Judge Henderson: Master of Suspense
by Bruce McEwen, February 2, 2011
When last we saw Eldon Hogan he was on his way to San Quentin. Eldon was only going for a visit, an evaluation to see if the people at the state prison thought young Eldon, 18, was their kind of guy, the kind of guy they’d like to keep for a long, long time.
The San Quentin people thought Eldon would do just fine in the state pen, and they recommended to Judge Henderson that the judge send Eldon back down to Marin for a more consequential stay.
It’s safe to say that Eldon’s prospective roomies would especially like to see the boy come on down for a nice, long stay — fresh meat, they call lads like him.
Granted, most the denizens of the state prisons are broken old cons, bent middle-aged felons, and twisted 20-somethings. Few, very few are in for a first offense. Most have been in the joint before. If they were young, they served a kind of “apprenticeship," earned a couple of stripes and went back in, lions and tigers of the cubist jungle. That is to say, career criminals.
Hogan’s lawyer, Bert Schlosser, was pacing along the rail of the jury box delivering a commentary on the deplorable state the Department of Corrections has descended into, all of which is universally acknowledged.
He said, “Do these 1203.3 evaluations ever come back positive? No, of course not. We all know that. It’s the most blatant conflict of interest in the state — if not the whole wide world. Anywhere else — if you or I, for instance… but your honor knows this as well as anyone. The point is, last year the legislature voted to do something about the overcrowding at the prisons. So we got the half-time arrangement at the jails. To help alleviate the problem, the over-crowding — and we’ve all heard the horror stories, the violence these conditions cause. And it was working. But! But the prison guards’ union got it thrown out in only nine months’ time. It’s a very powerful union with a vested interest in keeping the prison populations up, and these 1203.3 evaluations are rubber stamped as a matter of course.”
Schlosser paused and leaned on the rail next to his client, a 1203.3 casualty. Schlosser looked as desperate, somehow, as Eldon, who was white as the proverbial ghost. The kid was scared. He'd been there and he didn't want to go back.
“When Mr. Hogan got back," Schlosser continued, "I sent my investigator, Tom Hine, to the jail. I’d heard there had been some kind of incident at San Quentin and my client was the victim, but he decided not to pursue it. That’s called ‘survival’ in the pen, your honor.”
Schlosser held up some pages of notebook paper and said, “Then Tom said I had better take a look at this.” Schlosser smacked the papers smartly with the back of his other hand and continued: “And get it in front of a judge.”
The courtroom was still. A woman stifled a sniffle in her hanky. The clock ticked.
Quietly, Schlosser said, “I didn’t ask him to write this. I’ve never seen anything like it. But it’s really, it really is, something worth considering. He outlines the horror of the CDC. We can see from this that once we send somebody there, we’ve tattooed ‘em, we’ve marked ‘em for life. They can’t come out of that system without being full of hate and, hey, all that goes with it: a criminal in every sense.”
Apparently something terrible, awful even by prison standards had happened to Eldon Hogan on Christmas Day because Schlosser said, “It’s not just the incident on Christmas, your honor. We’ve got to realize what we’re sending these guys into, what it’s doing to these young men, and decide if that’s what we want to do. I mean, it’s not like my client was already a natural criminal, so crafty, so shifty, that he slipped through. Not at all. He has no record, no prior encounters with law enforcement. The diagnostic report from the psychologist says it all. He has a poly-substance abuse problem; the alcohol, the marijuana, the methamphetamine, and — that’s all. His family is very supportive” — Schlosser swept his hand along the wide rows of people who had turned out in Eldon’s support, some of them sniffling and daubing their eyes with handkerchiefs.
“So what do we do?”
There was no doubt what Judge Henderson wanted to do.
The judge had made himself clear on what he thinks about home invaders.
"I want to send a message that this particular type of crime is not going to be tolerated,” the judge has said, and who among us can disagree? You're in your home with your family and a bunch of foul-mouthed mopes come running through the door with guns? Nope. Can't have that, but all of us here in Mendocino County know a lot of it goes on, and a lot of it never gets reported, and a constant fear runs through the hills that it could happen to you.
