The Talmage Flag Burner
by Bruce McEwen, July 16, 2013
Doff your hat and clap your hand over your heart! If in uniform, snap to attention and salute! Run up the colors, and play “The Stars and Stripes Forever”!
“I’m not safe at the jail,” hollered Michael T. Grunwald, suspected of torching Old Glory.
“They’re after me!”
Grunwald could be heard howling in anger, fear and perhaps pain, all the way down the elevator and out the back, condemning the court, slandering the judge, the system, the halls of justice, the whole show. Everyone was gape-mouthed. Grunwald had pulled off one of the all-time Courthouse freakouts.
But he hadn't helped his defense much.
Mr. Grunwald, 58, of Talmage, was arrested June 13th, the day before Flag Day, and charged with arson. He was accused of burning a neighbor’s flag that same morning at 2070 Old River Road. Nobody saw him burn the flag, so Grunwald seemed to think he had an open and shut case for his own innocence and decided he didn’t need a lawyer. He could handle the matter himself.
To many people, defending yourself in court seems simple enough. You just tell the judge what happened and he or she will understand. Judges, being fair and reasonable individuals of intelligence and with their share of experience in the big, wide world, will be understanding. Tell it to Judge Simpatico and he or she will cut you loose.
Unfortunately, it doesn’t work that way. Except in closing arguments, you are seldom allowed to tell the judge what happened. By the time you get to court and find this out, it’s too late to make a new plan. All you are going to be allowed to do, you discover, is ask some questions of a witness, which, in this case, was the cop who busted you.
The cop will have told his side of the story at the prompting of the prosecutor, and your side must be told only through cross-examination of the cop. Ever try to get somebody — someone on the other side — to tell your side?
The cop won't think you have a side. He will not want to answer your questions, and he will know how to dodge them even if you do get off what you think are real zingers. You will get frustrated and flustered and look like a fool. Worse, you’ll get convicted of whatever you’re charged with. Then, if you're human, you’ll get angry at the system and everyone involved in it, and make yourself look not only guilty but also crazy, even to those who would otherwise have thought you sane and innocent.
Keep in mind that the rules of evidence are complex and rigid. Even experienced lawyers have difficulty getting it right. In fact, most lawyers are not trial lawyers for the simple reason that presenting evidence in court is too demanding, too tricky, and they simply can’t manage it.
The former DA, Meredith Lintott, had a court date last week but didn't show. She sent her lawyer, Mr. Kindopp (see below)*. Ms. Lintott is a seasoned lawyer, been in lots of courtrooms. Why would she feel the need to hire a lawyer? Because she knows better than to represent herself. When professionals with extensive education and experience know better than to go to court without a lawyer, why would you, Mr. Grunwald — especially when the judge is willing to appoint one for free?
Mr. Grunwald was the latest example of this timeless folly of a fool representing himself. It was Grunwald’s word against the cop’s.
Deputy Paoli had arrived after the flag fire had been doused. But Grunwald was still footin' it on home, and he'd been seen in the immediate vicinity of the flag burning. It still seemed to Grunwald that he had a fair chance of winning the case.
But Grunwald didn’t understand, for one thing, that this was a preliminary hearing, not a trial. The prosecution, in the form of a talented young lawyer named Josh Rosenfeld, did not have to “prove beyond a reasonable doubt” that Grunwald burnt the flag, making him an arsonist, since the flag was attached to a house.
At a prelim, all Deputy DA Rosenfeld had to do was make the judge “reasonably suspicious” that Grunwald may have set Old Glory aflame. And while losing a prelim is not a conviction, it is at least halfway there, and most reasonable defendants see the writing on the wall, as it were, and settle for whatever they can get when the facts are laid out during this first hearing. Another thing Grunwald didn’t seem know was that this was a 115 prelim, a result of Proposition 115, which meant the prosecution didn’t have to subpoena all the witnesses they would bring to a trial. In essence, it meant the cop could repeat hearsay as evidence; that is, what other people told him about what had happened.
In the old days, before Prop 115, anyone an officer spoke with would have to be brought to court and sworn in to testify, like in a trial, so the defense could cross-examine them. Not anymore. And herein lay the Mr. Grunwald's doom on his first excursion into “the system.”
As mentioned earlier, Mr. Rosenfeld is a talented trial lawyer. But it didn’t take much talent to put Grunwald on the ropes. Rosenfeld called Deputy Paoli to the stand, his only witness. Paoli said when he arrived at the scene he talked to a cable splicer for AT&T, Brian Farrer. Farrer told Paoli that he saw the suspect, Grunwald, walking away from the burning flag at a fast pace. Just then a neighbor came out of a nearby house, a Mr. Diaz, who helped Farrer put the flag fire out. Mr. Diaz said he recognized Grunwald from the previous day, June 12th.
On June 12th, a vehicle had hit a power pole in the area and knocked down some power lines which started a grass and brush fire. Mr. Grunwald was there trying to put the fire out, and he became angry at the other residents who had not helped him fight the blaze before the Ukiah Fire truck got there.
