He At Least Shows Up
by Bruce McEwen, May 24, 2017
It’s not all knitting class and poetry readings in the misdemeanor court, or so I was told, so during what proved to be a painfully slow news week, I went to see for myself; and, sure enough, the woman seated next to me was crocheting — not knitting — whereas Judge Keith Faulder only read one poem, which could be could construed as relevant to low-level crime, because it was about the victimization of a kite.
A KITE IS A VICTIM
by Leonard Cohen
From: The Spice-Box of Earth
A kite is a victim you are sure of.
You love it because it pulls
gentle enough to call you master,
strong enough to call you fool;
because it lives
like a desperate trained falcon
in the high sweet air,
and you can always haul it down
to tame it in your drawer.
A kite is a fish you have already caught
in a pool where no fish come,
so you play him carefully and long,
and hope he won’t give up,
or the wind die down.
A kite is the last poem you’ve written,
so you give it to the wind,
but you don’t let it go
until someone finds you
something else to do.
A kite is a contract of glory
that must be made with the sun,
so make friends with the field
the river and the wind,
then you pray the whole cold night before,
under the travelling cordless moon,
to make you worthy and lyric and pure.
* * *
I went in early because I had heard that the crowds were abominable at this wildly popular courtroom — a humongous increase in misdemeanors has resulted from Propositions 47 & 64 which reduce possession of methamphetamine and cultivation of marijuana to misdemeanors (the two most common drugs in the country, if not the world) — and I had just claimed a good seat when the judge came out and summoned me into his chambers. I left my notebook and trilby on my chair to mark my place and headed for the office amid a chorus of murmurs of gloom and doom form the bailiffs (a dirge that hasn’t been heard since Hector went out the gates of Troy to face Ajax in one-on-one combat).
His Honor ushered me into a wing chair and he took the one matching it, both in front of his desk, with a chess table in between, on which was scattered a few books and magazines (presumably for those who would be so bored in front of the judge that they would prefer to read, rather than listen to admonishments) one of which was the late Leonard Cohen’s book of poetry — and, since I made a fuss over it, His Honor couldn’t resist reading the one above.
His Honor then told me I’d come on a very slow day and would probably find the proceedings dull and unworthy of print.
“A math class,” he called it, “figuring out how much people owe on their fines, and what can be done to make them pay.”
I replied to the effect that it would at least, in any case, give an eager readership some tantalizing glimpse into how the newly minted judge was doing. (He had mentioned the week before that I could at the least say that he at least showed up every day.)
Back out in the courtroom a woman had taken up the chair next to mine and was busy with her yarn and needles.
“Oh, you’re a knitter?”
“Oh no, it’s crochet. See? Only one needle.”
“Ah, I see.”
I had just settled back in with my notebook on one knee, my trilby on the other.
“All rise…” Bailiff James Scroggins ordered. “The Superior Court of the State of California is now in session, the Honorable Keith Faulder presiding. Please be seated and come to order.”
“Good morning, Ladies and Gentlemen, and welcome to the misdemeanor court.”
“Good morning, your honor,” replied Lindsay Peak, the Darling of the Defense Bar (who recently had her DUI tossed out of court for obscure technicalities), in two-part harmony with Deputy DA Brian Morimune, a deacon in the old-school faith of law and order, who stood at attention before prosecution’s table in a plain dark business suit, no-nonsense shoes, and — lest his straight and narrow necktie should have the temerity to veer from strict probity, it was arrested by a tieclip engraved in Latin: Experto crede. (Trust the expert.)
The comely Ms. Peak, by way of contrast, sprawled languorously at the defense table, dressed in two shades of green, a Kelly green skirt and sea-green blouse with matching high-heels, to offset her long, dark red hair (behind which emerald earrings occasionally peeked out and winked at the more studious observer).
Mendocino County so abounds in oddities that Fort Bragg has made it a slogan (A Fort Bragg Oddity is a popular tee-shirt sold to tourists on the Coast), and Judge Faulder is no exception to the rule, though he is exceptionally odd in that he has installed a platform that raises his Bench (the elevated desk behind which a judge usually sits to preside over a court) even higher, and he doesn’t sit at all, but rather stands behind this fixture and conducts the proceedings on his feet. This singularity His Honor has perfected into a kind of performance art, or dance.
The door was opening and shutting constantly, and this amount of use had so worn the hinges that the door groaned painfully each time as people constantly came and went. Every time the door opened, the commotion from the hallway overwhelmed what was being said in the courtroom and it was damned hard to hear everything. I did hear the bailiffs comment on how today was unusually slow, even though the place was packed, standing room only, and overflowing into the hall.