Young Mr. Hogan's prosecutor, the no-nonsense deputy DA Scott McMenomey, was more adamant by half for sending messages about this particular species of violent crime. Ditto for the Probation Officer, Tim King.
Everybody but Eldon, his lawyer and his family, were all on the same page: Boy, you’re prison bound!
And the County's $200,000-a-year shrink? It seems that eminence could go either way, although he's not paid to waffle.
Schlosser said, “There’s a big hole in the Doc’s report, a hole you could drive a truck through.”
True, there was a conspicuous vacuum in the report when it came to comments on whether Eldon represented an ongoing menace to the community.
“So is this someone we can take a risk on?" Schlosser demanded. "I think he is. While he was down there doing the 1203.3 [probation evaluation] he saw what he was going into — and we all know how he’ll come out. We know what we’ll get back — you can bet your house on it! On the other hand, the psych report talks about how much potential he has — the positive support of the family, his intention to get into a new peer group, a rehab program — they recommend only a 90 day program so he can get a job, go to college, and re-enter the community. I think we have an opportunity to give one of these kids — who is openly addressing his issues, with his family’s support, a chance. He knows he’s made a major mistake, how bad he screwed up, and he’s willing to do something about it and, well, I’ll submit it on that,” Schlosser concluded.
“It won’t do, your honor,” DDA Scott McMenomey responded, wagging his head dolefully.
McMenomey didn’t even bother to stand. Maybe he only comes to his feet in a murder trial. I saw him rise to refute the defense only once. That was during the late Terry Cohen’s murder trial, just before Schlosser’s predecessor, Mr. Berry Robinson, retired. McMenomey wasn’t getting up for Eldon Hogan, no way.
“First of all,” McMenomey began, “he was an active participant in a violent home invasion.”
True, but Hogan was the driver while the other mopes ran into the house waving guns. Eldon had sat scared-stiff in the getaway car the whole time, not that he should have been there in any capacity.
“What’s not being mentioned here is the victim!” McMenomey said, not lingering on the fact that the vic, a Mr. Murphy was growing marijuana for sale and profit, a crime the old DA’s office indiscriminately prosecuted with Reefer Madness energy.
“The review board at CDC recommends that the defendant belongs in prison, and I don’t put a lot of stock in what the psych said. He makes no mention of being no threat to the community, as Mr. Schlosser points out. But the omission is inconclusive. I don’t know whether he means No Threat, or what —?”
Scott McMenomey may have been seated, but he was spring-loaded. His legs were taut under his chair and his feet looked to be poised on all ten toes as his fingers laced into a double fist, a spring in a pinstripe suit and what working cowboys call “parlor boots.”
“And I disagree with what counsel said about a financial interest at CDC,” McMenomey continued. “In fact, I think we did see one positive report come back a year or so ago — I don’t remember the exact occasion — but there have been positive responses on these 1203.3s! And it must be remembered that it was only two of the three persons in the report that didn’t think he was a good candidate for probation.”
The Prosecutor was navigating some tricky currents here. By pointing out the dissent of one of the review board members at CDC, he was weakening his resolute case for prison. Eldon Hogan was standing in jail-issue blaze-orange P-Js and Peerless® bracelets looking progressively more scared. His female family members were about to break into open weeping as the Prosecutor said, “I think if you break into somebody’s house you are going to go to prison.” McMenomey said it matter-of-factly. Two beats — then he said it again, “We want to make sure everybody understands this: If you break into somebody’s house, you are going to prison, and I’ll submit it on that.”
Judge Henderson nodded slightly and turned to Mr. King in the witness box.
“There have been several that have come back positive over the years recommending probation,” King began defensively. “I read his diary, I know what the conditions are like. It’s not a nice place. But we’re seeing so many of this kind of crime — we just had another shooting last night in Laytonville, and I’ll bet it was a home invasion.”
At this point the probation officer began addressing Eldon personally.
He said, “This may have been a lapse, I don’t know, but you’ve made a very bad mistake for your first time and I’m going to stand by the report and recommendations as they are.”
There were audible moans as the boy slid closer to that southbound prison bus, those dusty old grey-green jobs with the bars on the windows that drive up and down 101 every day of the week, picking up one-way passengers bound for the state prisons from San Diego to Pelican Bay.
