’t get out into the real world much, homebodies like defense attorneys Dan Haehl and Bert Schlosser, who talk about Mendocino County like it's 1942 Austria. Schlosser, especially, should know better. After all, his wife recently fell afoul of the cops in Utah when she was stopped with 167 pounds of processed bud in her SUV headed for marijuana-starved Minnesota. But she skated right on back to Ukiah from deep in Mormon country where it is presumed she might have spent the rest of her days with nothing to read but the collected works of Joe Smith
It was Schlosser and Haehl, taking on Mendo's goosesteppers that drew the crowds of spectators. In fact, it was only a few days before these trials began that Mr. Haehl had denounced the AVA as a cop tool and its editor as a creature of the police state.
“I can’t believe — well, actually I can… but it just amazes me how reactionary Mark Scaramella and Bruce Anderson have become — no, actually, it just makes me sick; but you probably haven’t got the guts to print that, have you?”
Dan Haehl is a big, jolly guy. His family goes all the way back to the days of the Indian killers in Mendocino County. We've got a fifty-foot street here in Boonville called Haehl. And out in Yorkville there's Haehl Grade. The guy has pleasant demeanor but a bitter disposition. Limping along the sidewalk with me on his gouty feet, he made a sour face and tried to laugh but his anger choked off the attempted mirth. He spluttered something about AVA attacks on his boss, Public Defender Linda Thompson and “sexism,” giving vent to the perception by the women in both the Public Defender’s office and the Alternate PD’s office, that the AVA is a sexist, homophobic organ of the local branch of the police state with an especially virulent animosity toward lesbians. The thing is, though, our prob with Thompson is her obvious incompetence, not her sexual preferences. (Thompson succeeded Wes Hamilton who retired. Hamilton had been vetted by a panel of judges, one of whom pointed out that Thompson had no trial experience and shouldn't be put in charge of the office. But the Supes moved Thompson into the PD job when Hamilton retired, and we suspect, since the board was dominated by phony liberals, Thompson got the job because she was a lesbian. She has since parlayed several boys into life without, as the Tai Abreu case best illustrates. It took a special kind of incompetence to convince that kid to take his non-case to a jury.) Anyway, as the editor often says at our Sunday seminars, “Boys, if the Courthouse feebs start in on your dear old boss, remind them that I'm always up for an argument either in person or in the pages of this fine publication. But if there's anybody less interested in the good opinion of those clowns than I am, you'd have to dig him up from the Boonville Cemetery.”
So here's Bert Schlosser defending an out-of-control junkie who has managed to get himself a jury trial paid for by the long-suffering taxpayers of this county. As a lawyer friend explains: “This is probably a good time to explain how, contrary to the myths the public and the media persistently cling to regarding how the system is rigged against poor people and how the indigent suffer in every conceivable way when it comes to criminal justice, that things are stacked up nicely in favor of people with Public Defenders. No one else (other than an exceedingly wealthy bastard) could possibly afford to take a case like this Soutos DUI to trial. The fact is that for a sizeable percentage of defendants, a trial is free. Might as well roll the dice and see if a lab result got lost or a cop doesn't show up to testify or an artichoke doesn't crop up on the jury to hang the case. You and I can't spend ten grand having Justin Petersen or Keith Faulder run our loser case out in front of a jury over the course of three days. But a Public Defender client can. In the real world Soutos' non-case would run up $20 grand, which of course would be on top of all the fines and restitution and reimbursements that indigent clients can usually avoid having to pay. Result will be the same either way, so they figure they might as well take the scenic route to a guilty verdict and hope something wild happens along the way. Only rich people can run the same scams.
Back in the day, a junkie was a junkie, and the song was “Goddamn The Pusherman!” Even pot smokers — especially pot smokers — despised junkies. Heroin was as far as you could fall. It was the bottom of the barrel. But that’s all changed. Now, you get junk in a new package. It’s called Oxycontin, and it’s the most commonly prescribed “analgesic opiate” on the market — putting old-fashioned heroin so far in the shade it isn’t even funny. Remember when the worst criminal in the world were the sonsabitches who sold drugs in schoolyards? Now, Big Pharma goes directly to the school nurse and together they put rambunctious little boys on prescription speed. There are doctors around who will write the drug-dependent community prescriptions for this stuff.
