The Public Defender & The ’62 Mets
by Bruce McEwen, November 4, 2010
Linda Thompson: As bad as the '62 Mets?
Public Defender Linda Thompson’s sloppy defense work was again revealed in the recent case of Glenn Sunkett. Sunkett got a lazy, incoherent defense and walked out of the Mendocino County Courthouse in shackles to begin a 63-year sentence in state prison for a Fort Bragg home invasion robbery. Sunkett’s attempt to get himself a re-trial was emphatically denied by Judge Ron Brown, a former Mendocino County public defender magically elevated to superior court judge.
Timothy Elliott of Hopland was defended by Thompson right into a second degree murder conviction.
Thompson’s win-loss record is worse than the ’62 Mets.
Since she’s the boss, what kind of legal talent does she hire?
Do any of them ever get anybody off?
Attila Panczel is a Thompson guy. Thompson reserves the big cases for herself. Her subalterns get to botch the lightweight stuff. Panczel had gotten Gary Munselle extradited to Alabama for a roach.
When the judge called Mr. Munselle’s case the other day, Panczel said it didn’t appear his client had been transported from the jail. One of the corrections officers borrowed a phone from the bailiff and called the Low Gap slammer. Mr. Munselle out there?
Munselle hadn’t been around for days. He was long gone to Ala-bam.
Glenn Sunkett had made it clear in his re-trial hearing that Thompson isn’t much for returning phone calls from the people she’s allegedly representing. Maybe the silent treatment is office policy. Panczel hadn’t heard from Munselle, so how was he to know that his guy was no longer in the state?
Farris Perviance III is the oldest public defender. Not all these guys have names out of 19th century novels, but sometimes it seems like it when you’ve got Attila and Farris working the same day. Mr. James Griffiths had been the senior man but he retired recently.
Perviance at least knew where his client was. David Wayne Van Deever was standing right there, present and in custody. Judge Brown told Van Deever he had a right to an identification hearing to make sure he was the David Wayne Van Deever the State of Washington was seeking. Van Deever glanced at his lawyer and waived the right. Mr. Perviance, despite the aristocratic ring of his name, is not a commanding figure. He has very little to say in court and he says it very softly, with a vocabulary limited to barnyard expletives like, “What’s this shit?” a line he used in a recent murder trial.
Dan Haehl is another lawyer who is soft-spoken in court, but voluble in his denunciations of the “police state” out in the hall. Haehl had a client accused of a DUI resulting in an injury to another person, but he spoke so quietly I couldn’t catch his client’s – a Ms. Phillips — first name. Haehl wanted to get her out of jail because she has four kids, he said, and works for the tribe out in Covelo. “She isn’t going anywhere.”
“And,” Haehl added, “the alleged victim denies she was driving when he was injured. They were out spotlighting animals when the victim fell out, got run over, and ended up with a broken leg.”
Ms. Phillips was on probation for a DUI when she went out for some night-time hunting. Her bail had been set at $75,000.
“Is there a reason the bail is set so high,” Judge Brown asked Deputy DA Rayburn Killion.
“I think it’s because of the GBI [great bodily injury], your honor,” DDA Killion said.
Haehl said, “What Mr. Killion fails to mention is that the victim also said Ms. Phillips was in the bed of the truck with him when he fell out.”
One presumes the “him” being referred to was not Mr. Killion.
Judge Brown was refiguring the bail and perhaps didn’t hear this last remark. He set the bail at $70,000. He might as well have set it at $70 million for all a woman with four kids can come up with seven grand cash to bail out.
Haehl’s next client was Abel Zwiep who was hoping to get out of jail before Christmas. DDA Brian Newman had at first objected to letting Zwiep miss the big Christmas feast at the jail, but after further research, he said, he was willing to withdraw his objection to getting Zwiep home for the holidays.
Zwiep was originally sentenced to 365 days last year. He was not only been doing his time, he’d also been striving to make something of himself. He had a variety of diplomas and some effusive letters attesting to his self-improvement effort at Low Gap. The certificates from Life Skills classes, the glowing progress reports, the various letters of approval – these things are catnip to judges, and Judge Brown was beginning to purr.
