‘Murder Is Messy’
by Bruce McEwen, December 11, 2009
“Murder is messy,” Judge Ron Brown commented, more to himself it seemed than to the courtroom as defense attorney Katharine Elliott tried to keep a jury from seeing the death photos of Enoc Cruz, 21, when he was allegedly shot to death by Marcos Escareno, 14.
Judge Brown asked the lawyers to bring the pictures up to the bench. They were printed on sheets of computer paper, full size, and could be seen from anywhere in the courtroom, kind of blurry, and not at all the stark black and whites seen on the front pages of American newspapers through the 1950s, some of which now regarded as art.
But the untidiness of sudden, violent death is, as the judge said, messy.
Escareno is now 17.
Mr. Cruz is 21 forever.
Mr. Cruz died three years ago in the proverbial hail of bullets on the Manchester side of the Point Arena rez. The kid who allegedly shot him, Marcos Escareno, was so drunk when the cops interrogated him after the event he literally couldn't stand up.
And what really happened anyway?
It was boldly reported at the time that another man shot Cruz, a man named Charlie Bristol. On the rez there's a consensus opinion that Bristol offed the thuggish Cruz, a purported drug dealer, because Bristol and perhaps one of Escareno's sisters owed Cruz dope money.
No Cruz no drug debt.
Despite his youth and a rather severe learning deficit — the boy hadn't spent much time in a classroom prior to the shooting — Escareno has not only been locked up for the past three years in juvenile hall, he's been magically declared competent to stand trial as an adult.
A competency jury deadlocked 6-6 on the boy's ability to comprehend the proceedings against him, let alone participate intelligently in them.
If the kid wasn't looking at 50-years-to-life it would be one more Mendo Farce. But it's no farce. Marcos Escareno is going to trial.
Ms. Elliott and her defense team, which now includes well known San Francisco attorneys Tony Serra and Omar Figueroa, were trying to get the case dismissed so the DA would re-file it in Juvenile Court where it logically has belonged all this time and money later.
Referring to her client as a child, emphatically and repeatedly, Elliott argued that there were no precedents for the decision made by the DA at the time (Keith Faulder, who was acting as DA at the time) to try “this child” as an adult. Elliot pointed out that in previous cases involving “children” a discussion involving the defense lawyers had been invited by prosecution. Such a discussion, she said, had never been invited or even, apparently, contemplated for Marcos Escareno.
The prosecutor now, Deputy DA Brian Newman, doesn't see it that way. He said that there was no provision in the law to entertain defense’s participation in the decision making process. Besides, he asserted, there was no assurance that his office would re-file the case in Juvenile Court; they might just as likely re-file in adult court.
Judge Brown noted that an earlier discussion on the matter had been about whether the court, him, had discretion to review the DA’s decision.
If Ms. Elliott was questioning the constitutionality of Proposition 21, which lowered the age at which a juvenile may be charged as an adult from 16 to 14, Judge Brown said, “they found it constitutional. Why should the court intervene with the DA?”
Elliott referred to People vs. Mandalay. She said, “until then we had no real law about the issue. Now, nationally, there is a conversation, a consensus that children are different. But there’s no mechanism to discuss a child’s competency. This is a new area of the law,” she said, “a proposition by the people.”
Judge Brown conceded that the law may have been clearer if it had been created by the legislature, and he agreed the court had discretion to dismiss.”
Again, Newman disagreed.
“The court does not have authority to override the People’s charging authority,” he said flatly. “The court has very broad discretion,” he said, “but not unlimited.”
Before Judge Brown could argue for his decisions in the case, Mr. Newman took a gratuitous shot at what he apparently thinks is a lot of politically correct bushwa.
“They’re saying the People charged defendant with homicide because he’s Native American!” He said that of the 18 kids they could have charged as adults, only nine actually were. And only two homicides, the other being “Mr.” Coleman, who, Newman pointed out, was not a Native American.
Ms. Elliott had represented Coleman, too. “Coleman,” she said, “shouldn’t even be part of this discussion.”
“The fact that they both used a firearm,” Newman said, “is why they were charged as adults.”
Judge Brown said he would have to review the authorities before deciding.
“Ms. Elliott’s last comment poses particular difficulties,” he said. “If the only thing that brings a 14 year old into adult court is the alleged use of a firearm --?” He looked to Mr. Newman for a response.