Somehow, in Mendocino County, drug dependence is confused with “progressive” politics; even the heroin addict nodding out at the wheel on the rushing river of chrome can be regarded as a victim.
Enter Schlosser’s client, John Soutos. Soutos was spotted by another motorist driving “erratically” on Highway 101 south of Ukiah. A CHP officer soon saw Soutos run off the pavement then swerve back up on the highway as the rumble strip re-focused his attentions. Mr. Soutos was out there hurtling down the freeway in a ton of steel, with his chin on his chest, the glow of pharmaceutical heroin shooting through his veins and soothing his immortal soul, reassuring him that he had not a care in the world. Don’t worry. Be happy. If the guy head-ons a family van full of kids, well, that's life.
Soutos went to trial a few months ago and got a hung jury, and hold your applause for the prosecutor in that one. The DA’s office re-filed the charges and Soutos came back to face the clean and sober music again last week.
Bert Schlosser roared out for his client in thumping good form. By god Mr. Soutos was a victim of police state tactics! You'd have thought Schlosser was defending Nelson Mandela, which is as it should be because even the stone guilty are entitled to the best free defense they can get.
“The state doesn’t really have a qualified witness,” Schlosser began, “so they’re going to bring in an old hippy-boy-turned-narc with a bunch of voo-doo pseudo-science and an eye-witness named Scott Diebold. Now, me and Scott Diebold, we go way back. He’s got a record longer than my arm and…”
“Objection,” said the Deputy DA, the youngest gun in the DA’s arsenal, Mr. Joshua Rosenfeld.
The judge was already losing patience with Schlosser's opening remarks. The judge was the Honorable Leonard LaCasse, recently retired, but nonetheless back in town to fill in for one of our six active judges with two appointments pending. Don't ask why six full-time judges need to call the bullpen for relief for work that used to get done by two judges.
LaCasse shut Schlosser down: “Objection sustained.”
Schlosser continued unrestrained: “First of all, my client’s drugs were prescribed! Now, Mr. Rosenblatt is going to put an officer on the stand, the cop who pulled my guy over, and these two, the expert and the arresting officer, are both locker-buddies. They’re both biased, both out to get my guy, and if they can get him, ladies and gentlemen, they can get you the same way…”
Schlosser went to the defense table and picked up a bound sheaf of bond, flourishing it dramatically.
“This,” he said. “is the transcript from the first trial and” —
“Objection,” Mr. Rosenfeld said.
Judge LaCasse was very unhappy.
“This is not a permissible opening statement, Mr. Schlosser,” he said. “Save your argument for closing. The bombastic stuff can come at the end.”
But Schlosser skipped merrily along, despite the steam whistling from the judge’s ears.
“And then Mr. Rosenfeld is going to bring on the Department of Justice’s so-called expert, Robert Simas, with his voo-doo junk science. Now, I’m not so arrogant as to stand up here and tell you how you should vote, but at the end of this trial at the very least you should have a better understanding of the junk voo-doo science your government uses against you.”
At this point, the junk man himself, the freshly denigrated Robert Simas, was called.
Mr. Rosenfeld established that the Mr. Simas is a narcotics officer for the CHP. He presumably knows his stoners, having been trained to recognize them. Rosenfeld asked the court to confirm Simas as a Drug Recognition Expert. Judge LaCasse was more than ready to get it over and done with, but Mr. Schlosser said, “Not so fast. I want to voir dire (establish witness bona fides) him, your honor.”
“Go ahead,” LaCasse said.
“So you went to the Academy,” Schlosser said. “What other training do you have?”
Simas: “About 80 hours in Drug Recognition classes.”
Schlosser: “Ah, 80 hours. What’s that, a two week class?”
Schlosser: “And how much of that time was spent on opiates?”
Simas: “I don’t know the number of hours.”
Schlosser: “So what were they teaching you?”
