Drunk Lawyers, Doctors Who Kill
by Bruce McEwen, March 15, 2017
The sensational DUI trial of a lawyer for the Office of the Public Defender, Lindsay Peak, ended in a mistrial before we could cover the second week of testimony, so there’s a lot of catching up to do — especially since the rest of the local news outlets know how to keep quiet when lawyers get drunk and drive, and doctors murder their wives.
The given reason for the declaration of a mistrial in Ms. Peak’s case certainly seemed inadequate: A letter from the Attorney General’s Office admitting that a Department of Justice lab technician had screwed up the sequence on some blood samples back in 2012 had not been handed over to the defense. This was the given reason, even though the screw-up had been freely disclosed to the defense by the District Attorney.
It is difficult for a layman to see why the letter itself would be so crucial, but lawyers and judges are a quirky bunch and they delight in confounding the public with their legalistic Latinate phrases, proper noun-precedents (e.g., “he wasn’t Miranda’d”), and numerical codes (e.g., “I’ll be submitting a 14-b”). Judges also tell jurors that they are not to concern themselves with why certain objections are overruled and others are sustained. The arcane mysteries of law and medicine are what keep us in our places and in awe of Professional People, our betters (and helps keep their rates up).
So when a gentleman from the AG’s Office was seen having lunch with the witness who was on the stand that day, and defense asked why, all the jurors perked up their ears — but then the prosecutor objected to the relevance (which was practically oozing out of the question), and the judge sustained the objection and had the question stricken from the jury’s collective consciousness — in much the same way my aunt used to grab me by the ear and scrub my face with a burlap rag soaked in lye soap when I uttered a forbidden word or two.
The witness in question was Jyoti Malik, the lab technician who analyzed Ms. Peak’s blood sample. It was pretty much a given that defense attorney Peter Johnson was going to bring up the disclosed screw-up by Ms. Malik’s supervisor, Matthew Kirsten, and the AG guy was no doubt coaching her on how to handle it. So it was blatantly relevant — to a layman. But if the actual letter’s whereabouts seemed an inadequate technical basis (to a layman) to declare a mistrial, the testimony from Ms. Malik was more than enough.
What we learned from lab tech Malik was that as soon as she got the blood sample she immediately put it away in the Refrigerated Vault to preserve its freshness so she could get an accurate reading. The trouble was, it had been at room temperature or above for the past five days! (It was drawn the night of January 13th, Ms. Peak’s 25th birthday, and didn’t arrive at DOJ until the afternoon of January 19th.) Not only that, but the CHP officer who sent it to DOJ hadn’t signed-off on the log at the evidence locker — she merely handed it off to somebody named Coco (the officer couldn’t remember Coco’s last name, and she no longer works at the Ukiah field office, anyway) and that was it. All the other entries on the evidence locker log had the officer’s initials in the little box — but not Ms. Peak’s entry. This is the kind of technicality that even a layman can understand would be grounds for mistrial. But it wasn’t. Go figure.
It was plain to the jury that the defendant had gone to Cloverdale to celebrate her birthday — had she gone someplace in Ukiah a scandal of gossip would have ensued; it being more heinous a deviation of morality to go out for a drink in the current fastidious pretensions around the courthouse than it used to be in Mormon Utah. So, yes, she was probably guilty, but the law requires the DOJ to play by the rules, doesn’t it?
The point Mr. Johnson made was that blood samples often get contaminated with volatile organic compounds (VOCs) which ferment in the sample and increase the alcohol reading (hold your breath, reader, it’s a mouthful): when the technician puts it in the analysis machine, the Single Column Headspace Gas Chromatagraph, referred to affectionately as ‘The G-C,’ by the lab techs.