“When’s your release date,” he asked warmly.
“Christmas Eve, your honor.”
“Yes, your honor. And I have some seasonal work lined up. At the UPS store. If I were released in time, I’d get my old position back there.”
That was all it took.
Brown said, “I’m considering… Well, alright. I’ll modify the sentence to 240 days. You’ve done good work so far and I hope you keep it up.”
Jessica Hoagland was a classmate of Atilla Panczel’s. Linda Thompson had hired them at the same time. Ms. Hoagland was at the Willits court until it closed last January. Lately she’s been taking on more and more difficult cases, especially since Deputy Public Defender Elizabeth Fowlds moved to Sonoma County late this summer.
Her client was John Glass, but there was some kind of screw up. The Assistant DA, Beth Norman, said she’d talked to probation but was still confused. She said she’d found some scribbled notes in the probation report saying that on March 19th Mr. Glass had been sentenced to prison for three years but the sentence had been suspended. She said her own notes had some vague reference to the suspended sentence as well.
“But it’s not reflected on the docket or in the probation report. So I don’t know where that leaves us with this new felony violation,” she concluded.
“It is kind of an important point,” Ms. Hoagland said in profound understatement. “And the notes somebody jotted in the probation report don’t really matter. Probation didn’t sentence him.”
Brown said, “Was he sentenced in Judge Brennan’s court?”
“Yes, I believe it was,” Norman said.
Brown said, “There’s no indication a state prison sentence was imposed and then suspended. We need to get this resolved before he enters a plea to the new charges so he can make an intelligent decision.”
The judge decided transcripts of the proceedings from Judge Clayton Brennan’s court reporter would be needed to find out what in the world actually happened since nobody seemed to care enough to have a clue – except Mr. Glass who, under the circumstances couldn’t be expected to understand what was going on.
Brown said, “Mr. Glass, do you understand what’s going on?”
Glass nodded a gloomy negative. He understood all too well what was going on, but he wasn’t about to contradict His Honor. So, shaking his head ‘no’ while uttering the word ‘yes,’ the defendant, who’d gotten a big break from Judge Brennan, went out and got in more trouble. He was going bye-bye. Court Reporter Cecilia McEwen (no relation) was summoned from Brennan’s court on the top floor of the Courthouse. Brennan used to work out of Willits where he was Little Oz to Fort Bragg Judge Lehan’s Great Oz.
Rumors from the fog belt say Lehan seems to be slipping over the bi-polar edge; his notorious mood swings are more violent by the day.
When she arrived from upstairs, Ms. McEwen was given Glass’s case number and directed to bring transcripts of the Glass matter back downstairs. She wondered how many copies of the manuscript were needed. The court needed one. Defense wanted one, too. Prosecution would like one as well. Well, if it’s not too much trouble, maybe probation could even get one, eh?
Expansive as Santa Claus, Brown ordered transcripts for everybody.
On October 21st the court reporters held their third demonstration on the Courthouse lawn to protest the austerities adopted at their expense. The judges say they’ve got to cut back on expenses, not that they’ve volunteered to share the pain. The judges didn’t attend the protests. They snuck out the back through their private exits and went to watch the national and international news at Schat’s Bakery.
Brown demanded the transcripts be ready by November 19th. Happy Thanksgiving, Ms. McEwen! See you at the Food Bank! And the judges wonder why people quit working to grow weed.
Charles Wiley was called. Mr. Haehl again for the defense, Brian Newman for the people.
Mr. Wiley made the mistake of driving through Willits with some of that cool Humboldt County weed in his car. Willits cops can smell the difference between HumCo weed and the local stuff a mile off.
Early last May, around 4am, Officer William Fahey of the Willits Police was trying to keep awake. Even the tweekers had called it a night, and Officer Fahey, idling in his Crown Vic. Police Interceptor patrol car with the heater blowing on your feet, well, massive amounts of caffeine is the only way to keep from drifting off to Dreamland.