Simas: “What to look for when someone’s impaired. We would have part of the class drink some beers and then observe them.”
Schlosser: “Sounds like fun. But did you ever get anybody loaded on a drug and then test them?”
Simas was aghast. He has long curly hair and scraggly facial hair — I would scarcely call it a beard — like a washed-out hippy, but he’s a narc, a cop. The grunge look is mandatory in dope circles. “That would be illegal,” he said.
Schlosser: “Well, then, how many pharmacists and doctors came to your class and discussed the symptoms and indications of drug impairment?”
Simas: “None. Umm, wait. One officer came.”
Schlosser: “So we’re down to one, I can work with that. Was this officer a doctor or a pharmacist?”
Simas: “No. He was an expert.”
Schlosser, a gotcha grin on his florid face: “Like you?”
Schlosser: “How many hours?”
Simas: “I, uh, I don’t recall.”
Schlosser: “Well, how many drugs, then?”
Simas: “They talked about many different drugs.”
Schlosser: “They? I thought you said only one came!”
Simas: “I meant the class in general.”
Schlosser: “Can you tell me how many hours of training you have in drug impairment?”
Simas: “I can’t give you a figure, I don’t know how many hours.”
Schlosser: “Well, let’s go to how many hours were dedicated to opiates.”
Simas: “I couldn’t tell you that, either.”
Schlosser: “Well, there’s a blight of meth out there…”
Simas: “There is.”
Schlosser: “…and opiates are different…”
Simas: “Yes, sir, they are.”
Schlosser: “So if you had 80 hours and most of it was taken up with alcohol, and the rest to all the other drugs, how many were dedicated to opiates?”
Simas: “I don’t know?”
Schlosser: “You gotta gimme more than that, c’mon! You’ve got the 32 hours at the academy, then the 80 in Drug Recognition Expert class, what’s that — 112? Most of it’s alcohol and all the rest, the PCP, the Meth, the Pharmaceuticals, coke and smack — the whole shooting match — how much of that time did you spend talking about opiates?”
Simas: “I can’t tell you.”
Schlosser: “You can’t tell me. Would you be able to estimate? Was it 20 minutes? Was it an hour?”
Simas: “I, uh, guess so.”
Schlosser: “You guess what? 20 minutes to an hour?”
Simas: “Uhh… Yes, that’s about right.”
Schlosser: “Okay, I can work with that. Now, with all that training, how many evaluations for opiates have you actually done?”
Schlosser (grinning again): “None, correct?”
Simas: “Uhh… I don’t know.”
Schlosser: “I see you looking at your card.”
Simas: “I always do.”
Schlosser: “May I see it?”
Simas (hedging): “I uh, guess so.”
Schlosser took the card and asked the judge if he can copy it. LaCasse said he could and Schlosser returned the original to Mr. Simas. The Deputy DA wanted one too. Schlosser handed Rosenfeld a copy saying, “Here ya go. Now you’re a bona fide Drug Recognition Expert.”
There were 12 steps on the card, just like Alcoholics Anonymous.
Schlosser started taking Simas through the numbers but Judge LaCasse lost his patience.
“This is not a proper voir dire, Mr. Schlosser.”
His honor pretty much told Schlosser to sit down and shut up. When Schlosser said he objected for the record, LaCasse cut him off and said he was going to go ahead and make Mr. Simas an “expert.”
“You’re going to certify him as an expert with 20 minutes training and no experience!”
“I am not going to repeat my rulings, Mr. Schlosser,” LaCasse shouted. “Do you have any more questions, Mr. Schlosser?”
Schlosser smiled and said, “For the record, I’m going to object that this guy’s an expert,” and sat down.
You had to admit that Schlosser had done an excellent job discrediting the poor mope.
A Dan Haehl trial was running simultaneously. I couldn't miss seeing my pal in action so I jogged downstairs to catch Big Dan in action.
The old folks at the rest home were as curious as cats when the house painters moved into a spare room and set up shop. The “retirement community” was in need of a new coat of paint, and even watching paint dry can seem like excitement to those of us who have become obsolete before we finally check out.
