Mounting Evidence! Immanent Landslide!
by Bruce McEwen, April 20, 2016
I have heard many a pretty argument by many a fancy lawyer.
— Gerry Spence
The original Sheriff’s Office Press Release from last year:
ON JULY 19, 2015 the Mendocino County Sheriff's Office was contacted by the owners of the Long Valley Market in Laytonville. They reported that the market had been the victim of embezzlement at the hands of an employee. The owners further reported they suspected the embezzlement had been occurring for approximately 7 years. The case was assigned to the Mendocino County Sheriff's Detectives Bureau for investigation. Detectives identified the suspect as Christine Kelsay, 33 years of age, from Willits. Detectives obtained probable cause and authored 9 separate search warrants for the suspect's residence, three different banking institutions, an internet service provider seeking banking, financial, and electronic evidence of the reported criminal activity. After a four month investigation Detectives presented a case to the Mendocino County District Attorney's Office alleging the suspect embezzled in excess of $450,000 dollars over a six year time frame. The District Attorney subsequently filed a criminal complaint, seeking an arrest warrant for the suspect. On June 4, 2015 at 7:00 AM Detectives arrived at the suspect's residence and placed her into custody without incident. She was transported and booked into the Mendocino County Jail related to a felony warrant, charging her with embezzlement, grand theft, a special allegation of aggravated theft (white collar crime) and a second special allegation of theft in excess of $200,000. She was lodged into the Mendocino County Jail and her bail was set at $50,000.
At the preliminary hearing for Christine Kelsay, accused of embezzling half a mil from Geiger’s Long Valley Market in Laytonville, the evidence was sufficiently suspicious to hold her over for trial.
Sufficiently suspicious is an understatement, by the way.
In fact, the evidence was overwhelming.
So why did this case ever go to trial?
To answer that one, I’ll need the help of the greatest trial lawyer of recent times — no, not Clarence Darrow, of the famous Scopes “monkey trial” — but Gerry Spence:
“Tell me, Mr. Spence, did you ever represent someone you knew to be guilty?”
“Interesting that you should ask such a question. If I answer yes, I’m adjudged a scoundrel; if I answer no you think I’m a liar.”
“That was a very clever answer.”
“Let me ask you a question. When you see your doctor, does your doctor ask if your illness is a result of committing a crime?”
“You’re getting cute on me.”
“But you’ll admit you have a right to being treated without being judged by the doctor?”
“My client has rights as well. Until he is proven guilty beyond reasonable doubt by a jury he is presumed innocent. Most of us forget that — it has something to do with a stodgy old instrument called the Constitution.”
Gerry Spence of course won acquittals in cases where the whole world knew the defendant was guilty — Imelda Marcos, comes to mind, among many others. How did he do it? Well, first off, he knew how to pick a jury.
Keep in mind that our own “Gerry Spence” was the late Richard Petersen, who came to court in Tony Lamas boots and Stetsons and a string-tie, with the booming voice and silvery hair, much in the “buckskin chic” style Spence was celebrated for. Richard Petersen’s dead and buried, alas, but like Spence, Petersen passed the flambeau to his son.
Enter Justin Petersen, the man who will defend, as the Constitution guarantees, even the worst of the bad hats out there in Mendoland. For instance: The pending Kayla Chesser murder/rape (an utterly hopeless case)… And we won’t — out of professional courtesy —mention a couple of other hugely controversial cases he’s handling at present. The point is, any and every American deserves a fair trial, with a competent defense lawyer.
Mr. Petersen spent a lot of time and money in his jury selection, as any good trial lawyer will, and I noticed there were individuals in the courtroom taking notes. One note-taker was dressed casually and blended in with the jury pool crowd. As each juror was questioned during voir dire the notebook pages filled up, and Mr. Petersen was free to engage each potential juror one-on-one. Mostly, he wanted to ferret-out those who came with any prejudice toward his client, and there were a few who frankly blurted out that “No, if I were in Ms. Kelsay’s place I wouldn’t want me on the jury.”
Finally, late Tuesday, the jury was in place. District Attorney David Eyster who is personally prosecuting the case called his first witness, the owner of the Geiger’s Long Valley Market, Michael Braught, who told the jurors how he came to own the store by marrying Shannon Geiger, and took it over in 2000. In 2005, he built a new store behind the old one and tore the old one out to make a nice new parking lot. At this time he sought out and hired — or, rather, rehired — two women, Christine Kelsay and Abbe Arkelian, both of whom had worked at the store for Mr. Braught’s in-laws, Bernie and Judy Geiger.
By 2014, it was obvious that money was going missing. The figures weren't adding up, hadn’t been for a long while, and yet the proprietors couldn’t figure out what was wrong. Braught said so much money was disappearing that he was forced into a hiring and wage freeze. Then one day — January 9th 2015 — Abbe Arkelian spotted the first clue that led her to the discovery that her long-time friend Christine was stealing money from the store. A four-month long investigation ensued. Another accountant familiar with the kind of software in use at Geiger’s was brought in: Kerry Gillespie, owner of Long Valley Lumber in Laytonville and a friend of the Braughts; then Mr. Braught called another friend, Sheriff Tom Allman, and Detective Luis Espinoza joined the investigation.
All the evidence pointed to Christine Kelsay as the till tapper, and she was put on administrative leave.
Defense attorney Petersen asked Braught what his own duties were at the store.
“I’m the president.”
