She Said No. He Said I’ll Wear A Raincoat.
by Bruce McEwen, April 6, 2016
UKIAH, Thurs. April 7. – Jury Trial Result: A jury returned from its deliberations this afternoon to acquit Luis Fidel Alvarez Andrade, age 25, of rape. The primary legal issue in the trial revolved around consent or lack thereof.
The prosecutor who presented the People's evidence in the sex case was Deputy District Attorney Shannon Cox. The investigating law enforcement agency was the Ukiah Police Department. Mendocino County Superior Court Judge Ann Moorman presided over the trial that spanned two weeks.
Waiting in the wings while the sex charges were litigated is a second felony case pending against Alvarez Andrade involving allegations of possessing marijuana for purposes of sale. That case will now be set for a preliminary hearing and, down the road, trial.
It would be easy to sensationalize the rape trial begun last week because the case was suddenly derailed on Wednesday morning when the defense produced phone messages refuting, supposedly, the convincing story the victim had told the day before.
Josenia Garcia testified that she wasn’t in the mood and had told Louis Alvarez-Andrade no, but he went ahead and forced sex on her anyway. Ms. Garcia described the incident in painfully convincing detail as Deputy DA Shannon Cox questioned her Tuesday afternoon.
Before the defense could cross exam Ms. Garcia, Judge Ann Moorman decided she'd heard enough for one day and recessed the court until Wednesday morning, which is when defense attorney Keith Faulder told the court that he had just been given a cell phone with messages on it that would “impeach the witness,” that is, prove the alleged victim was lying.
The text messages were in Spanish. Faulder had had them translated into English by his colleague Sergio Fuentes, and Faulder was ready to give the translations to prosecutor Cox. Cox, however, wanted the phone handed over so her translator, Marion Guzmán, could render its messages into English. Faulder was ordered to turn the phone over, and the court would reconvene later in the day to proceed with the trial.
Defense attorney Faulder had already told the jury that the evidence would show that the sex had been consensual, not forced, and that his client was not guilty. He said his client was too young to get too deeply involved with Ms. Garcia, and that she had wanted him to take off the proverbial raincoat — in fact she twice pulled it off! — go forth and multiply! Hallelujah! She was claiming rape, he said, because her lover had pulled out at the moment Republicans say life begins. (Democrats say life begins after two beers.)
It gets better — or worse, depending on which side you’re rooting for. False accusations of rape make it worse for real victims of sexual assault, and there are plenty of them. But then there are people who insist that no woman would ever lie about rape and, even if she did, it serves the man right for all the men who got away with it.
It's rough out there in Love Land these days, what with academic "feminists" claiming that merely complimenting a woman on her appearance represents a "micro-agression," from which the male beast immediately offers a back rub and, from there, the duped female suffers a sudden plunge of frenzied male hands into her no-go zones. "You look nice today, Sally," he said. "Get away from me you pig!" Sally shouted, pulling a palm-sized Beretta from her micro-mini.
When the rape case was called later Wednesday afternoon for a progress report, prosecutor Cox reported that there had been a problem with the equipment used to download the text messages. This is nothing new, actually. It happens so often, in fact, that if we didn’t know any better we’d suspect that the technical equipment law enforcement agencies buy is calibrated to defy any and all attempts to download exculpatory evidence. In this case, being watched so closely by a judge, the equipment did download the messages, but would not allow the investigators to open the file and read it.
Moreover, investigator Guzmán had found fault with Mr. Fuentes’ translation of some of the messages. How Guzman had read them when the file wouldn’t open was left unexplained. As the battle of the translations raged — the Ukiah version of the famous Wilson-Nabokov dispute over Anglo-Russian translations — the jury was sent home. The courtroom was dark Thursday for Cesar Chavez Day and the judge was gone on April Fool’s Day, as well.
On Friday, April 1st only one judge was present, the Honorable David Nelson, and he stayed only until lunchtime. With such an inauspicious court date as April Fool’s Day, those who would have had to come in the afternoon were no doubt relieved by this delay. The first name called, in fact, a Mr. McDonald, deliberately, it seemed, failed to show up. His lawyer, Anthony Adams, said his client had sent a text message saying that he thought his court date was set for the 8th, and could the judge please hold the bench warrant until then?
The warrant was promptly issued. The already apprehensive — defendants are notoriously superstitious — row of prisoners sitting in the dock murmured a string of curses on the absent McDonald for putting the judge in what they perceived to be a foul temper.
“Calling the case of Karl Barth. Is there a Karl Barth?”
There was, but he’d slid down in his seat, trying to go unnoticed.
“Kindly stand up when I call your name, please, so I at least know if you’re here or not…”
Why needlessly antagonize the one person who can either make or break your entire day? A corrections officer moved in Barth’s direction, and Barth shot to his feet, his belt (a length of tow chain buckled with a padlock) and bracelets (handcuffs on each side locked to the belt) rattling ominously.
“Mr. Barth you are being charged in Count One with corporal injury to a spouse. Is Karl W. Barth your true name? …You have to answer out loud.”
“Yeah, that’s right.”
“And it looks like you’re on probation for driving under the influence, so you’re also being charged with being in violation of your probation in that case, as well as another DUI probation form 2011. Do you wish to have a lawyer appointed?”
“Are you working?”
“I’ll just hire one.”
“Okay, I’ll give you some time to retain counsel and we’ll set it over in the Ten Mile court. I see there’s a request for a protective order…”
“Yeah, that’s what I want, keep her away from me.”
