Mistrial Declared

by Bruce McEwen, March 8, 2017

UPDATE: Moorman just granted a mistrial in Peak driving case. Document disclosure the issue. Jury had sent notice a verdict had been reached. But jurors sent home after mistrial declared. Not sure what verdict was. But it was quick, so usually that means conviction. –Bruce Anderson, March 9, 3:47 pm

Peak

The ongoing jury trial of Lindsay Peak for DUI has captured the fascination of the courthouse like no regional sporting event or locally filmed move could ever hope to emulate.

In terms of gripping entertainment the trial is both professional sport in that it pits two teams, the District Attorney’s Office against the Office of the Public Defender, and high drama. The emotionally charged substance of the evidence and the adversarial divisions between the two camps make this one a thriller.

The defendant, Lindsay Peak is the Darling of the Defense Bar. The prosecutor, Barry Shapiro, is the Cary Grant of the Courthouse. These two lawyers outshine any of the actors who recently turned out for the Oscars.

After two long days of grueling jury selection, the trial began on March 1st at 10am on the dot with Deputy DA Barry Shapiro’s opening statement. In a case like this it would hardly do to launch into the substance of the statement without lingering a sentence or two on Mr. Shapiro’s appearance, his stylish haircut, his black hair combed back in an abbreviated pompadour; the immaculate tailoring and superb fit of his black suit, the patent-leather shine on his black shoes; the pristine crispness of his white shirt; and the precisely knotted bend sinister necktie in navy stripes — my, what a figure he cut as he rose on this momentous occasion, and paced elegantly to the lectern, gripping it with both hands and greeting the jurors with formal solemnity.

“Ladies and gentlemen, this trial is about choices” —

“Objection!”

Defense attorney Peter Johnson (the state bar had been ransacked to find the best available DUI trial lawyer for this pivotal case) shot to his feet, his features contorted in indignation and outrage, and demonstrating from the get-go that every inch of progress would be hard-fought, every piddling little nit picked, and every possible obstruction put in the way.

Patiently, Judge Ann Moorman explained (re-explained, actually, since these instructions had already been given to the jurors) that the statements of the lawyers were not evidence, and then she overruled the objection and asked Mr. Johnson to please sit down.

“This trial is about choices,” Shapiro resumed. “The defendant in this case chose to drink to the point of impairment and then get in a motor vehicle and drive. You are going to hear evidence of that choice and how it resulted in a collision when her blood-alcohol level was at point one-five; and you will hear evidence that this was retested some time later and was still at point one forty-five. You are going to hear evidence that she chose to drive in this state of intoxication, which is nearly double the legal limit, and then I’m going to ask you to hold her accountable.”

At this point, the suave Shapiro, turned and pointed accusingly at Ms. Peak herself, seated demurely at the defense table in a pale sea-green cashmere sweater to off-set her shoulder-length dark red hair, and a wine-red (whether local pinot noir or French burgundy, I couldn’t tell) skirt with matching high-heels. She had a darling little tweed jacket that went with the outfit but hadn’t worn it to court, the weather being warm and sunny for a pleasant change after a lengthy fit of heavy rains.

Lovely Lindsay Peak, the Darling of the Defense Bar, smiled demurely back at her jurors.

The dapper Shapiro resumed.

“You will hear from civilian witnesses at the Fetzer vineyards. They were in the process of moving 13,000 gallons of wine from one tank to another when they heard a collision and ran to the crash site where they saw that a black BMW SUV had collided with a tree, and saw the defendant inside the vehicle. They will tell you how they smelled alcohol on the defendant and how she acted like she was under the influence. They will tell you how the defendant at first said she wasn’t driving the vehicle and later changed her story, that she was driving but that a white SUV had swerved into her lane and ran her off the road. They will also tell you that they never heard another vehicle, and when they told her to call the police or a tow truck to get her vehicle out of the roadway, she only shooed them away, and called a friend, instead.”

“Objection! There’s no proof she called a friend!”

“Overruled. He has a right to say what he thinks the evidence will show.”

“You will hear how when Officer Hoberg arrived on the scene the defendant’s SUV was still blocking the north-bound lane and that she smelled of alcohol, and that he found an open container of alcohol in the defendant’s vehicle. He then conducts a field sobriety test and the defendant exhibits six out of six clues of being under the influence, and you will hear how he determined that this was a solo vehicle collision. You will hear how he then goes to a helicopter launch pad to send the defendant to the hospital in Santa Rosa to clear her for injuries, and how she refuses to go and leaves the ambulance and gets into the patrol car and is then taken to Ukiah Valley Medical Center for a blood draw.”

