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by Tim Stelloh, March 30, 2010
“The sucking thing.”
It was an incongruous phrase to hear repeated ad nauseum within the proper environs of a courtroom. Yet there it was—this reference to Kenny Rogers’ principal argument that his old lawyer was a bush leaguer and that he deserved a new trial—repeated again and again for everyone gathered at Ukiah Superior Court Friday. It was an argument Rogers would lose, and by the end of the day he’d be sentenced to 25 years to life for attempted murder and conspiracy to commit first-degree murder.
Yet there he was, this former assistant fire chief and chairman of the Mendocino County Republican Central Committee, as gaunt and pale as you’d expect, dressed in an orange jumpsuit, seated in the jury box with a handful of other inmates. There was Alan Simon, who says that nearly five years ago Rogers tried to have him murdered over a water-related political dispute in Westport, the village in Mendo’s remote northwest corner. There were friends, family and supporters, divided by loyalty, fiddling with hearing aids, whispering to one another as the day’s proceedings wore on. There were the other orange-clad inmates who, upon hearing the attorney with the dark suit and devilish eyebrows pepper his lawyerspeak with the reference, giggled like kids who’d just overheard their churchgoing parents drop an f-bomb.
“The sucking thing.”
Usually, the sucking thing—or the sucking “issue,” as it was later phrased—was accompanied by another squirm-prompting expletive: “The nigger statement.”
This couplet referred to an incident from the spring of 2004—more than a year before Richard Peacock, an ex-con and former employee of Rogers’, would be arrested for firing a .22 Ruger at Simon nine times. A drive to recall Rogers from his post as Westport’s water district chief had recently commenced, and Rogers was going door to door trying to convince the town’s few dozen or so year-rounders who’d signed the recall to please reconsider. He showed up at Simon’s two-story home on Hillcrest Terrace and made the pitch; Simon, who was fairly new in town but would soon replace Rogers as the district’s leader, declined.
“I said ‘no, we’re a democratic society and people feel you’re not doing your job,’” Simon testified during last summer’s trial. J. David Markham, Rogers’ attorney at the time, asked what happened next. After a few awkward moments, Simon dropped a bombshell: “[Rogers] said, ‘you want to have a nigger run this town? You want to have a woman who’s sucked the cock of every man in this town be in charge?’”
Simon testified that he then told Rogers to leave.
Simon’s revelations were, of course, stunning. The people Rogers was allegedly bashing were his well known water board enemies—one was leading the recall against him, the other he’d accused of assaulting his wife, Christine. As Simon uncomfortably described the episode last summer, Rogers, seated at the defense table, shook his head in seeming disbelief—yet his attorney never tried to make Simon look like a liar, nor did he immediately ask the court to strike the response. That didn’t come until the following day, after the jury—which contained several women—had had plenty of time to reflect on just how repugnant this pillar of conservative politics was.
During the trial, Markham told me the exchange between Rogers and Simon never happened. And he testified Friday that he thought he knew what Simon was going to say when he asked, “What happened next?” When he realized he was wrong, he simply dropped the issue. He said he didn’t want to draw more attention to what was a very bad situation for his client.
Rogers was incensed with this strategy. And for the first time since his trial began, he sat in the witness box Friday and described how he believed Simon’s alleged lie and Markham’s faux pas had irrevocably turned the jury against him. “They were shocked,” Rogers said. “They didn’t make eye contact after that.”
While testifying, Rogers appeared calm and stoic. He spoke in measured tones, making sure to avoid any of prosecutor Tim Stoen’s traps—traps designed to expose, or at least provide a glimpse of, the inner racist supposedly roiling inside Rogers. Stoen, for instance, took several minutes probing Rogers’ alleged ties to the KKK—ties apparently explained through a photo of Rogers from happier times in which he’s posing in front of a motor boat with “Rogers Klan” scrawled across the stern. There was no indignation in Rogers’ response—yes, he knew what the KKK was, he said matter-of-factly, but he’d never been a member. And the boat—why did he use a “K” instead of a “C”? “It’s a nice name,” he said.
Rogers’ grace under scrutiny was was another of his beefs with his old lawyer: He wanted to testify—particularly after he’d been tarred as a racist misogynist—but Markham made that impossible. He’d both discouraged Rogers and never told him he had the right to testify, Rogers said. On both points Markham disagreed. He’d ultimately left the decision up to his client, though he told him testifying could be trouble, as he didn’t think Rogers could sufficiently explain certain evidence.
Markham’s decision was, in other words, tactical. It was an argument he’d make again when Giffard began hammering his handling of the so-called “red dog” episode.
This strange sub-plot begins with Richard Peacock, the former employee of Rogers who was convicted of shooting Alan Simon, and a letter he received from the Rogers family (but which was signed under the pseudonym “Kate”). Among other things, the letter says that “I will get the ‘Red Dog’ to your daughter.” Peacock, who has a penchant for spontaneity, interpreted the letter to be a coded threat, and said as much, unprompted, in the courtroom one day during his preliminary hearing. The red dog, he said, referred to a .45 owned by Rogers—a gun with a red engraving of a dog on the handle. If Peacock testified against Rogers, his erstwhile employer would do something very bad, presumably with the gun, to his daughter.
In preparing for Rogers’ trial, Markham and his investigator made the long trip to Pelican Bay prison, where Peacock—who’d been convicted in 2006—was locked up at the time. In an interview, he told Markham that he’d made the red dog story up. He’d lied, he told Markham, because he was angry Rogers hadn’t gotten him a lawyer after his arrest. The episode was an important piece of evidence in the prosecution’s case against Rogers—but Markham never introduced the fact that Peacock had recanted. Giffard demanded 18 different ways that Markham explain this critical error, this decision that no reasonable, thinking attorney would ever make.
Again, Markham argued, it was a tactical decision: Peacock simply wasn’t a credible witness.
Despite the frontal assault on Markham—who, by the end of the day, was described as unthinking and unsophisticated, as an amateur who’d gotten in way over his head—Judge Ron Brown didn’t agree with Rogers. Markham’s tactics might have been ill-conceived—but they were tactics all the same and didn’t add up to a miscarriage of justice.
The conviction would stand.
In those final, emotionally-charged moments of the hearing—when half the courtroom erupted in tears, when one of Rogers’ former attorneys, apparently upset with the judge’s decision, charged out of the room, called Alan Simon an “asshole” along the way and was thus chased by a bailiff—the Rogers dichotomy was in full view: He delivered a solemn, bitter farewell in which he described himself as a man who’d been “trained to save lives—not hurt lives,” as a man who’d never hurt anyone in his life. It was a only few minutes before Simon provided the starkly opposing view. Rogers, he said, deserved the maximum sentence because Rogers was a “cold-blooded, calculating, cowardly sociopath.”