So along comes this rental car and there’s nothing else to do but pull this out-of-county hillbilly over for some company.
It takes about two seconds to fabricate what’s called a pretext question.
“Uh, sir,” The officer says, biting the knuckle of his forefinger to keep from grinning in your face. “But your door was open…” — at this point he reaches down and opens your door, quick as a cat and closes it.
“Can I see your driver’s license and registration? By the way it smells like weed. How much marijuana do you have?”
“About a joint,” Mr. Wiley replied.
“Please step out of the car, sir.”
Deputy DA Brian Newman could give Abbot and Costello timing lessons. They had the drill down pat!
Newman said, “What did he say when you told him you were going to search his vehicle?”
“He said he actually had more like seven pounds,” Officer Fahey replied.
“And what did you find in your search of the vehicle?”
“About seven pounds.”
“In the trunk.”
“You questioned him?”
“After I spoke with him. Then I cited and released him.”
“Did he tell you what he was doing with the marijuana?”
“He said he was transporting it to Fresno from Humboldt County. He said he’d done it before. He was taking it to his business in Fresno, the Hemp Shop where he gives it to patients [in return] for donations.”
“Did you understand what he meant by ‘donations’?”
“Yes. A dollar amount.”
Haehl objected. The witness, Officer Fahey, was speculating. Brown sustained the objection and the speculation about donations was stricken.
Newman said, “Can you tell me specifically what Mr. Wiley does with the marijuana?”
Haehl objected again. “I don’t see the relevance, your honor.”
Brown said, “I want to see where he’s going with this.”
Fahy said, “He says he sits at the club, waits for people to arrive, then gives them marijuana and they give him donations.”
Newman was content with that.
Haehl began his cross-examination.
“Did Mr. Wiley provide you with any documentation regarding his Hemp Shop?”
“He had what appeared to be business cards.”
“Do you have any special training in …well, regarding marijuana?”
“I have not.”
Haehl seemed at a loss. There was a long silence as he looked through some papers and conferred with his client. Then he said Mr. Wiley would like to testify.
Brown looked concerned. He said, “Does he understand he has a right not to testify.”
Wiley said he understood, but could he speak to his lawyer first?
“Yes, of course,” Brown said.
After another long whispered conference, Wiley took the stand, and from the look of regret on Haehl’s face it was against his advice.
Haehl said, “Are you involved in a medical marijuana collective, Mr. Wiley?”
“Objection,” said Newman. “There’s no foundation.”
“Sustained,” Brown said.
Haehl was perplexed. Brown, as if it wasn’t clear that Wiley sold dope under the usual medical fol de rol, told Haehl he needed to establish more of back story.
Haehl began again tentatively.
“Are you familiar with a medical marijuana collective?”
Haehl was flustered but he plugged away, “Is the Hemp House a California Corporation?”
“Do you pay licensing to the state?”
“Do you pay taxes to the state?”
“How many people are involved?”
“Two to 500.” (Did he mean 200 to 500?, or 2 to 500? Nobody explained.)
“Do you personally have a medical marijuana recommendation?”
“And are there other members of the collective in Humboldt County.”
“Objection. There’s been no evidence that there is a collective.”
Brown said, “The term collective is misleading so the objection is sustained.”
“Well, in that case,” Haehl said, “I have nothing further.”
Newman pounced on the witness like a cat.
“Are you the owner?”
“I’m just a member.”
“Are you the principal?”
“Is your name on the document as the owner?”
“If I show you an article of incorporation for the Hemp House, is your name on it as the owner?”
“Well, does it anywhere have the term medical marijuana on the document?”
“Is anything missing from that document? Do you have any reason to believe that anything is missing from that document?”
“Uhh… wull, since you’re on the other side from the defense, I don’t think I should say.”
Wiley looked at Haehl for help, but he’d already dug himself in deep. Maybe he even he realized why both the judge and his lawyer had tried to stop him from taking the stand.