“The other way around is how it works, and you are not to have any contact with her.”
“It works both ways, doesn’t it?”
“No, it only applies to you. You’ll be in custody until Monday so I’m inclined to let it go over to Ten Mile, but you’re not to have any contact with her and that’ll be a condition of your bail, which I’ll set at $25,000 and $10,000 each for the two DUI VOPs.”
“Ms. Lincoln, it is being alleged that you are in violation of your probation for possession of marijuana, reckless driving and accessory to a felony; and, finally, a violation of probation on another case with a failure to appear on March 8th. Mr. Rhoades, how do you want to proceed?”
“We’ll be entering a plea on the accessory charge and admitting the VOPS, judge, if we could pass it for a few minutes to get the plea forms filled out.”
Mr. Zamora, readers may recall, was the guy who attempted to cool-cock Supervisor John McCowen with a walking stick while the Supervisor was rousting out a rat’s nest of homeless sots under a Ukiah bridge last summer. The supervisor, a native son with pioneer roots, spends much of his free time cleaning up after the bums who foul his beloved valley.
Zamora was deemed 1368 — that is, too crazy to understand the nature of the charges against him and unable to take an active role in his own defense. He was sent to Dr. Kevin Kelly for evaluation. Zamora is one of that growing legion of nut cases Ortner Management Group, the private, Yuba City-based owner of Mendocino County's mental health services, didn’t think profitable to deal with, and dumped back on the streets. Judge Nelson retired into his chambers for five minutes to read Kelly's prior report on Zamora.
“Back on the record in the case of the People verses Zamora.”
“Andrew Higgins on behalf of Mr. Zamora.”
“Johnna Sack for the People.”
“I’ve read the report from Dr. Kelly who says he found the defendant to be an, ahem, interesting person, but also finds that he is able to understand his situation and help in his own defense. So I am going to find him capable of proceeding with this case. Let’s set a preliminary hearing, Madame Clerk, without a time waiver.”
“Prelim will be April 13th with a confirmation hearing on the 6th, both at 1:30.”
“I’ll leave bail set at $15,000, and that’ll be the order.”
“People verses Scarberry and Quiroga…”
“David Eyster for the People.”
When the DA himself appears as prosecutor, which he often does, unlike his predecessors, it means the defendant is a person who The People don't want wandering around.
“Mr. Scarberry, there’s a charge on file for the manufacture of a controlled substance with a prior conviction of 11359 of the Health & Safety Code, and a Special Allegation of a principle armed with a firearm, a .22 and a shotgun, and that of a felon in possession of a firearm, as well as being in possession of a firearm while under the influence of a controlled substance. How do you wish to proceed?”
“I want a lawyer,” Scarberry said.
The infamous Ms. Alvarez, a particularly troublesome frequent flier haunting the Ukiah area, and formidably combative at an agile 300 pounds arrayed over not much more than five feet in height, meaning the cops have to somehow corral a virtual cannonball hurtling at them whenever they are called out to deal with her. We understand that the deal to relocate Ms. Alvarez to the State of Oklahoma was a parting gift from former prosecutor Paul Sequiera who got it done.
“Linda Thompson for Ms. Alvarez who is NOT present — ha-ha! At long-last! Yes, and I’m happy to confirm her residence in the State of Oklahoma, and ask she not — NOT — be placed on probation, for obvious reasons.”
“I’m inclined to leave at least one of the probations in place … just in case she has an inclination to return,” the judge said.
“Caitlin Keane for the People. This arrangement was crafted by Mr. Sequiera who is no longer with our office, but my understanding was that we’d cut her loose to Oklahoma, your honor.”
“That was my understanding as well, but I think I’m gong to, out of an abundance of caution, leave one of the probations in place.”
“Difficult to be too cautious in Ms. Alvarez’s case,” Ms. Thompson agreed. “But I’d request the court suspend the fines and fees as it’s highly unlikely they’ll ever be paid anyway.”
“In the spirit of the agreement, I’ll suspend the fines and fees and reduce the felony to a misdemeanor, as per the agreement that she would relocate to Oklahoma.”
“As to the probation left in place — will it terminate in January of 2017?”
“Yes, and those fines and fees are suspended, as well. We’ll take a short recess and then I’ll call the Silverman matter.”
Jacob Silverman was on for a prelim regarding possession of meth for sale, possession of pot for sale, and evading a police officer. Mr. Silverman had a prison prior for attempted murder, a strike, and had gone through a handful, a maimed handful, of lawyers all appointed by the court and paid for by the taxpayer, but none of them met Silverman’s lofty standards. As the court was about to call his case Silverman said he was unhappy with his latest free lawyer, Al Kubanis.
“Fuck you, Kubanis, I’ll fire you.”
“You’re breaking my heart, Silverman. You’re killing me.”
“That’s it, you’re fired.”
Al’s face lit up in a beaming smile.
“Calling the case of Jacob Silverman?”
“Caitlin Keane for the People.”
“Al Kubanis for Mr. Silverman who is present and out of custody.”
“Are the parties ready to proceed?”
“The People are, your honor.”
“Your honor, it seems my client would like to make a Marsden motion.” (To remove a lawyer, in this case, Kubanis.)
“Alright, I’m going to clear the courtroom and hear the motion.”
It was nearly lunchtime when the Marsden hearing ended. Judge Nelson denied Silverman’s request for a fifth free lawyer, but since the judge was not going to be available for the afternoon a new date had to be set, and Silverman's hearing was put over to April 21st.