He Said She Said, But He Had The Facts
by Bruce McEwen, April 13, 2016
DA Press Release:
Ukiah, Thursday, 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.
Sitting down to write this report, I first scanned the Sunday morning newspapers online, which is my custom, and found this story in the New York Times that was nearly identical to the one I was about to write, albeit the one in the Times was written by the “rape survivor” herself in a first-person exploration of her “feelings.” There was no mention of the evidence in the New York case.
In both cases the accused had been found not guilty. In both cases the “rape survivor” had been having consensual sex with the accused man prior to the rape alleged, and while both “survivors” claimed to have said “no,” they had made no effort to repulse the alleged “rapist.” In both cases the “evidence” was entirely emotional, had nothing to do with the facts, and relied instead completely on how the “survivor” felt.
We hear so much about the lack of emotional maturity in men. We hear it everywhere, all the time. We hear it so much, that it seems to us guys that we need to try harder to understand, to suspend our masculine reason, roll back our testosterone and listen more intently to what women are saying. We should all be Alan Alda!
Okay, fine. I’ll try harder, but Alan is taller than me.
And after listening to Josenia Garcia on the witness stand, and having read Caroline Hurwitz in the NY Times, and trying my darndest to “get it,” I’m afraid I have to say that both these women appear to be mean and manipulative. They seem to take enormous satisfaction in needlessly confusing and complicating their relationships, not only making their men miserable, but putting them in jeopardy of having their lives completely and irrevocably ruined.
If this is emotional maturity, you can have it.
The accused in this case, Luis Alvarez-Andrade, happened into Stars Restaurant in Ukiah where a waitress named Josenia Garcia liked the look of him and asked her manager to introduce her. This was done, then Josenia told the manager she wanted Luis’ phone number as well, and this too, the manager procured. The texting started next day and the consensual sex commenced shortly after.
Josenia said she was deeply religious, always had been, and believed that sex was only for making babies — although she’d been having sex with Luis for less pious reasons up until the time of the rape accusation. None of this contradictory behavior was admitted on the stand, of course. But defense lawyer Keith Faulder came up with a cell phone that made it clear that baby production was not the reason for the preceding sexual encounters. Text messages made it clear that the lady was lying.
The defense said it simply wasn’t true. The sex was consensual. Josenia never told Luis no. She wanted a commitment from Luis is what it was really all about; she had all at once decided that she wanted to get married and have a family. Luis didn’t, though, and he wouldn’t take his raincoat off because he did not intend to become a father. (Us boys could learn from this guy.) Josenia then informed Luis that if he was going to wear a raincoat while he enjoyed carnel knowledge of her, he should get out and never come back.
Josenia then concocted the rape scenario to punish Luis.
A few days later after his final consenual encounter with Josenia, Luis got a call from Josenia. It was a pretext call with detectives from the Ukiah Police Department listening in. She asked him why he did it, without saying what the “it” was. Josenia's tone was injured. Luis thought she was referring to why he wouldn’t make a commitment. He had no idea he was being accused of rape. It was obvious to him, he said on the stand, that she was very disappointed in him. He was in the company of some of his friends when he'd received Josenia's call. He was, he admitted, maybe a little too cavalier. He said he was sorry, he hadn’t meant to hurt her.
This saying sorry Deputy DA Cox took to be a confession, an admission of rape, a felony that gets the rapist a free bus ride to San Quentin. Over and over, on cross-examination, the prosecutor asked Luis what he meant by saying he was sorry — asking the same question a dozen different ways. Faulder tried to object but Judge Ann Moorman, who may or may not view the male half of the species with extreme skepticism, overruled him. Luis, however, bore up under the sneers, the guffaws, the attempts to ridicule and dismiss his assertions that he had no idea at the time of the pretext call that he was even being accused of raping Josenia.
Ms. Cox had many times asked Josenia how this or that incident in her narrative made her feel — she was never asked what she thought of anything that happened, or was alleged to have happened. Only how she felt. Luis, on the other hand, wasn’t consulted about his feelings. The operating assumption was that he didn't have any.
The family of the “survivor,” the nurse who examined Ms. Garcia, the detectives, a friend and co-worker — all the other witnesses had nothing to add. Josenia was a rape victim. End of story. The only evidence in the whole case was that after Luis left, Josenia “felt” something bad had happened to her. She wasn’t even aware that she’d been raped until she examined her feelings. The jury took this information and retired to deliberate.
After a short recess, word went out that the jury had reached a verdict. I went in and found a seat thinking it was pretty much over for Luis. He was going to the state pen. All the women on the jury looked like dead ringers for Gloria Steinem — and so did some of the men.
The bailiff delivered the verdict forms to Judge Moorman. I watched her face for any sign of emotion but never saw so much as a flicker of movement. Her Honor handed the sheaf of papers to Madam Clerk Kristen Lozano who read off the counts — there were about a score of ‘em — everything from count one, forcible rape down to inadvertently brushing the rape survivor’s face with an eyelash — and on every charge the verdict was the same: Not Guilty.