“Yes, but what do you actually do?”
“I walk around the store, make myself visible to customers, sometimes talk to friends.”
Petersen then asked how much he was paid.
“As president my salary is $250,000.”
“I get $16,000 a month for the lease of the building, to offset the building loan — two loans, actually.”
“Does it all go to the loan?”
“All but about a $1,000.”
“Any other income?”
“There is a distribution account posted for taxes. It varies from month-to-month, and comes out to from between $75,000 to $100,000 a year. We charge our groceries and it comes to about that.”
“So you’re making, approximately, before taxes, $250,000, plus $12,000, plus approximately $100,000 each year?”
“Yes, about that.”
Later when Ms. Gillespie was asked why she helped with the investigation for no pay, she said it was “because we work so hard for our money.”
During the prelim, Ms. Kelsay’s defense was marijuana. Like the 3,000 pairs of shoes Imelda Marcos had in her closet, Kelsay’s closet was full of new clothes and shoes, the kids all had the latest fashions, lots of hi-tech toys, new cars for mom and dad, tickets to the World Series, trips to Pittsburg to watch the Steelers — sure signs that she was living far beyond her means, which was an annual salary of $26,000 at the store as the manager of Accounts Payable. We have yet to see what the defense is going to be during the trial, but there has so far been no mention that Kelsay may have made extra income from marijuana, and the prying into Braught’s personal revenue seemed somewhat gratuitous.
The second witness was Abbe Arkelian. She described her long history with defendant Kelsay, having been friends from grade school on, taking their first jobs together at 14 and then Geiger’s. They also both worked at Savings Bank of Mendocino for a time, and finally back at Geiger’s. When she got to the part of her testimony where she first discovered the thief was Christine, Ms. Arkelian broke down and cried on the stand.
“Sit back and take a couple of really deep breaths,” Judge Ann Moorman told her. “We’ll resume when you’re ready. Take your time.”
The way the market system worked was the six cash registers at the checkout lines each started the commercial day with $500 in the till. When they would get close to $1500, a light would come on and a manager would come and take all the cash above $500, wrap a readout from the till around it and deposit it in the safe. The safe has two parts. The upper part contains smaller bills — ones, fives, tens, twenties — for replenishing the tills. The managers have access to the upper or top part. Then there’s a drop into the bottom, or lower part of the safe, to which the managers do not have access. This is where the hundreds and fifties go. The drop-box, it’s called.
The next work day, Ms. Arkelian or Ms. Kelsay would come in and open the drop-box, take out the bundles, enter the amounts into an Excel spreadsheet, which was then imported into another system called Business Works. The money was then put in a Chico bag and deposited in the Savings Bank of Mendocino. This was usually done by Ms. Arkelian, except on her days off and when she was out on maternity leave. What she discovered was that the money was being stolen on her days off.
“So you were having a liquidity problem?”
“Yes. We were having issues. Especially during the winter months. There were a multitude of things we were looking into.”
“You were trying to figure out where the problem was?”
“Correct. Then on December 17th we were having our annual open house. The Tom Allman Band was playing Christmas music and I went upstairs to the back office and pulled up the General Ledger, when I noticed an irregular Journal entry.”
“Something caught your eye?”
“Yes. And I turned to Michael and said, ‘Do you know anything about this?’ and he said, ‘No,’ so I was intending to ask Christine, but I took the next day off and then forgot.”
“Did you eventually ask her?”
“Yes, and when I did she said she knew nothing about it but would look into it.”
“What was the nature of the entry that caught your eye?”
“It was increasing what the customers owed us. But I hadn’t heard back from Christine, and I noticed one of those entries had been voided.”
“So, she’d been in there looking but she hadn’t reported back to you?”
“Correct. I thought, something’s not right here… So I went further in and found that the reports didn’t match.”
“Yes. I found, for example, that grocery sales were one figure and in Business Works the figure was something different.”
“One lump sum?”
“Yes, but it was spread throughout the different departments.”
“Did the amounts correspond to something?”
“Yes, to the cash pick-ups we couldn’t find.”
“Did you have those pick-up slips retained?”
“Yes. They were kept in a drawer next to Christine’s desk, and we couldn’t find the one that went with the missing amount.”
All the slips were missing, as it turned out. Only one was ever found, and it turned up at Ms. Kelsay’s house when Detective Espinoza appeared there with a search warrant. It was for $900. Also, the investigation, at the time, had only gone back to 2009. But this pick-up sheet was dated 2007. It was then they realized the pilfering had been going on a lot longer than anyone had thought. When Espinoza took the stand, he said that the total for the thefts at the time the search warrant was served was $388,223; after the pick-up slip was found a deeper dig turned up more thefts, 325 of ‘em, totaling $471,843.
“When you searched the defendant’s house did you find any sign of marijuana being grown?”
“Any sign of marijuana sales?”
“No, nothing like that at all.”
“What about trimming marijuana? Any sign of that kind of activity ever having taken place at the residence?”
“No, there wasn’t even any sign that anyone in the house even smoked or otherwise used marijuana at all.”
“Not even a hint of marijuana anywhere?”
On that note the first week of trial ended. It looked pretty bad, but it’s not over and it would be reckless to jump to any conclusions.
We all remember Imelda Marcos as the great villain, and Clarence Darrow as the great trial lawyer. What we forget is that Clarence Darrow lost the famous “monkey trial” and Imelda Marcos was found innocent of every single charge filed against her.