Deputy Paoli was allowed considerable latitude in his narration, which an experienced lawyer would have objected to. Grunwald was not an experienced lawyer. And DDA Rosenfeld knew what questions to ask to dig the defendant in deeper.
“Do many of the houses have wells and electric water pumps in that area?” Rosenfeld asked.
“Yes,” Paoli answered, “and with the power lines down, the homeowners were unable to use their hoses to extinguish the fire.”
“So, there was no water and Grunwald was upset, yelling at people?”
“Yes. He was very agitated with the local residents for not providing water.”
The next day, after the flag fire was put out, Sergeant Dan Edwards responded to the arson call and saw Grunwald, who fit the description Diaz and Farrer had given him, in the 1200 block of Talmage Road and searched him, finding a Bic lighter in his pocket. Grunwald was asked if he had “an issue” with residents in the area the day before, and when he admitted he was upset with them for not helping put out the fire the day before, he was taken into custody.
On cross, Grunwald said, “Supposedly, those people recognized me from the day before.”
“What is your question, Mr. Grunwald?” Judge Ann Moorman asked. “You have to ask the witness questions. You can’t just make statements.”
“I want to know how they recognized me.”
“You have to ask a question.”
“How did they recognize me?”
Paoli said they recognized him as the person trying to put out the fire the day before.
“Right across the street is Buddha Land,” Grunwald said.
Paoli looked on blankly.
“What’s your question,” Moorman asked.
“Well, isn’t Buddha Land right across the street?”
“Yes,” Paoli said.
“And there’s lots of dry grass and fields there, correct?”
“So if you lived up the street like I do you’d think I was right to fight that fire!”
“That’s not a proper question, Mr. Grunwald,” Moorman said.
“This was an electrical fire, wasn’t it? And you don’t fight an electrical fire with water, do you?”
Paoli said nothing.
“Oh… Now, you say your sergeant searched me and found a Bic?”
“Did he also say I smoke cigarettes — it was very nice for you he left that part out?”
“That’s argumentative, Mr. Grunwald.”
“Well, did he find anything else?”
“Did Diaz or Farrer actually see me light the flag on fire?”
“So we don’t even know who did it. Was anyone seen lighting the flag on fire?”
Grunwald was out of questions, and deputy Paoli stepped down.
“Do you want to argue, Mr. Grunwald?”
Grunwald said, “I see there were no eyewitnesses that I lit the flag on fire. I was seen in the area and that’s all. So, I’d move to dismiss this case.”
Moorman said, “The burden on the people in a prelim is not to prove beyond a reasonable doubt that you set the fire, but only to create a strong suspicion that you may have, and they have met that burden. The testimony from the witness was that you were seen leaving the area in a hasty fashion, and the flag was burning. That is reasonable suspicion, and I’m going to hold you to answer.”
Grunwald had lost, but he wanted out of jail. His bail had been set at $100,000 because as soon as he'd bailed out of jail on the flag burning arrest, he went to his ex-wife’s house and took a rather ominous array of items from her — a pair of coveralls, a hatchet, a pair of slippers. There was also an allegation that he’d whispered in his ex-wife's ear while she was sleeping and had otherwise annoyed her. The whispers apparently weren't of the sweet nothings genre because his ex immediately called the police. Then there were some charges of taking things from a car, an allegation of possession of a controlled substance. And since Grunwald had accumulated these charges while on bail for the flag burning his bail had been increased to $100,000.
“I’d like to get OR’d,” Grunwald told Judge Moorman. “I need to pay rent and I have animals to take care of. I’ve made all my court appearances, and I’ve lived here over 20 years.”
DDA Rosenfeld said Grunwald represented a threat to both the community and his ex-wife and bail should remain at $100,000.
Judge Moorman agreed, at which point Grunwald went all the way off.
“Do you know how many times these cops have arrested me on little bullshit charges?” Grunwald yelled at the judge. “Just because I turned in their little dope dealer who was selling drugs down at the high school? And I don’t feel safe with these cops, they’re out to get me. Look! [holding up his shackled leg] — Look at this! There, now I’ve said it: it’s out there, in open court. But this court isn’t worth a shit, and neither are you. You need to fix your hair, your hair’s a mess!”
Dude, you just went so far over the line you'll need a compass to find your way back.
The deputy was hustling Grunwald out as fast as he could, but we could hear the defendant loud and clear all the way downstairs.
The guy probably ought to get a sanity hearing. If he isn't nuts he's doing a great job faking it.
*The case against former DA Meredith Lintott is a libel suit brought by Robert Forest of Fort Bragg, as described by Tim Stelloh in these pages back in 2009 and re-printed here. Recently, a state appellate court rejected Ms. Lintott’s claim that Mr. Forest’s suit was a SLAPP suit, thus allowing it to go forward. But it’s not scheduled for trial until next year, at the earliest.