Mr. Newman said, “an offer has been put forward,” meaning “take it or leave it” and folded his arms resolutely, closing the discussion in his own granite way.
The next day the record quietly reflected that Brown, who has ruled throughout against Escareno, had denied the defense motion to re-think charging the kid as an adult.
Marcos Escareno's trial began Monday with jury selection.
* * *
As it happened, Brian Newman was prosecuting another Native American last week, Mr. Andrew Card of Covelo. Mr. Card had no previous record prior to a memorable day a few years ago at a rodeo when Jason McLean walked up on him from behind and broke a beer bottle over his head. Card produced a knife and stabbed McLean.
Then, last June 7th, Card ran into McLean, again. They were both drunk. This time, McLean went to his truck and took out a high-powered hunting rifle — a .300 Winchester Magnum — and shot Card at point blank range, nearly blowing his left arm off. Which didn't prevent Card from producing a pistol with his remaining arm and shooting McLean dead.
As in the beer bottle episode, the victim had been the aggressor. But Card had violated his probation for stabbing McLean at the rodeo when McLean hit him over the head with a beer bottle. Card wasn’t supposed to have a gun. He wasn’t supposed to be drunk. And he was supposed to stay away from Jason McLean.
The Probation Office recommended two years in prison for the now one-armed Mr. Card. Prosecutor Newman wanted more time, a lot more time.
As did McLean's father who pointed at Card and shouted, “Your honor, that man was not defending himself!”
“Objection, your honor,” Mr. Tom Mason, Card's defense attorney, shouted back.
McLean's father whirled and pointed at someone in the gallery: “That woman and her brother, your honor, were there to make noise while he murdered Jason!”
“Hearsay, your honor,” Mason roared.
“This is my courtroom,” Judge Brown shouted, slamming a law tome onto the bench with a resounding BANG!
McLean's outraged father was not to be silenced. He said Card had been in the process of attacking a handicapped kid when his son interceded.
“Andrew was going for the knife to come back and finish him,” the father said. “This girl and her brother,” — the father again pointed to the gallery — conspired to go out there and kill my son.”
“There is no proof,” defense attorney Mason countered, “that when McLean fell to the ground my client stood over him and continued to fire.” Mason said “Mr. Card” had been “totally remorseful and had admitted to his guilt. And it should be pointed out, Mason said, that Mr. Card was doing quite well on probation. “My client,” Mason concluded, “has received many death threats — he had to be escorted from the funeral, and he will need protection and medical attention in prison.”
We all wondered why Mr. Card would have attended funeral services for the man he killed, but it went unexplained.
Jason McLean’s father raged on.
“Why should he have protection?” he demanded. “Nobody’s threatened him. We just want to see justice done.”
The courtroom was jammed with partisans from both sides of the tragedy, one young man killing another young man from the same small community. Rather than arraying themselves on opposite sides of the room as is usual in murder cases, everyone from Covelo was seated together without regard to their feelings on the matter.
Newman wanted the maximum term of six-to-eight years in prison.
Judge Brown asked, “Are we submitted, then?”
Everyone was submitted, if not submissive.
“There’s obviously a lot of emotion involved,” Brown acknowledged. “It is a serious case and the public safety has to be considered.”
The judge rejected the defense's request that Card’s probation merely be re-instated and found probation's recommendation of two years in state prison too lenient. Yet, prosecution’s insistence that the judge throw the book at Card for a maximum term was too severe, especially considering that the victim had been the aggressor.
Judge Brown settled on the mid-term of three-to-four years in prison, but since Card had already been confined for 579 days out on Low Gap, Card is already about half way home.
Judith McLean, aunt of the late Jason McLean, has posted the following letter about the death of her nephew:
“To whom it may concern,
“This letter is from the McLean family, and is being written in order to convey our knowledge of the truth regarding the murder of Jason McLean and the incident involved. We are outraged at how incorrectly and with prejudice the media is reporting this tragedy, as well as how the police have been investigating (or rather, HAVEN'T been investigating) said incident.