“No,” Wiley finally answered in defeat.
“Is there any other person’s name on that document other than yourself who is responsible for the Hemp House?”
“No,” he answered dejectedly.
“So you were taking the seven pounds to the Hemp House?”
“And it was your intention to provide it to other people?”
“To our collective!”
“To people. You mean people. They’re people, aren’t they?”
“Yes, I guess so.”
“And the Hemp House is your business, isn’t it?”
“Wull, I’m in charge of crossing all the ‘i’s and dotting all the ‘t’s, if that’s what you mean.”
“Oh, so you don’t personally provide marijuana to people?”
“Then who does?”
“And you provide it to the volunteers?”
“Wull, uh, the members do.”
“The seven pounds you were taking to the Hemp House. You provide them the marijuana and they hand over the money?”
“Objection, your honor. That’s been answered.”
Newman was pacing around the courtroom, taking shots at the witness from every angle, his ease and proficiency in stark contrast to Haehl’s tentative nervousness.
He said, “What do you do at the Hemp House, specifically?”
“Wull, we provide a variety of products and information helpful to patients.”
“What kind of information?”
“We have books on how to grow, that sort of thing.”
“So you also show them how to grow marijuana as well?”
“Do you take the patients to the doctor, go shopping for them, anything like that?”
“My mother, yes. I take my mother to the doctor and shop for her.”
“But not the others, the other two to 500?”
“So on a consistent basis, do you do anything for your patients besides provide them with marijuana or give advice on how to grow it?”
“Objection, your honor. Relevance.”
“Overruled. It’s relevant as to if he’s a care-giver.”
“How did you acquire the seven pounds?”
“Meaning you didn’t provide any money for it?”
“And after you provided the marijuana to the people at the Hemp House and they provided you with money, you’d provide it to the person in Humboldt County who gave it to you?”
Wiley saw the trap he was in. No matter how elegantly you phrased it, it was just a dope deal.
“Wull, yeah, I guess so,” Wiley admitted reluctantly.
Haehl swung up in the saddle and came riding to the rescue.
He said, “Was the person who provided you with the marijuana a member of your corporation?”
“Yes,” Wiley said eagerly.
Newman said, “What’s his name?”
“The person who gave you the marijuana.”
“Wull, uh, I don’t think I should say.”
“Judge,” Newman said, “I’m asking you to order him to answer.”
“Brown said, “Answer the question.
Wiley said the name.
Newman said, “Spell it.”
Wiley spelled it.
Newman said, “What’s his address?”
“Your honor, I object to these police state tactics,” Haehl spluttered indignantly.
Everybody in the courtroom laughed at the familiar refrain from Mr. Haehl, who usually complains about the “police state” in the hallways, not in open court. Even Judge Brown, a crucial enforcer for the police state, couldn’t resist a smile. But Newman was finished. He’d had a lot of fun and laughed heartily. Wiley was held over for “further litigation,” Brown said.
In the meantime, it was young Ms. Hoagland’s curtain call and she seemed to have caught stagefright. The judge had retreated to his lair and Hoagland was conferring with her co-counsel, Mr. Lewis Fitch, the junior lawyer at the Alternate Public Defender’s office. She spoke with Mr. Fitch, then with her client, Ms. Kelly Dutra, then with the prosecutor, Ms. Katherine Houston. Then back to Mr. Fitch who would be representing her client’s co-defendant, Mr. Gerald Stephenson.
While this was going on a bunch of fifth graders on an educational outing to the Courthouse came in and filled up all the seats. There were some whispered jokes in reference to the popular game show “Are You Smarter Than A Fifth Grader,” but Ms. Hoagland didn’t find them funny. More time went by and still the judge didn’t come out. As time wore on with nothing happening, the kids started getting antsy and after about 20 minutes their teachers decided to move them along to other, more interesting sights and scenes. After they were gone, the judge came out.
Ms. Hoagland told Judge Brown that something had come up. She needed more time to go over the something with her client.
“So I’m moving the court for a continuance,” she said.
