Willie’s Miracle

by Bruce McEwen, June 28, 2017

Housley

The jury trial of William “Willie” Housley of Boonville began last week, and the courtroom — presided over by visiting Judge David Devore from Alpine County — had to be evacuated from Department G, in the stately old high-ceilinged part of the building, where the AC had failed, and an insufferable humidity had filled the room.

“It smelled to me like an enclosed swimming pool at a budget motel in the off-season,” one bystander told this reporter.

“Ah, I caught that too,” said another within easy earshot.” It was like a sauna in there.”

To this reporter, it smelt and felt like a sauna. The judge took one look at my necktie, and asked the lawyers if the dress code could be relaxed, for the sake of the press corps. The sweating mass of citizens with jury duty summons were sweltering in the basement where there was at least a welcome breeze cooled by the redwoods outside the tall windows. This crowd’s imminent arrival in such a close space would have made Department G unendurable.

At the peak of the crisis, the gracious Judge Ann Moorman surrendered her courtroom with its new air conditioners where the climate on the hottest days feels like Springtime In The Rockies. The visiting judge from Alpine County never broke a sweat, and jury selection began.

By the close of the first day the jury had been whittled down to a few exceptions to the fair and impartial standard; they would be gone the next morning, if defense had any pre-emptory challenges left. There was the teetotaler buttoned right up to her collar even in last week’s abominable heat. She was the Christian Saint of Temperance who runs the local Alcoholics Anonymous Chapter, and made no bones about her disapproval of drinking in general, and drinking and driving in particular. Then there was a retired Highway Patrol Officer, and a psych nurse at the jail, a woman who transports car wreck patients, a volunteer fireman, a CalTrans employee, and even a guy facing his own DUI charges.

Deputy DA Brian Morimune was prosecuting the case. He thanked and excused the guy with the DUI. On defense, the redoubtable Jay Pitchford, of the Office of the Public Defender, thanked and excused the CHP officer. Keep in mind that Pitchford is a solid lawyer and has defeated prosecutor Morimune in previous courtroom battles.

One of the courthouse functionaries came in and sat by me as I was taking notes. She said, “Bruce, you can wear shorts tomorrow.”

Apparently, word had gotten around that the visiting judge thought the dress code too strict for the weather. I acknowledged the consideration, but had to admit I don’t even own a pair of shorts. I did however, come home and roust out my tropical-weight khaki slacks.

The person whose job was transporting trauma victims, was excused by the judge, after she admitted she couldn’t be fair and impartial. The rest were sworn in at around 10:00 Tuesday morning and the trial began.

During opening statements, Deputy DA Morimune predicted that it would be a simple trial and the jurors would come back with a guilty verdict.

Back story: A call of a disturbance had come in after 10:00 at night in the residential area of Gardens Avenue last May 11. Officer Cooper was dispatched to the scene where he found the defendant obviously intoxicated, even though the man claimed to have had only a single glass of white wine with his dinner at the Ukiah Brewing Company.

Morimune told the jurors they would all see how poorly Defendant Housley did on the field sobriety test (FST), that his blood alcohol level (BAC) was at .19, which was exorbitant. Morimune also promised experts from the Department of Justice would show that when the rate of elimination was taken into account, it would be obvious that Defendant Housley had driven while intoxicated.

For the defense, Pitchford told the jurors that they should take their role seriously, and listen to all of the evidence before making up their minds.

“We are not going to contest the .19 BAC, but no one saw Mr. Housley drive, and I don’t believe any of the witnesses will be able to tell you when he drove and how much alcohol he had in his system at the time. And remember, they have to prove it beyond a reasonable doubt.”

Prosecutor Morimune called his first witness, Officer Jonathan Cooper of the Ukiah Police Department. Officer Cooper said he’d been dispatched to the Gardens Avenue address at 22:40 hours (10:40 civilian time) because of a complaint that someone was banging on the neighbor’s door and causing a disturbance. Officer Cooper found Housley, “who appeared intoxicated, with thick, slurred speech, red, watery eyes, and a strong smell of alcohol on his breath, standing next to a black Buick sedan.”

Cooper noted that the car was poorly parked, blocking a driveway, and the back of the car extended into the roadway. When Cooper had mentioned the errant parking to Housley, Housley said, “Then write me a ticket.”

Cooper had been wearing a body camera, and the incident was recorded, but there were distractions, with calls coming in over the radio, a patrol sergeant moving around in the background, and — what would prove a decisive bone of contention — a compound question, in the form of did he drive there, and was that his car?  To which Housley answered yes, and defense would argue that he was answering only to the last part of the question, about it being his car.

It was confusing enough that the transcripts given to the jury were not accurate. So the judge told the jury that the transcripts were only an aid, a faulty aid, and that the evidence was the video recording.

The video of the Field Sobriety Test showed that Housley was intoxicated, and he was transported to Ukiah Valley Medical Center for a blood draw. The blood was sent to DOJ in Eureka and criminalist Jyoti Malik later took the stand to testify as to the 0.19 BAC. As noted above, Defense had no quarrel with any of this.

Another difficulty for the prosecution was Sergeant Rick Pintane’s admission that he didn’t remember feeling the exhaust pipe to see if the car had been driven recently. There was a place on the recording where he told Officer Cooper that it was warm, but he told the jurors he honestly didn’t remember feeling it or saying it was warm, even though it was on the recording.

“I truly don’t recall touching it,” he said.

On this flat note, prosecution rested, and Pitchford put his client on the stand.