Fort Bragg’s Smoking Police Report
That's what caused the argument between Robert Forest and Stanley Douglass one November afternoon three years ago, in 2006. They were in downtown Fort Bragg, and Forest was walking from a coffee shop back toward the bar where, earlier, he'd had a couple drinks and where he'd parked his motorcycle. Douglass was walking along Franklin Street. They met. They scuffled. And that's when Forest, then 54, removed a .32 pistol from his pocket and aimed at Douglass, then 26.
That much is clear.
How that scuffle lead to a federal lawsuit filed two months ago claiming a former Fort Bragg cop had altered police documents, thus causing Forest's “wrongful” and “malicious” prosecution in the same case, is another story.
Which we'll get to.
First, a bit more on that cigarette. How the argument happened is still up for debate: According to police reports, Forest said he was walking back from Headlands Cafe when Douglass, who's black, approached him, grabbed him, demanded a cigarette. Forest told police that Douglass had said he was a gangbanger and that he'd rough Forest up. Forest also said he felt threatened, so he got his pistol — for which he had a concealed weapons permit (that would later be suspended).
Douglass put it differently. He told the cops that as he was walking past the bar, saw Forest and asked him for a cigarette. An argument followed, so Douglass started walking away — which is when Forest grabbed him and pulled out the gun. A witness provided police — and later the DA — with a version of events that more or less matched Douglass's. The police arrested Forest (who, it turned out, had been convicted 20 years earlier for carrying a concealed, loaded weapon), charged him with assault with a deadly weapon and forwarded the case to the DA's office.
Which is when things got weird.
About a month after the incident, Forest's arresting officer sent an email to recently hired Police Chief Mark Puthuff. The report had apparently been changed: Words had been rephrased. Conversations the officer never had had been inserted. Paragraphs where Forest described his side of the scuffle had been deleted.
“I was working on the supplement you had requested on this case, and when I began to re-read my (4 page) supplement to refresh my memory, I realized that it had been altered. No, I'm not kidding, it has literally been changed,” wrote the officer, Sgt. Brandon Lee. “I found some paragraphs inserted that I never put in there, and then found some missing as well. This is pretty typical fro [sic] FBPD. Anyway, I am sending you this email to let you know that I printed a copy of my supplement, with highlighted sections where the narrative had been changed or deleted. I find this very disturbing, because if I had not taken the time to review it, I never would have known it was like that.”
In the margins of the report, Lee scrawled comments noting which sections had been altered. “This is garbage,” he wrote at the top of the report, “and I would not testify to this under oath that I wrote this!”
Meanwhile, the DA's office was proceeding with the case — though shortly after Lee sent that email, prosecutor Tim Stoen learned of the problems at the police department. He learned that Lee had accused a veteran supervising officer, Lt. Floyd Higdon, of altering the report, according to court documents.
Forest, who once worked with Higdon as a reserve officer, had “professional and personal disagreements” with the lieutenant. The day Forest was arrested and booked, those differences were apparently on full display: Forest promptly asked if Higdon was the officer who'd ordered his arrest. (He was). “I should've known,” he told the arresting officer, Brandon Lee. When Lee asked if Forest could post bail in Fort Bragg, Higdon “insisted” that he be moved to Ukiah instead.
Shortly after these problems began, Higdon retired. He'd been on the force 25 years. He then left Mendo altogether for Merced in the Central Valley, where he's now a police commander; he'd been “recruited” by former Fort Bragg police chief Russ Thomas, he said. Higdon declined to comment on the charges, except to say he'd deny them and that he didn't alter anything.
Problems dogged the DA's case against Forest, however, and in January 2008, District Attorney Meredith Lintott dropped the charges against him. Nowhere in her decision did she mention the problems with Higdon and Lee; she simply said a conviction was not probable.
Tim Stoen, the prosecutor, still maintains that he would have gotten a guilty verdict if his boss had stuck it out. At the time, he made sure Fort Bragg PD knew how he felt.
“It seemed obvious to me that this conflict within the department was causing it to reverse position on the desirability of prosecuting Robert Forest despite the 'firearm seriousness' of the charge’,” he said, according to court documents. “At the preliminary hearing the defendant's first attorney stated in open court that the new chief of police [Mark Puthuff] himself had gone so far as to tell him — the defense attorney! — that Lieutenant Higdon had poisoned the reports in this case,” Stoen said. “After working for seven different elected District Attorneys, I cannot recall a single instance where the internal quarrels within a law enforcement department created a similar attempt to impugn the integrity of an ongoing prosecution.”
That “poison” is one of the central claims in Forest's federal case. So are the “disagreements.”
Nevertheless, the attorney representing Higdon — along with the city of Fort Bragg and the Fort Bragg Police Department, which are also named in the suit — said she's confident they'll win. “We believe the complaint to be unfounded and expect that will be the ultimate outcome,” said the lawyer, Nancy Delaney.
Donald Kilmer, Forest's attorney, said a tentative agreement has been in reached in the case, although details are yet to be worked out.
Jonah Owen-Lamb contributed to this story.