Prosecutor Shapiro told the jury that other witnesses would be called, among them criminologists from the Eureka office of the Department of Justice, and how defense was intending to bring in experts of their own, and how he [Shapiro] would remind them [the jurors] of their [the defense experts] bias.

Then defense attorney Johnson got to his feet — a tall man, and not bad looking or poorly dressed, but nothing to compare in glamorous dazzle with his client, the lovely Lindsay Peak, or his adversary, the debonair Barry Shapiro.

“So,” Johnson began, “Counsel [Shapiro] is only telling you what he believes happened in this case. I believe my client was driving on Old River Road near the Fetzer Winery when another vehicle came swerving in and out of her lane, causing her to go off the shoulder of the road, hit a tree — which did considerable damage to her car — so violently that she ended up in the opposite lane of travel, disoriented and confused from the collision. I believe the evidence will show that these individuals working at the winery heard the accident, and when they got there they contacted my client; they did smell alcohol, but the significance of that is my client may have consumed alcoholic beverages, but what we will hear from the experts is about metabolism and how the body eliminates alcohol.”

In reference to the Fetzer workers telling Ms. Peak to call for assistance or a tow truck and being shooed away, Johnson explained, “She may have been disoriented. She’d just been in a traumatic accident — the air bag did in fact deploy. Now, when the police officer gets there my client tries to explain how she’s been in an accident and that she has a prescription for medications and the officer just assumes she’s on drugs or alcohol when all she meant was she had a prescription. She then tries to get the officer to investigate this other vehicle, the one that I believe ran her off the road, and he just ignores her, having assumed she was under the influence.”

There were other points, Johnson assured the jurors, which would preserve his client’s presumed innocence. The Standard Field Sobriety Test had not been administered properly, he said, in that Ms. Peak was lying on a backboard in the ambulance at the time, and the indications of inebriation, the six clues, could have been caused by a head injury. Then there was the blood draw, the chain of custody, how this had been fumbled.

Two or three times, Judge Moorman had to restrain Johnson from arguing his case, going beyond the parameters of the opening statement, which it seemed to this observer was somewhat more proscribed for defense than it had been for prosecution, sort of like an overly zealous referee who calls more fouls on one team than on the other. But this may have been my own tendency to sympathize with Ms. Peak’s reversal of circumstances.

In any case, these quibbles would be introduced much later on, in the second or third week of the trial, and were of no immediate concern, for this was to be a marathon of a trial, like a murder trial, or some other momentous crime — not to dismiss or deride the importance of a DUI, but only to keep it in perspective; and remember that the crucial thing at stake here was a lawyer’s career — not three-thousand-odd dollars in fines, a revoked driver’s license and two days in jail. And that is why the gallery started filling up with other lawyers, as soon as they finished dealing with their own cases, they filtered down to sit with riveted expressions, experiencing (one can only surmise) the intense emotions of “horror and pity,” as Aristotle described Tragedy.

And piteous it was, piteous indeed. The worst part was the audio and visual recording of Ms. Peak in the back of the patrol car, by turns chatting and crying with Officer Hoberg on her way to the hospital for the blood draw. The judge and lawyers had talked it over and decided that a certain part would have to be redacted. It was where Ms. Peak had complained bitterly about how she had to pay $1000 a month for a cramped little studio apartment when her friends in the Bay Area had a whole house for only $950. The she went on to say how she came to Ukiah for the job, from her hometown in Anaheim Hills.

Officer Hobard asked her how she liked Ukiah and she said she hated it.

“Ukiah is a horrible town, but it’s a rewarding job and I like the people. Can I have the handcuffs off now? They hurt my wrists, and I’m obviously not going anywhere.”

“No, they’ll have to stay on. Sorry, it’s our policy.”

“Policy” being the most universal dodge for eluding personal responsibility the world over, and I couldn’t agree more with Ms. Peak’s abhorrence of the local rent prices or her estimation of Ukiah’s pretensions to aesthetics. But Judge Moorman ruled the statements had to be taken out because the probative value would be outweighed by the prejudice it would foment in the jurors. I can put that in the paper, because the jurors are forbidden to read about the case or talk to anyone about it — especially a reporter. And it’s about time the landlords heard the truth about local rents, and the pretentious shills at the Main Street Association were disillusioned about Ukiah being “Not Just A Pretty Place.” Not that I would hold up a paved-over, over-built hellhole like Anaheim Hills as some vastly superior alternative! But one’s fondness for a hometown can be expected, if not forgiven, and maybe that’s why the judge had these criticisms blanked-out of the recording.