“First off, I would like to point out the fact that this was NOT an isolated incident between two random people. It is common knowledge throughout our community (and beyond) that Andrew Card has, in the past, already attempted to kill Jason — approximately two years ago at a rodeo dance in Covelo. Andrew had been threatening a mentally-impaired young man from out of town, and Jason stepped in to defend the out of towner from someone who, in his opinion, was out of line. An argument erupted between Jason and Andrew over the matter, then escalated in intensity until it reached the point of a physical confrontation (there were many witnesses to this). When the fight was over, Andrew left, and Jason resumed his enjoyment of the event. A short while later, Andrew returned to the event armed with a large hunting knife, seeking out Jason and stabbing him several times in the back. The knife punctured Jason's lung, his colon, and his spleen. (Jason died twice while being rushed to the hospital, and had to be resuscitated by paramedics.) A doctor among the doctors who worked to save Jason's life told us that whomever had tried to kill Jason knew exactly what they were doing when they stabbed him, and they were trying to kill him.
“What's terrible is the fact that Andrew was only charged with Assault with a Deadly Weapon, and he only served ten months in jail. Afterwards he was right back in Covelo.
— Judith McLean, Jason McLean’s aunt.”
* * *
In an adjacent courtroom three dubious dudes from Los Angeles, each with felonious histories, were arraigned on charges of two counts of attempted first degree murder along with additional criminal counts of robbery and possession of firearms by felons as well as nine special allegations. The defendants — Darvel Eugene Blackwell, Marquis Vuitton Walker, and Clifton Lee Jacobs III — are alleged to have come to Covelo with “premeditation and aforethought” to kill and rob Robert Long and Jackie Slade, to take the couple's marijuana and money, shoot them and drive back down to L.A.
Either Mr. Long or Ms. Slade, which one still not identified, was shot between the eyes and remains alive only through the miracle of modern medicine. Should this victim of the peace drug die, the charges will shift into high gear, murder in the first degree.
The preliminary hearing for the L.A. Three has been set for December 15th.
* * *
In gun play of the inadvertent type occurring right here in the tranquil Anderson Valley, Shannon Archer, aka Shannon Duval, was present to answer to the negligent discharge of a fire arm. According to the “factual basis for the complaint” Ms. Archer had clocked Joe Martin of Navarro with a .357 Magnum revolver, a Ruger Blackhawk. You know you've been hit on the head when you get hit on the head with a Ruger Blackhawk. It's a big gun. Ms. Archer hit Joe Martin on the head with the Ruger Blackhawk to emphasize a fact Martin was apparently unable to grasp — Mom did not want him around her daughter. Mom's problem with law enforcement began when the gun went off as Mom twice went upside Martin's uncomprehending head with it. The weapon went off. Twice, plugging Mr. Martin's vehicle. The judge said that at a minimum there would be some restitution reserved for damage to the vehicle and that the dents in Martin's head would probably also require compensation.. Ms. Archer/Duval will be back January 15th for sentencing when the probation office will have prepared and submitted a full report.
* * *
Glenn Sunkett, the Oakland man convicted of a Fort Bragg home invasion during which a blow torch was brandished in the vicinity of his victim’s genitals, was in court again, still trying to trade in his public defender Linda Thompson for a new attorney. Ms. Thompson wanted to know where she stood in this process.
“Do I need a lawyer?” Thompson asked the judge.
Judge Brown said, “The issue of a new trial is not going to be heard in a Marsden Motion.” He cited the problems of security in transporting Sunkett to court. There were nine sheriff’s deputies in the courtroom with Sunkett, one of whom, the biggest, escorted the defendant with a wad of Sunkett's striped sleeve in his fist.
Apparently Sunkett is considered the baddest guy they've held out on Low Gap, the baddest anyway since the Hells Angels.
Sunkett wanted to speak.
Sunkett said he was having problems at the jail, but the judge cut him off before he could get into the specifics.
“You need to go through the proper channels, file the appropriate forms giving the Sheriff’s Department notice of your complaints so that they can respond. Go through your attorney,” the judge said.
“Which one? Sunkett wondered.
“Ms. Thompson,” the judge said.
Sunkett was sunk.
Marcos Escareno plead out Tuesday afternoon to manslaughter. Escareno's attorney, Kitty Elliott, said the original offer from the DA had been 21 years, but reluctantly agreed to probation with a possible 10 years in a youth facility. The defense felt that witnesses for Escareno were being intimidated by the more likely killer, as mentioned above, and that a trial put Escareno at risk of 50 years in prison for a crime he probably didn't commit. Sentencing is set for January 27th.