Mr. Housley, 48, a fit man who looks younger than his years,  said he’d been at the residence of his cousin drinking that afternoon and then went — walked, actually — down to the Ukiah Brewing Company for a grass-fed buffalo burger and a glass of white wine. When he came back, he started banging on the door because he couldn’t find his phone and wanted to call someone to come and pick him up. That’s when the police showed up. There was an incident where Housley took his car keys from his pocket and tried to get into the car, but was stopped by Sgt. Pintane. When asked what he thought he was doing, he said he wanted to get into the trunk and see if he’d left his phone in there. He’d come to Ukiah for dog food, he said, and to pay a bill at the auto parts store where he’d bought some oil.

Sgt. Pintane had inventoried the contents of the car before it was towed, and there was no dog food or motor oil listed on the inventory sheet, a 180 Form.

On cross-examination, Mr. Morimune would use the 180 Form to try and impeach Housley.

“What did you come to Ukiah for in the first place?”

“To get dog food and pay a bill at O’Reilly’s. Also, I bought some auto parts.”

“What kind of auto parts?”

“Oil, stuff like that.”

“You said some other errands — what were they?”

“I don’t recall.”

“Why did you bring up the dog food?”

“That was my reason for coming over.”

“You came over for dog food and didn’t get it — how do you explain that?”

“Insufficient funds, I’d have to say. I had to pay a bill at the auto parts store and then I didn’t have enough money.”

“What kind of auto parts did you buy?”

“Fluids.”

“Like oil?”

“Yeah.”

“What did you do with it?”

“Put it in the car.”

“Take a look at this 180 Form. There’s no oil listed on there, is there?”

“No, but there’s nothing from the trunk on there.”

“Now, you said you ran out of money, so you couldn’t purchase dog food, but you went out to dinner at the Ukiah Brewery and got your self a grass-fed bison burger and a glass of wine?”

“Yeah.”

“So it was more important to you to get a grass-fed bison burger than dog food? Don’t you care about your dogs?”

“They weren’t completely out of food.”

“All these things you said today, you didn’t tell Officer Cooper any of these things, did you?”

“Correct.”

Morimune then tried to catch Housley on inconsistent statements in his comments to Officer Cooper. He would ask a question, Housley would answer, then Morimune would contradict him with what was in the transcript. Pitchford objected. It had been stipulated that the transcript wasn’t accurate. Judge Devore agreed. Morimune complained that his burden was too heavy, that he couldn’t plan for every contingency — how was he to know the defendant would bring up all this stuff on the stand?

Judge Devore patiently explained that there were remedies, and that he could put the officer back on the stand and go about it that way. However, since Cooper didn’t do the inventory, all he could say was that if there had been any oil or dog food in the trunk, Sgt. Pintane would have listed it on the 180 Form. “It’s been my experience that Sgt. Pintane is pretty thorough.”

Mr. Morimune then recalled his expert on metabolism, Anthony Palario, who studies how the human body processes alcohol, what’s called “the elimination rate.”

Morimune: “In a hypothetical situation involving a male subject of approximately five-foot-nine-inches and weighing approximately 200 pounds, who has, hypothetically [Morimune pronounced the word with a good deal of sarcastic emphasis, while briefly turning his gaze on the defendant] drank four Heineken beers, four others he can’t remember the name of, a shot of Captain Morgan spiced rum, and one glass of white wine, all this between the hours of approximately 3:30 and 10:30 pm — what would be the elimination rate?”

Palario: “The elimination rate would be approximately one drink per hour. So, we have here a total of 10 drinks over the course of 7.5 hours. That leaves two and a half drinks. Theoretically, the most his blood alcohol could be at that time would be a 0.04. On the hypothetical, that’s the most I can give you.”

Morimune: “Now, if we go to 11:40 pm when the blood draw was taken, what would you expect to see, then?”

Palario: “That would be eight hours, essentially, and eight of the 10 drinks would be removed from the system, leaving about a 0.03. Hypothetically, again, to get from 3:30 to 11:40 — well, just to get there, at 0.19, would take 10 drinks and you would have to add one every hour to maintain it, so it would come to a minimum of 18 drinks.”

Morimune: “Nothing further.”

Pitchford: “So someone would have to be drinking pretty heavily, wouldn’t he?”

Palario: “Yes.”

Pitchford: “So he’d be pretty intoxicated?”

Palario: “I’d say moderately.”

Pitchford: “Two and a half times the legal limit is moderate?”

Palario: “I see levels a lot higher in my work, so to me that would be moderate.”

Pitchford: “Nothing further.”

In closing, Pitchford said the expert had proved that his client had downed more than the 10 drinks he admitted to, but that didn’t prove he’d driven while he was drinking. He then told the jury that when a case rested on circumstantial evidence, they must choose the conclusion that pointed to innocence. He actually read the instruction from the book. “To convict my client, you have to be left with an abiding conviction that the charges are true, and if you follow this instruction, I don’t think you can convict him.”

Morimune said, “It’s my burden, I have to prove this case, and I have. Use your common sense. Ask yourself, is it reasonable? Everything in life is open to some doubt, even if it’s imaginary, but reasonable doubt is the standard. What I need to prove is that the defendant drove, and that when he drove, he was intoxicated, and I have. The story that the car had been there for four hours — he made that up, he concocted it. The tailpipe issue, Mr. Pitchford makes a big deal out of that, but the sergeant felt it, it was on the video, even though he didn’t remember doing so, so you must conclude it’s true. Again, use your common sense. He lied to you, but the science doesn’t lie; please, use your common sense, thank you.”

The jury was back in a little over two hours.

Not Guilty.

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