The probative value of the rest, in Shapiro’s opinion, was the weepy-voiced behavior of Ms. Peak as she realized she was being arrested and her assertions that someone had run her off the road were being ignored. It was hard to understand with all the background noise, but the jurors were given printed transcripts to read along with the recording — whereas the press was not. (The press is in disgrace these days, ever since the election last fall, and even though I’ve started wearing a tie to work, it’s no easy thing to maintain the dignity of the Fourth Estate.)

Ms. Peak started out forcefully enough, although her voice did crack and break when she said she worked for the County as a public defender “…at least I did [sob]. I want everyone’s names. I’ve explained the situation and understand your position, but I still …I want the names of the two witnesses and their contact information. There was a small car weaving in and out of my lane …and how can you get my blood? What is the evidence you’re going forward on? It seems pointless.”

“I wouldn’t want to arrest someone wrongly.”

“So I’m being arrested?”

“Umhumm.”

“You’re arresting me?”

“That’s correct.”

“But what about the people who were in my lane?”

“I’m taking your purse and phone and putting them in here, see?”

Radio traffic made it unintelligible, but there was something about what would happen to her car and a dog in her apartment that needed to be checked up on. Officer Hobart tells her he’ll take care of it right now and there’s more radio traffic, then the engine starts and a roar ensues blotting out most of the conversation all the way from just north of Cloverdale to UVMC in Ukiah.

It was just after lunch and the gallery started filling up with lawyers and judges who had finished their work for the day. The weepy, plaintive voice of Ms. Peak came over the roar of the engine and the camera showed her starkly in the back seat, washed out and ghost-like in the colorless night-vision video. The only thing she said of interest had been redacted; the rest just went to show a frightened young woman at an unhappy turning point, caught in a reversal of circumstances, a Peripety.

* Peripeteia is a reversal of circumstances, or turning point. The term is primarily used with reference to works of literature. The Anglicized form of peripeteia is peripety.

15 Responses to Mistrial Declared

  1. Alice Chouteau Reply

    March 8, 2017 at 9:41 am

    Thanks Bruce–great story. Can’t wait to see the movie version…

  2. John Sakowicz Reply

    March 8, 2017 at 9:31 pm

    nice reporting

  3. Randy Burke Reply

    March 9, 2017 at 10:22 am

    You are wearing a tie nowadays? What is Anderson Valley coming to?

  4. izzy Reply

    March 10, 2017 at 7:48 am

    Well, she was coherent enough to make a realistic evaluation of Ukiah.
    On the other hand, it sometimes requires a little lubrication to blurt out such an observation.

    • Bruce McEwen Reply

      March 11, 2017 at 8:16 pm

      And, yes, you couldn’t help but wonder… was this proof she’d been drinking?

      Herein lies the sophistry of the State’s case, to my mind. Anyone dares sass those to whom tehy beholden gotta be like drunk, dude!

  5. Misha Reply

    March 10, 2017 at 11:34 am

    Typical AVA. It never ceases to amaze me how the incredible dull and deeply bored journalists of Anderson Valley grasp frantically for news. One woman’s misfortune, and an unresolved trial, are less than newsworthy. Compounded with Frankenstein’ed quotes, I see little truth value in this piece.
    And if we can excuse all that, which we can’t, the actual literary value is absurd. It seems the only descriptors you can lend to the defendent describe her vocal qualities. Surely, given her court experience, she had something else to contribute besides whining and sobbing? And I assure you, Mr. Shapiro is many things, but ‘dapper’ or ‘suave’ would not be my first impulse. Find an imagination.
    On one last point, though certainly there are more to cover, your use of perepetia is forced at best. Perepetia is a reversal of circumstance, from fortune to ill fate, but I assure you no such thing has occurred. Business as always continues, amid a minor setback, and no lives have been ruined this day.
    I leave with this parting advice; never blame circumstance for your own situation. We are all self made men and women, for better or for worse. You didn’t need the new election to put you in disgrace, nor will wearing a tie help your case. Your track record of bullshit stories, bogus quotes, and overall poor journalism does that for you.