But after the paint crew had cleaned up and punched out for the day, and the old codgers were practicing up for eternity, along came a young man, drunk out of his mind. Or drunk in full possession of his mind. That was the question the jury was being asked to decide.
It was well after closing time when the kid espied the window the painters left open so as not to asphyxiate the seniors inside. For some reason, this junior souse, Derae Williams, 18, climbed inside.
Beth Norman, prosecutor: “Mr. Williams went through that window looking for anything he could steal. How do we know this? He had the paint on his clothes. He brushed against the wet paint on the door casings, got it on his clothes, and went on his way looking for things he could steal and hock for booze. He’s a confirmed alcoholic, and I would say a conditioned alcoholic, a functioning alcoholic, a drunk who has his wits about him even when he’s been drinking. So what did he do? He picked up the drill.”
If this guy’s a conditioned, functional alky at 18, he must have started drinking in a previous lifetime. To a Buddhist, this is not inconceivable.
Painters often use a drill with a long paddle attached to it to stir big buckets of paint. This is the drill Ms. Norman was referring to.
“So he picked up the drill as something he could hock for more booze, something he could steal. Then he came across the fire extinguisher. So he set down the drill and picked it up. Then he set it back down — probably because he was encumbered, but at any rate, this is when Priscilla heard some loud banging and came to investigate.”
Priscilla is the night watchperson.
When she came into the hall and saw Derae, the kid looked up, with the drill in his hand complete with its long barrel-like attachment, and the old gal mistook it, in her state of alarm, for a gun.
Derae said, “Where is everybody?”
Priscilla noticed the scent of alcohol, sized up the intruder accordingly, and said with a winning smile, “Why young man, they’re all right over here, just waiting for you.” The canny Priscilla beckoned toward an open door, and when Derae went through it, she locked him in and called 911.
When the cops arrived, Priscilla said, 'No, it wasn’t a gun, just the painter’s drill.' The SWAT team and the Major Crimes Task Force, dress blues, tennis shoes and a light coat of oil, had appeared, scoped rifles at the ready, only to be sent home disappointed.
Ms. Norman said, “There’s been some talk from counsel [Mr. Haehl] that Mr. Williams was bumbling, lost and confused. But he’s very calculating and precise, he’s focused. We see him pick up the drill — a very valuable tool — then the fire extinguisher — anything he can hock for booze, he’s so obsessed. He’s a smart guy, he knows what he’s doing.”
An on-task drunk? I don't think so, but he'd come in through an open window so our guy Derae was at least an agile drunk. Also, it seems that Ms. Norman has never been in a pawn shop, but I can tell her that an old paint-spattered drill wouldn’t get you the price of a Bud Light, and a fire extinguisher would bring the law down on you.
So what is this all about?
In one court we have Bert Schlosser trying to get a guy off who needs a serious time out to do some serious reorienting of himself, and downstairs there’s Beth Norman trying to burn a kid up for nothing more than being young, stupid and drunk.
Dan Haehl for the defense rose to say, “Thank you, ladies and gentlemen … tremendous civic responsibility, this. America’s a unique place… a free country, so they say, with all these rights and such where you’re supposed to be presumed innocent and all that....”
The jury went to lunch, and within five minutes of their return they came back with an acquittal of the first degree burglary charges, saying Derae was guilty of nothing more than trespassing.
Back upstairs, Bert Schlosser was at the summation phase of his trial, and Judge LaCasse couldn’t legally curb the galloping red-faced warhorse. Schlosser was going on about voo-doo science, junk science, bogus credentials, as the jurors sat looking on disbelievingly. The public defenders who had come to cheer him on, fresh from Haehl's triumph downstairs, slowly deflated as Deputy DA Rosenfeld got up to rebut.
“There’s an old saying at law school, that goes like this: When the facts are on your side, you pound the facts; when the law is on your side, you pound the law; when nothing is on your side, you pound the table. Ladies and gentlemen of the jury, that is what Mr. Schlosser has been doing through this whole trial.”
Mr. Oxycontin was guilty as charged. He was sentenced Tuesday afternoon to...