One poor creature was doubled over in anguish trying to staunch her tears; another woman’s face contorted in grief as she choked back a whimper. There had been some speculation that the kid might get one last chance. The family was hoping....
Judge Henderson said, “I’ve reviewed all the documents and wrestled with this for a couple of hours. One of my earlier views, which is consistent with the Deputy DA’s and the Probation officer’s, still stands.”
The courtroom was now a chorus of cries, a small sea of pure sorrow.
“This is the kind of case where by its very nature we should send someone to prison; it’s such a horrendous crime,” the judge said as even some of the men dragged their sleeves across their eyes.
“The court will NOT grant probation in this case,” Henderson announced. “The court will sentence Mr. Hogan to the mitigated term of three years in the state prison.”
Shrieks, and a pandemonium of pure grief.
“However,” Judge Henderson said with that curiously mirthless smile of his, “I’m going to suspend execution of the sentence.”
For people not familiar with the jargon of the court, it usually takes a couple of beats to translate the meaning of such a sentence. Judge Henderson was already launched into his usual disquisition on the iniquity of home invasions in general and this case in particular, by the time Eldon and his family understood that the kid had been granted a last-minute reprieve.
Henderson was saying, “These are terrible crimes and I think Mr. Hogan has earned his way to prison — but I’m looking at his age, the fact that he has no prior criminal record and seems to have been acting under the influence of alcohol and drugs. I’m really worried about backing off on sending a message, however.”
Henderson paused as if he might still change his mind. If this little drama was designed to scare the bejeezus out of Eldon and his family, Francis Ford Coppola himself couldn't have staged it more perfectly.
The kid looked like he might faint dead away, the audience was crying and gasping.
The judge explained, “The court will find unusual circumstances and suspend execution of the sentence, but if you come back to this court, if you take one drink or smoke one joint, I assure you Mr. Hogan, you’ll go straight to prison. I am also ordering that you serve a year in the County jail and enroll in a suitable treatment program for your drug and alcohol problems.”
The Deputy DA seemed disgusted, but he wasn’t giving up.
“I’m not immune to the fact that Mr. Hogan is a young man, but I think it’s appropriate that if you are going to suspend the sentence then the court should suspend the mid-term sentence of six years. The court may impose the nine year term in this case as well, but I would ask the court to consider the mid-term.”
Mr. Schlosser didn’t object. His argument had been that all Eldon needed was a chance — that any more time at the infamous prison beside the beautiful bay would destroy the kid. What did it matter whether it was three or six years hanging over his head?
Judge Henderson imposed the mid-term.
The kid has a lot of time hanging over him, but he and his family had been given a major shot of pure hope. Outside, the bright spring-like sun of our odd January dried their tears.
And with the sun, came flowers. Three gorgeous attorneys from Pier 5 in San Francisco came into the courtroom: Sherry White, Sara Zalkin, and Ann Marie Thomassini. They were in Mendocino County to settle a matter of some marijuana trimmers charged as felons during the administration of former DA Meredith Lintott.
The case had originally been before Judge Ron Brown, who has left the bench due to a serious illness. A disgruntled member of a medical marijuana cooperative had snitched off his former colleagues and they were all busted during a trimming party.
Besides the three lawyers from Pier 5 (loosely headed by famed defense attorney Tony Serra), there were some local defense attorneys involved in the case, such as Dan Haehl and Kit Elliott. Some of the defendants were present, others absent, but all were represented by their respective lawyers. Deputy DA Rayburn Killion was prosecutor and he cleared the issue up, declaring, “The new DA has decided to dismiss the charges against the trimmers in the interest of justice.”
Of course. They never should have been charged in the first place.
* * *
Speaking of the new DA, it appears that the old one, Meredith Lintott, has thrown her hat in the ring for an appointment to replace Judge Ron Brown. So has Ms. Kit Elliott and Magistrate David Basner. It’s anybody’s guess who the new governor, Jerry Brown, will appoint. But for those of us who were glad to see Ms. Lintott leave the DA’s Office, there is the new nightmare of having her return, like a bad dream, as a judge. She'd send trimmers to San Quentin in a heartbeat.