As the jurors filed out of the courtroom, Luis looked punch-drunk, like he’d been hit in the head, stunned. He swayed a bit and Faulder took his arm to steady him. Then, after they’d all left, Luis' family rushed up to him and took turns embracing him. At this point he broke completely down and started sobbing in great convulsive heaves… Yes-yes, that’s what it’s all about, isn’t it? Drag the kid to the gibbet, put the noose around his neck, and then when you pull the trap door — hey, just kidding. We needed to teach the guy a little emotional maturity.
Josenia wasn't present for the verdict.
Ms. Hurwitz of the article in the NY Times tells us she’s retreated into the bunker of feminist literature to insulate her from the awfulness of men and recover from the horrors of her victimhood. The graphic artists at the NY Times pictured in an igloo built of books by Margaret Atwood and Alice Walker. That’s the appropriate for sure. She needs to chill out.
Across the hall defense attorney Faulder had another client he had to attend to.
Faulder’s other client, Amanda Sizemore, joined him at defense table as District Attorney David Eyster called his first witness, CalFire Battalion Chief Shawn Zimmermaker, who said he’d been called to an outdoor marijuana grow site at the end of Doolan Canyon Road outside of Ukiah last harvest season. When he got there who should he find but his old high school classmate, Amanda Sizemore!
DA Eyster had Chief Zimmermaker identify Ms. Sizemore and said he had no questions for the chief. Faulder had no questions for him either.
Eyster called Deputy Chief (Cal Fire) Craig Pedersen, who said he was on Doolan Canyon Road because the property owner had asked him to make sure the property was in compliance with the county’s fire protection code. While checking compliance the firefighters found the grow site and a Polaris Ranger ATV with a Hertz Rental sticker on it parked near the pot patch. Chief Pedersen contacted Hertz and Hertz confirmed that the ATV belonged to them and had been rented out in July but reported stolen in August. Pedersen turned it over to CHP Officer Casey.
Casey did the follow up investigation. Ms. Sizemore had rented the four-wheeler on July 16th. It was due back on July 22nd. On August 11th the credit card left on deposit for the ATV proved to be worthless and the vehicle was reported stolen.
In late November — over the Thanksgiving Day weekend — shortly after the Cal Fire officers had found it, the Polaris suddenly appeared in a parking lot next to the Hertz Rental office on Lake Mendocino Drive. By then the rental amount owed was $4160, about what the ATV had sold for when it was new.
On December 8th, the rental manager, Scott Chadwick, spoke with Amanda Sizemore on the phone and she said she’d come in the next day and pay the back rent.
On cross, Faulder asked Officer Casey if Chadwick had shown him a rental contract.
“Yes, I believe he did.”
“Did you see the return date.”
“I believe I did, yes.”
“And was it an estimated return date or an actual return date.”
Surely, a rental company would encourage its customers to extend the rental?
“I don’t recall if it was estimated or actual.”
“I’m showing you what’s been marked as Defense Exhibit A. You don’t recall if the return date was actual or firm, but take a look at that document and tell me if it refreshes your memory.”
“Objection, judge. Counsel is using an improper instrument to refresh the witness’s memory,” Eyster protested.
“As they say in law school, your honor, you can use a ham sandwich to refresh a witness’s memory, if it works,” Faulder responded.
“Overruled,” Judge David Nelson said. “Does it refresh your memory?”
“No, actually, it doesn’t. I can’t even see it.”
Faulder who had been peering over his reading glasses, whipped them off and passed them to Casey.
“Ah, that’s better. And yes, it does say ‘estimated return date’.”
“And Mr. Chadwick also said he had also seen a driver’s licnese and been given a credit card?”
“Yes, that’s correct.”
“So he gave her possession of the ATV?”
“And he told you the outstanding balance was for the days it had been out?”
“Yes, and he laughingly said he’d call me if he ever received any payment.”
Casey was excused and Faulder told the judge that the prosecution had failed to prove that the vehicle had been taken without permission or that his client had ever driven it, both being elements of the charge of violating section 10851 of the Vehicle Code. He further asserted that this was a civil case being prosecuted as a crime.
“She stole it, judge,” said Eyster.
“She returned it Thanksgiving Day, your honor.”
“It’s fraud. She left a credit card that was not good. The ATV was used to grow marijuana and returned after harvest — and then only because the fire chiefs saw it. And even if she were intending to, she still hasn’t made good on it.”
“It’s a matter for the civil courts, your honor.”
“Judge, I don’t think Mr. Faulder gets to say what’s civil and what’s criminal.”
“Your honor, in order for it to be criminal, she has to take it and then she has to drive it — prosecution has proved neither of those two elements of the charge.”
“That’s for a jury to decide, judge.”
“I find there’s enough circumstantial evidence," Judge Nelson said, "that she drove it and, circumstantially corroborating criminal intent is the fact that she ignored the implication of the turn-in date by failing to contact the rental company and communicate her intentions, so I’m going to hold her to answer. Now what about all these other cases against Ms. Sizemore? There’s four counts in the one she’s being arraigned on alone, not to mention all the others which are trailing.”
Faulder said he wasn’t sure she was going to retain him on any of the other cases, and the whole passel of pending Sizemore-related headaches was set over for April 27th.