His Honor called the case of Patrick Burns and a call went out for his lawyer, Linda McNeil, the redoubtable Willits DUI specialist. She was found and stepped in to say her client was present and ready to enter a plea.
But now the prosecutor, DDA Luke Oakley, had to be found, so the case was passed over and — wait-wait, don’t tell me: Here he is.
“Your honor,” Oakley said, “The offer of a wet reckless has been withdrawn.”
(A “wet reckless” is sort of a watered down DUI with fewer penalties and the possibility of your driver’s license not being suspended if you agree to certain requirements.)
“Ms. McNeil, you heard what counsel said, I trust; how do you wish to proceed?”
“Your honor, my client, doesn’t want to go forward with the jury trial. I would like to submit to the court this DUI waiver of rights and plea form.”
Faulder: “What then, Mr. Burns, is your plea to a violation of 23152 of the Vehicle Code?”
Burns: “No contest, your honor.”
Faulder: “In that case, I’ll place Mr. Burns on 36 months of probation. What, may I ask, was the blood alcohol level?”
Oakley: “It was point oh nine five (.095), your honor.”
Faulder: “And I’ll order he serve 48 hours in jail.”
McNeil: “Because it was being offered as a wet reckless, we would ask that the 48 hours in custody be waived.”
Oakley: “A .095 is an incredibly high blood alcohol level, your honor, and this is only one of the reasons the wet reckless offer was withdrawn.”
Faulder: “I’m not going to do that [waive the 48 hours], due to the incredibly high blood alcohol level.”
There was too much commotion to hear all the fines and fees, but it was close to or over $3000 and Ms. McNeil’s fee was probably as much or more as well, not to mention the cost of the first offender DUI classes, the probation charges, the towing and storage costs, the steep rise in insurance premiums, the missed work due to jail time, the trouble and expense of finding a ride to work during the license suspension, the loss of your job if it entailed driving, the endless I-told-you-so recriminations from all your friends and family, the humiliation and inconvenience of riding the bus, the loss of self-respect, the grounds for divorce (a drinking problem), loss of custody or even visitation rights (child endangerment), the ensuing depression, the pain and horror of suicide, the astronomical funeral expenses…
His Honor called Thomas More. Astoundingly, DDA Morimune — for all his righteous rectitude — had no information on this guy, which struck me as odd indeed, for wasn’t Sir Thomas More the fellow who went to the scaffold for his convictions asking the executioner as he stumbled with weak knees up the steps? "See me safe up: for in my coming down, I can shift for myself."…?
His Honor had the name dropped from the calendar, since Sir Thomas didn’t appear to be present. Maybe someone gave him a heads-up: What happens is, the jail being overcrowded, these guys get kicked out early with no explanation and, thinking the court must have screwed up their case and therefore owes ‘em something, they put their names on calendar to come in and sue for filthy lucre in recompense. But the judge will say, “Wait a minute — aren’t you supposed to be in jail…?” Then they get sent back to the slammer, and soon regret their cupidity and stupidity.
I later checked the calendar and it was Thomas Wayne Moore, penned in at the bottom, in ballpoint ink. My mistake.
Patrick Bowen was called.
Lindsay Peak fielded this one, scooting her chair back and reaching across the void between to hand Brian Morimune a proof of Mr. Bowen’s promise to sober up. His name was dropped from the calendar.
Crystal Charles was called. This proved to be my neighbor with the crochet needle and ball of yarn, along with sundry other gear arrayed around her chair. Was that a kitten in her hand-basket? Hard to tell with all the noise and confusion.
Ms. Charles asked His Honor to extend her turn-in date at the jail. She said, “I’ve been accepted at Friendship House [a rehab facility in San Francisco].”
“Did you bring any proof?”
“Uhmm… lemme check…’
As she was sorting through her paperwork, a youth came in and asked me if anyone was sitting in Ms. Charles’s chair, which was still festooned with all her stuff, her crochet project most prominently on the seat of the chair. I looked down at these arrangements and back at the young fellow, lifting an eyebrow at him in the traditional manner of asking if he was blind or just plain stupid.
He said, “Fuck you, Dude,” and went and sat elsewhere — someone else having recklessly abandoned their seat.
Ms. Charles had no proof.
Faulder: “Come back with proof and I’ll reconsider your request to reschedule.”