Ms. Peak’s experienced DUI attorney, Mr. Johnson, was intimate with the machine and the jargon concerning it. He knew not only their shop-talk about the inferiority of the Single Column GC (Thanks, Guv!), but was widely read in the minutiae of the discipline, and he could readily trip-up a grad student from the University of Calcutta, India. And this he did several times, although the judge and prosecutor made a running battle of it, with Deputy DA Barry Shapiro giving sightings and ranges, and the judge zeroing-in. They shot the blood expert down on every point, but my what a pleasure it was watching those grossly remunerated DOJ bureaucrats squirm on the stand as a really — really! — good lawyer grilled them to perfection. Shapiro tried to make a ludicrous issue that the defense experts were being paid (OMG!) but it was too obvious that the DOJ team were the ones overpaid, and enjoying a sumptuous expense account, staying at the best hotels, dining at Ukiah’s primo watering hole Patrona; nothing but the best for our upper echelon bureaucrats.
But Shapiro’s point fell flat — that the defense blood analysis expert was working for pay — when the expert told the jurors that Ms. Peak had run out of money and he was testifying for free. This was not what Shapiro wanted to hear so he objected and Judge Moorman sustained him; then she ordered the jurors to disregard the statement. Shapiro was angry now and demanded to know how much had already been paid to him. Moorman sided with Shapiro, and ordered the expert to disclose his usual fee: $2500. The DOJ experts were not subjected to this indignity regarding their salaries.
Out in the hallway, during breaks in the trial, spectators were often heard complaining that the defense lawyer was losing the jurors because the Q&A had become too technical. “He’s making that guy squirm, alright, and he makes some good points, but did you see the faces of the jurors? They’re feeling sorry for that poor guy!”
Other experts waiting their turn on the stand would gulp like condemned men when they overheard these comments.
“It’s gotten too technical,” another spectator opined. “He’s right — they [DOJ] screwed up — but he’s putting the jury to sleep. All the big words and articles in scientific journals just bores ‘em to death.”
Here’s a sample:
Johnson: “You’re saying your method of using the single column headspace gas chromatagraph is approved by Title 17?”
Johnson: “Can you point to any authority, even one journal treatise, that says a single column method is a scientifically appropriate method?”
Malik: “I’ve read several articles that state that. Right now I don’t recall the name of the journal, but I can submit it to the court.”
Johnson: “Are you aware that the American Board of Toxicology Laboratories do not approve it?”
Johnson: “Are you aware the Society of Toxicology doesn’t approve it either?”
It got worse….
Malik: “I don’t believe they specifically state that you have to use a double column, and my laboratory is accredited by them.”
Johnson: “But they do make recommendations, don’t they?”
Malik: “Correct. Again, if there were any issues with the single column we wouldn’t be accredited.”
Johnson: “Weren’t you in training in January of 2016?”
Malik: “No, I was an analyst.”
Johnson: “How do you calculate your uncertainty range?”
Malik: “When you calculate in all the factors you get a 99.7 percent confidence range which leaves 0.3 percent uncertainty range."
Johnson: “And you detect the ethanol by the retention time?”
Johnson: “You use a hand-held pipette?”
Johnson: “And how much does it hold?”
Malik: “.25 milliliters.”
Johnson: “You heat that up and the headspace fills with gas?”
Johnson: “And another gas, nitrogen, pushes that gas into the column?”
And on and on, a kind of arcane scientific waterboarding.
Judge Moorman eventually explained to the jurors that lawyers were fond of and allowed to use hypotheticals and Johnson launched into his. It involved scientific studies, calibration times and standards in the scientific community. He read from a book about a machine called the Adjutant Technologies 6850, concerning bar summary forms, bake-outs, K-factors and maintenance schedules. The defense table was awash in a high tide of yellow legal pads with the pages curled back. Johnson would fish one out, read a technical question, toss it aside, snap up the next one and pop another question. It was truly impressive.
The following day, Mr. Matthew Kirsten, Ms. Malik’s boss, took his turn on the stand and it was not pretty — for Kirsten. He had to admit his blunder in 2012, and go over all the unpleasant details therein; then he had to try and explain away why the hard drive in the computer had been erased of all data concerning this particular case. Then Johnson got to Kirsten’s own lab work.
Johnson: “So in 2012 you mixed up some samples?”
Kirsten: “Yes, sir.”
Johnson: “And this was because of your method, which also risks cross-contamination, does it not?”