But the court didn’t budge.
Judge Brown said, “Your motion is denied. The hearing will proceed as scheduled.”
“But, your honor, I need time to go over this with my client.”
“It’s been a half-an-hour, you should have done it then.”
“Oh, no. Can I have just 10 minutes?”
Brown said, “You can have five, and that’s all.” Then, badger like, Brown scurried back back through his door to his inner sanctum. When he returned, Ms. Hoagland said her client was willing to take the prosecution’s offer. Ms. Dutra would plea to “a conspiracy to commit an offense against the public health and morals.” This is more commonly known as accessory to cultivation, the misdemeanor DA Lintott was pretending didn’t exist in her recent debate with David Eyster on KZYX. But everybody but the Organic Nerf People were watching the Giants game that night and missed it.
“Any special reason for this disposition?” Brown asked.
Ms. Houston said, “The fact that she was the least involved person on the property, she was probably just assisting in the cultivation of the marijuana, your honor.”
Ms. Hoagland said, “I just want to make sure the court understands that this was no state prison time at the outset.”
“That’s conditional,” Brown told her, and Ms. Hoagland left with her client, the latter undoubtedly wondering, “Conditional? Is the Robe going to send me to prison?”
The co-defendant, Gerald Stephenson would be going it alone. Special Agent Jason Cox was called to the stand. Cox, a handsome young guy who could be a TV cop, said he’d led the Task Force on a raid at what’s called the Trout Farm on Branscomb Road in Laytonville on August 18th. He found a marijuana grow by the side of Stephenson’s house, some shotgun shells, and a ‘hype-kit” inside the house. Down a footpath, he found a bigger grow, a marijuana garden with 56 plants. He’d also found a Ruger 30.06 behind the seat of a pickup. As a convicted felon, Stephenson wasn’t supposed to have a gun.
“Did you speak to Mr. Stephenson,” prosecutor Houston asked.
“Yes. He explained that the plants were not his, they belonged to other people. He was just taking care of them, and didn’t know yet how much he would be paid.”
“Did he claim he had a medical marijuana recommendation?”
I don’t recall. But he was very clear that he did not use marijuana.”
“Did you find any medical marijuana recommendations?”
“Yes. There were two for individuals who were part of a co-operative or collective. One, if I recall correctly, lived in Chico, a Donald Dorning.”
“Did Mr. Stephenson indicate how much he would get paid?”
“No. It depended on how much they got for the marijuana. I asked if he was to be paid in cash or marijuana and he said he didn’t use marijuana.”
“Did he say anything about the truck where you found the rifle?”
“Yes, he said it was the truck he used to work on the property. As for the rifle, he denied knowing it was there.”
“There was a David Higgs at the property?”
“Yes, at another part of the property. It’s a huge property, probably 700 acres. Stephenson said whatever rifle was in the truck must belong to David Higgs. So I asked Higgs to describe his rifle and he described something completely opposite, a semi-automatic with a six-inch clip, or magazine.”
“What about Ms. Dutra?”
“She just helped out. She was just doing it to help Stephenson.”
“Did you ask about the shotgun shells?”
“Yes. His first statement was that he found them around the property and put them in the house. But later he changed his statement and said they must have belonged to Mr. Higgs, and that he put them there.”
“Did you form an opinion as to the marijuana?”
“Yes. It was being grown for the purpose of making money.”
Mr. Fitch began his cross-examination.
“When you went into the house, did you find any clothing?”
“Did you examine it to see who it belonged to?”
“Find any paperwork?”
“Anything involving a collective?”
“I’m not sure.”
“Regarding the medical marijuana recommendations, you mentioned Donald Droudy. Then there was a Debra Gaylord and some others, that would be five, correct?”
“Now, did you look to see if there was any more paperwork?”
“Did you locate any?”
“I did not.”
Did anyone else find any?”
“Since I was in charge, I expect it would have been brought to my attention and it was not.”
“This property had been under surveillance, was it not?”
“Objection, relevance,” Houston said.