Adele Wagner was called, and her lawyer Patrick Pekin appeared for her saying she was seeing her therapist today and couldn’t accommodate His Honor with an appearance in person. She’d been ordered to a 52 week course in Anger Management, but had gone to Florida instead, and joined a program more to her liking, in — not defiance, but a wee adjustment — of a court order. Morimune intoned, "I seriously doubt whether Deputy DA Barry Shapiro, whose case this is, would ever agree to Ms. Wagner’s change of plans. How do we know that this out-of-state program fulfills the requirements of the anger management class she was ordered to complete?”
Faulder: “Mr. Pekin, we’re putting this off until you can come back with proof that this [the new program] is adequate to address the domestic violence issues your client is charged with.”
Pekin: “I understand and agree, your honor. Would June 8th be soon enough? I’ll have to send to Florida and get the required proofs, and it could take a while.”
Faulder: “That’ll be fine. Calling the case of Robert Andrew Marek.”
An attorney unknown to me stood and mumbled his name, saying he would enter not guilty pleas to all counts and set the case for jury trial on July 31st.
Richard Lopez was called on an old case from 2010, driving without a license.
Faulder: “Do you have one now?”
Lopez: “I’m working on it, your honor.”
Faulder: “Do you think you can get one in 60 days?”
Lopez: “I hope so…”
Faulder: “I do too, Mr. Lopez. But I need you to tell me what you are going to do to about it.”
Lopez: “Whaddaya mean?”
Faulder: “Are you going to like try?”
Lopez: “—Yeah-yeah! Sure, I’ll try.”
Faulder: “Then come back with either a license or a lawyer in 30 days. Calling the case of Kristina McLaughlin.”
Faulder: “A 12500 misdemeanor warrant was issued last August when she failed to appear after signing a promise to do so. I’m going to reduce it to an infraction and turn it over to collections. Margaret Padroni?”
“Here I am, your honor.”
“Good morning, Ms. Padroni, and congratulations, I’m going to grant your request for an early termination of your probation. You are very welcome, and thank you, too; keep up the good work. What about Ms. Brandy Tolman, is she here?”
She didn’t appear to be, but there was a lot of confusion in the milling crowd.
Stolid Morimune intoned his resolute implacability towards Ms. Tolman.
“She has not completed the terms of her deferred entry of judgment [DEJ].”
Vivacious as a spry breeze, Ms. Peak asserted, “Your honor, she passed in flying colors, but it turned out to be the wrong class. Now, all she needs is an extension and new review date, so she cant get into the right class.”
Faulder: “What I’m missing is — what would that accomplish?”
Peak: “It wasn’t her fault the counseling wasn’t adequate, your honor.”
Faulder: “I’ll only put it over for two weeks to show she’s participating in an adequate program. That’s all I have on the nine o’clock calendar. We’ll be in recess until 9:30, I have to give the staff a break.”
It was utter chaos after that, so I went up to Judge Behnke’s court where a nice quiet prelim was underway in an otherwise empty courtroom, about an incident in a funeral parlor where some guy shoved his sister through a window, as their father lie nearby in his casket, oblivious to the disturbance.
As for Judge Faulder: He at least shows up!
* * *
Marcus Sloan was accused of pushing his sister, a Ms. Anderson, through a window, what’s called a side-light, a panel of glass set in the wall next to an exterior door. Another sibling, Burt Sloan, had also been somehow involved in the incident.
Officer Bennett of the Willits Police was on the stand when I came in, and Jonathan Opet of the Office of the Public Defender was cross-examining him.
Opet: “It there any closed-circuit TV monitoring at the Mortuary?”
Deputy DA Scott McMenomey: “Objection. Assumes facts not in evidence.”
(Deputy DA McMenomey hadn’t asked about any CCTV on direct.)
Judge John Behnke: “Sustained.”
Opet: “Were there any employees of the mortuary watching when the incident occurred?”
McMenomey: “Same objection.”
Opet: “Your honor, an employee did observe a video of the incident.”
Behnke: “On the basis of the evidence thus far, you’d have to make an offer of proof.”
Opet: “Did Ms. Anderson tell you if she had said anything to Burt Sloan?”
Bennett: “I don’t recall.”
Opet: “Did you ask Ms. Anderson if she carried any type of weapon?”
Bennett: “I don’t think I did.”
Opet: “Did you search Ms. Anderson?”
Bennett: “If I did, I don’t recall it.”
Opet: “Those are all my questions.”
McMenomey: “Did you see Marcus Sloan?”
Bennett: “I did.”