Kirsten: “I’m not concerned about that.”
Johnson: “You’re not personally concerned?”
Johnson: “There’s a remedy for that?”
Johnson: “Did you talk to Ms. Malik about that?”
Johnson: “So you don’t know if this occurred, do you?”
Kirsten (having sorted through a stack of paperwork before him on the stand): “Yes, here it is. Ms. Malik did check for that.”
Johnson: “She did?”
Kirsten: “Yes, and they were in the proper sequence.”
Johnson: “She’s in there by herself — does that surprise you?”
Kirsten: “No sir, it does not. All the vials were shown to be in the correct spot by checking the sequence.”
Johnson: “You did the retrograde extrapolation?”
Kirsten: “That’s correct.”
Johnson: “Isn’t it true that the experts all agree it’s a dubious practice.”
Kirsten (alarmingly red-faced, spluttering his answer): “No…!”
Johnson (holding up a Biblical-looking tome): “Do you recognize this?”
Kirsten: “Yes I do.”
Johnson: “And you agree that this study is relied on by scientists in the field?”
Kirsten: “It is.”
Johnson read a paragraph which said in no uncertain terms that the retrograde extrapolation was a highly dubious practice. He then went on to point out that there is a high a middle and a low in these hypothetical extrapolations, and that when it came to choosing, Kirsten had in each case chosen the highest, most incriminating numbers, along with the lowest time, to get at Ms. Peak’s peak alcohol absorption. Johnson also brought up the policy of having CHP officers take their time so as to increase the absorption when the blood is drawn — four hours in Ms. Peak’s case. Then — just to get on Shapiro’s and Moorman’s bad side, he suggested that since the defendant was a defense lawyer, a public defender who did a lot of DUI defense work, that he, Mr. Kirsten, would find her conviction particularly satisfactory.
Shapiro: “Objection! That is totally irrelevant!
Sure it is.
Moorman: “Objection sustained!”
* * *
In the end, Judge Ann Moorman granted a mistrial in the case, but the case had already gone to the jury, and the jury sent notice that a verdict had been reached.
As the jurors filed in, after a mere two hours of deliberation, with two unanimous guilty verdicts, the judge bade the jury foreperson to hold her peace — not breathe a word of the verdict, because her Honor was ruling it a mistrial, verdict moot, thank you so very much for your time and patience through this grueling ordeal. The jury was sent home after several days of trial and testimony that was technical and dense. And the taxpayers were out wasted thousands of dollars trying to punish a person who had broken the law, a serious law, driving under the influence.
The mistrial apparently was due to a report DA David Eyster released to defense counsel Peter Johnson about Matthew Kirsten, the senior analyst at the Department of Justice laboratory in Eureka switching blood samples out of sequence back in 2012. Due to the time honored governmental policy of promoting fuckups to get ‘em out of harm’s way, Kirsten advanced to the supervisorial stratosphere at the Department of Justice:
The motion, according to DA Eyster — whom this reporter spoke with around the close of business on Thursday after the mistrial was declared — seemed to think Judge Moorman granted the motion because of a failure to not only supply the information about the mix-up with the blood samples, but to provide the Defense with the original letter of acknowledgement of the blunder, if it was one, from the Department of Justice office in Eureka. Eyster’s opinion was that Her Honor — whose opinions he worships — could have handled it differently. He suggested she could have asked for the verdict first (in case it was not guilty), and then (if it was guilty) gone ahead and ruled on the defense motion for a mistrial. The DA already knew the verdict, so maybe the judge did, too. I had to be told.
No word from the DA if public defender Lovely Lindsay will be re-tried. But given the apparent, but undelivered guilty verdict, we suspect it will be retried and the entire wasteful drill will have to be repeated.