“How is that relevant?” Brown asked.
“I want to see if other people were going in and out of this parcel.”
“The objection is sustained.”
Fitch tried a different tack.
“You didn’t find any Pay and Owe sheets, did you?”
“And no scales?”
“Did anyone else find any of these things?”
“It wasn’t brought to my attention, if they had.”
“You estimated the property at 700 acres. Do you know the owner?”
“I do not.”
“So there could be a number of leases on this property?”
“Were there other trails to the marijuana plants?”
“No. I walked around the grow and video-taped it, and observed no other trails other than the one I came in on.”
“Do you know how many access points there were for water?”
“Well there’s creeks and ponds, if that’s what you mean. Are you asking if there was piping going into the garden, counsel?”
“I did not see any items that stand out, any that did not come from the house.”
“Going back to the rifle. This is a work truck for the property, and others had access to it, is that your understanding?”
“As I understood it, this was the truck for Mr. Stephenson to do the work on the property.”
“Did you inquire of Mr. Higgs?”
“I think I did.”
“Did he have access to the truck?”
“Yes, he said he did.”
“You found the rifle behind the seat. Did you dust it for prints?”
“I have asked for prints, yes.”
“When Mr. Higgs described the rifle, he did say it was black, didn’t he?’
“Yes, he did get black correct,” SA Cox smiled.
“Mr. Higgs made mention of some other guns?”
“He was clear on his gun. He said it was a semi-auto with a six-inch magazine.”
“But there is a magazine in the rifle, isn’t there? And what is it? Four? Five inches?”
It was hard to tell if Mr. Fitch was playing stupid or really had no notion of firearms. It seemed strange he didn’t know the difference between a detachable magazine and a built-in one. Or was he intentionally trying to confuse the issue — ?
He said, “So if there were four rounds in the rifle it could have been at least a four or five inch magazine. You did not measure the rounds, correct?”
SA Cox looked at Fitch like he was a carnival freak.
“Correct,” he said at last.
“Now this hype-kit.”
“That’s just what we call it,” Cox said. “There were some syringes, a spoon with a white residue, some cotton balls used for shooting-up.”
“But you saw no evidence that Mr. Stephenson was injecting drugs?”
“I saw no marks on him, but I do know him to be a methamphetamine user. But I did not evaluate him for it, no.”
Ms. Houston said, “When Deputy Hendry brought Mr. Higgs to the main staging area, and he and Mr. Stephenson were passing each other, Stephenson called out to Higgs that ‘I’m gonna get charged for your firearm in the truck’ did he not?”
“Then you talked to Higgs and he described his rifle, the one with the six-inch magazine?”
Ms. Houston was satisfied and wanted to move Mr. Stephenson’s rapsheet into evidence, so the felon with a gun charge would stick, but Fitch objected. He said the rapsheet was a copy, a computer-generated copy and couldn’t be moved into evidence because it wasn’t certified. This put a halt to things. The judge and the prosecutor went searching through their law books in a desperate search for a way to stave off a miscarriage of justice, for a felon to get off on a technicality.
Houston said, “In the old days, I don’t think the clerks certified everything.”
The Old Days she was referring to was circa 2004.
She said, “I’ve never yet had a rapsheet not be admissible.”
Fitch said, “I don’t know the legislative history, but I do know the rapsheets are prone to error, which are sometimes in favor of the defendant.”
Brown said, “I don’t see anything unusual and I am familiar with the kind of glitch you are referring to, but I think there is sufficient reliability in the form to accept it.”
Mr. Fitch shrugged doubtfully, as if Brown were being rash to the point of peril. He said he still thought there was considerable doubt about the size of the magazine in the rifle, “Whether it was four, five, or six inches, I don’t know. And we have a person claiming the rifle, so I don’t think there’s sufficient evidence.”
Houston said, “I think there’s sufficient evidence. I think he was not only aware it was in the truck, but was also well aware he wasn’t supposed to have it.
Brown agreed with Houston, and Stephenson was bound over for arraignment on November 15th.