McMEnomey: “Do you see him in the courtroom today?”
Bennett: “That’s him seated at the defense table in a white shirt.”
McMenomey: “May the record reflect the witness has identified the defendant?”
Behnke: “He has.”
McMenomey: “Did Ms. Anderson tell you the nature of the dispute between her and Mr. Sloan?”
Behnke: “That’s outside the scope of direct. You’ll have to reopen, if you wish.”
McMenomey: “Thank you. A new fact in evidence, what was the nature of their dispute?”
Bennett: “Their father’s burial.”
McMenomey: “Did Ms. Anderson tell you she was upset?’
Bennett: “I believe she did.”
McMenomey: “Did she tell you why?”
Bennett: “They were accusing each other.”
McMenomey: “Did she tell you that’s why Mr. Sloan grabbed her by the neck?”
Opet: “Objection. That’s been asked and answered.”
Behnke: “I’ll allow it.”
McMenomey: “Did she?”
McMenomey: “Did she tell you the grabbing by the neck and shoving her into the wall was all one act?”
Bennett: “I don’t recall her saying that.”
McMenomey: “There’s a door to the outside?”
McMenomey: “And on either side of the door there’s a glass window?”
McMenomey: “She went through one of those?”
McMenomey: “To the outside?”
Bennett: “I believe so.”
McMenomey: “How far from the window was she standing?”
Bennett: “Four or five feet.”
McMenomey: That’s all I have.”
Opet: “Did you prepare a report?”
Bennett: “I did.”
Opet: “Was it within 24 hours of the incident?”
Bennett: “I don’t recall.”
Opet: “Was your report based on notes you took at the scene?”
Bennett: “Maybe… I don’t recall.”
Opet: “Were you wearing your body camera?”
Opet: “Did you examine the window?”
Bennett: “I did..”
Opet: “Was there anything on the floor?”
Bennett: “Yes, some glass shards.”
Opet: “On the inside?”
Bennett: “Yeah, but mostly on the outside.”
Opet: “Your honor, we would essentially ask the court to find that there was not sufficient evidence of serious bodily injury — there was a cut, but I don’t recall any serious bodily injury resulting from the incident.”
Judge Behnke read from the law books a paragraph describing serious bodily injury as a wound requiring extensive suturing, the loss of consciousness, requiring anesthesia for surgical repair, general anesthesia…
Opet: “I think it’s too vague. so I’d ask for a no-hold order and, failing that, a 17b. [reduction to misdemeanor].”
McMenomey: “I do think there’s reasonable cause to hold him [Sloan] to answer. There was a battery and visible injury, and she went to Howard Memorial Hospital. The injury required surgery and general anesthesia.”
Behnke: “Yes, there’s been testimony about a battery, we have that. And the victim suffered serious bodily injury, [reading again from the California Criminal Code] ‘a wound requiring extensive suturing or disfigurement’ and we have a doctor who described it as ‘significant,’ which is sufficient. It would have been clearer if the doctor could have described it as requiring extensive suturing, but I think ‘significant’ is enough. Now, I’ll hear the 17b. Motion.”
Opet: “This was family related over a very hot — emotional — issue. Mr. Sloan cared for the father for over a decade and was in a feud with Ms. Anderson and some of the other siblings when this incident occurred. And, your honor, Mr. Sloan didn’t actually intend for his sister to go through the window. He’s extremely remorseful over it all inasmuch as he wasn’t able to attend the funeral. He continues to care for his mother and has devoted his life to religion…”
Behnke: “Was he arrested? Is that why he wasn’t able to attend the funeral?”
Opet: “No, your honor. He had to care for his mother, who fell and broke her hip.”
McMenomey: “He has a problem with drugs and alcohol. I’m not saying he’s not deserving of the 17b. but it’s a bit premature — when you grab someone by the throat and push ‘em through a window -- so I’d object to any reduction at this time.”
Behnke: “It would strike me, given the family nature of this situation, and being in a mortuary where the father’s body is, this may be an instance where, as opposed to simply holding the defendant to answer, the smarter thing to do might be …[reads from Penal Code regarding probable cause, basis of findings, etc.]… Well, we don’t file those anymore, so why don’t I give it some time before I decide?”
McMenomey: “So you’re continuing the prelim?”
Behnke: “That’s my intention. I’m interested in knowing what the injury actually was.”
McMenomey: “I’ll be bringing in additional witnesses, then, your honor.”
The lawyers were working on a date for the continuance sometime mid-summer when I left.