In other courthouse news:
Gabriel Ramon Campos was on for a jury trial last week and just before it started Judge John Behnke asked prosecutor Scott McMenomey what Mr. Campos was looking at in the event he was found guilty of the charges, which were second degree robbery. Deputy DA McMenomey said that since Campos had two strike-priors, among other convictions, he would be exposed to a aggregate sentence of 35 years to life in State prison. Judge Behnke turned to Mr. Dewan of the Office of the Public Defender, and asked if McMenomey's numbers comported with his own; Mr. Dewan said they did. The judge turned back to McMenomey and asked if there was any hope of a disposition. McMenomey said he was reluctant to see Mr. Campos face such a stiff sentence and if he would take the plea deal for four years, he would be satisfied with that. The judge asked Campos if he understood. Campos said he did. Did he wish to avail himself of the offer or go forward with the trial? Go forward, Campos said, bravely. Judge Behnke asked if he was sure. He said he was. Behnke said, "Okay. But I'm going to give you 10 more minutes to talk this over with your lawyer before I call the jurors up here to start jury selection. After the 10 minutes were up, Mr. Dewan had prevailed and Campos took the four years instead of the trial.
* * *
Joshua Admire turned himself into the jail on January 6th, as per his agreement with the court for a violation of his probation. It was 4:30 in the afternoon and Deputy Christian Denton had just arrived from the North Coast with prisoner sent over from the Ten Mile Court to serve a sentence. As Deputy Denton was unloading his prisoner, the Corrections Officer, checking Admire in, opened the door to the Frisking Parlor (officially called Intake Room, where they do the strip searches) and, holding up a small bag, called out to Denton saying, “Hey, I got something for you!”
Corrections Officer Siderakus had just found a forty-sack (a dose of meth that typically sells for two twenty-dollar bills, approximately 0.50 -.75 grams) on Mr. Admire. Denton postponed getting his prisoner booked in to deal with charging Admire with a new felony, smuggling drugs into the jail.
Mr. Admire’s lawyer, Lewis Finch of the Office of the Alternate Public Defender, asked Deputy Denton, “Did you speak to my client?”
Denton: “I did. He was very upset, as I recall, when I advised him it was a felony offence to smuggle controlled substances into the jail.”
Finch: “He was upset because he didn’t know he had it on him, wasn’t he?”
Denton: “That’s what he said, yes.”
Finch: “Where on his person was it found?”
Denton: “In his wallet.”
Finch: “But isn’t that one of the first things he provided to the jailers?”
Denton: “What? He didn’t provide anything. He was put up against the wall and searched.”
Finch: “Were you there?”
Finch: “So you don’t know where I the wallet it was found?”
Denton: “It doesn’t matter to me.”
Finch: “The first thing you did was have him put his hands on the wall?”
Denton: “I wasn’t even there. I was transporting another prisoner.”
Finch: “So you, uh… you didn’t see the search, then?”
Denton: “I did not.”
Finch: “I have no further questions, but the charge does require knowledge and I think it’s fairly apparent my client didn’t know the baggie was in his wallet and, …well, I’ll submit it on that.’
Judge Cindee Mayfield was convinced it was suspicious enough to hold Admire to answer — let a jury decide, that is, or cop a plea.
Finch’s boss, Alternate Defender Doug Rhoades — a widely experienced defense attorney and a mine of anecdotes told the bailiff (within my hearing) that he once had a client who got caught in the strip search with a bag of dope he’d apparently mistaken for a suppository.
Rhoades: “First words out of his mouth, I kid you not, was how did that get there?”
Half an hour later in a different courtroom a defendant had admitted to violating his probation by tweaking on meth, turning in a dirty urine specimen, and having a counterfeit $100 bill in his wallet. The defendant (I missed his name, shame on me) said he didn’t know the bill was counterfeit — and he looked like a man who had half a mind to look up whoever foisted it on him.
Our Priceless Mr. Rhoades had another anecdote, to be sure. He’d gone to his bank and withdrawn five $100 bills and taken them to another financial institution where one of ‘em was detected as counterfeit.
Rhoades said he returned it to the first bank and was told, “Sorry, you should have not accepted it.”
Then, just this morning, I saw a defendant take out his wallet and give five $100 bills to his lawyer to give to the DA’s Office. I could only wonder if the DA has a way of checking these things — I know I sure don’t!