    • Bruce McEwen Reply

      March 10, 2017 at 12:40 pm

      Two things, Misha.

      First, your free advice is over-priced. Even when I factor in the realization that you paid me — through you subscription to this page — to give it, it still costs more (your exasperating tone of victimization alone renders it more costly) than it’s worth.

      Second, learn to spell a word before you lecture on its use. It will vastly improve your credibility.

      • Misha Reply

        March 10, 2017 at 2:09 pm

        Fair point on the spelling. Mea culpa.

      • Dylan Reply

        March 10, 2017 at 10:47 pm

        Ah, the old “learn how to spell” method of attacking someone’s comment–as though your knowledge of spelling somehow vaunts you above everyone else and proves your pitiable level of self worth. As to Misha, pay no heed to those who try to play never-ending games of oneupsmanship. As to Bruce, your buffoonery is transparent at best. I’m sure Hearst would have paid top dollar for your yellow journalism back in the day, thankfully however you are now relegated to this. I’m curious, were you actually trying to write facts in what is clearly a highly stylized opinion piece?

        Bruce, I welcome the lame and pitiful attack my comment will bring. I’m certain it will no doubt make me yawn, and will be something I can use as toilet paper.

        Dylan

        PS: Bruce, when you attack someone for misspelling something, and then say “through YOU subscription to this page,” it knocks down your credibility even more.

        • Bruce McEwen Reply

          March 11, 2017 at 7:37 am

          1. You have no business giving Misha advice, Dylan. She at least knows the difference between a spelling error and a typographical one.

          2. Hearst did in fact pay my ancestor, Arthur McEwen, top dollar. Old Uncle Art was Editor at the Examiner. Yellow journalism runs in the family, you see. I hope that satisfies your curiosity. Now maybe you’ll do as much for mine — do you really wipe your butt on your hand-held device? Or your computer screen? If so, maybe that’s what makes you wrinkle your nose at everything you read on it.

          • Misha Reply

            March 18, 2017 at 3:23 am

            You’ll forgive my tardiness to the party, I honestly forgot this whole conversation..
            1. HE was letting the journalist slink away with some form of pride left, not conceding. Attacking an argument for its spelling should have given you the sign to get out while you were ahead. But coming back, admonishing my knight in shining armor Dylan for not knowing the difference between a spelling error and a typographical error(shortened to typo, the keyboard version of spelling error) was feeble at best.
            While I have no doubt that your Uncle Art was an outstanding journalist, I have seen no conclusive evidence that journalism is a genetic trait; on the contrary, if your uncle was a good one, it most certaintly can’t be.
            PS Back when news was news, it was on paper. I believe Dylan was referencing that time, though I forgive your ignorance on the matter; I know you have since moved on from true news.

  6. Aequitas omnibus Reply

    March 10, 2017 at 3:41 pm

    The DA wastes resources by hiding a letter written by the Attorney General to Eyster proving DOJ gave false results for two individuals and four toxicology reports from the blood alcohol analysis program signed under penalty of trial perjury by Matthew Kristen

    • Bruce McEwen Reply

      March 10, 2017 at 7:20 pm

      Check your spelling on the DOJ officer, O Omniscient One. Defense Atty. Johnson asked Mr. Kirsten’s underling, Ms. Jyoti Malak, the technician who ran the tests, why she was having lunch with the gent from the AG’s Office and the jury’s collective ears perked up smartly — but then when the sharp-dressed Deputy Shapiro objected, the judge sustained the notion that it was indeed irrelevant.

      “C’est la vie,” say the French.

      I wish I could say, “You be the judge,” waive my magic lash, say Behold! and make you one. Alas, it’s not really in my power to make judges. Lo, you’ll just have to live with the Hon. Ann Moorman’s rulings, O Omniscient One.

  7. Harvey Reading Reply

    March 11, 2017 at 9:32 am

    Well, well, well. Cross the yuppies, pay the price, sort of, even in the never-never land of Mendocino County. I find Mr. McEwen’s prose to be well-written, with just the right amount of humor and sarcasm. He’s good at what he does for a living. That does not mean that I agree with his every response to my comments …

    Good piece.

    • Bruce McEwen Reply

      March 11, 2017 at 7:35 pm

      Spoken like a man w/ an open mind (that rarest of wights), not too ornery to consider a change, w/-in reason, maybe, eh?

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