“Mr. Eyster’s sentencing brief resembled a lurid crime novel, your honor, and I need time to go over it with my client,” defense attorney Monty Hansen said to Judge John Behnke as the judgment and sentencing of Anchor Bay gunslinger Harry Miller got under way last Friday.
Miller had plead guilty to shooting one neighbor and firing four shots at another on the South Coast last year in a dispute over an easement that went very, very bad.
“After receiving the District Attorney’s brief around three o’clock yesterday afternoon and reading through it I realized that I need to ask for a short continuance; Mr. Eyster’s statements are factually inaccurate and misleading.”
Judge Behnke said, “It [the DA’s brief] is just argument, counsel; couldn’t he have just said the same thing you’re objecting to today without notice?”
“I don’t want to be accused of being ineffective counsel by not going over it with Mr. Miller, for whom this has been very stressful,” Mr. Hansen responded.
“That isn’t good cause, judge,” DA Eyster said.
Behnke pointed out that “We’ve been ensconced in this a long while, now.”
The judge was referring to the several stalling tactics the defense had deployed leading up to the trial date – a visit to two different psychologists for Mr. Miller, then a surprise fishing trip and class reunion for Mr. Hansen on the eve of trial and, finally, a last minute plea bargain, the charge reduced from attempted murder with the use of a firearm to attempted voluntary manslaughter, which was the likely outcome of a jury trial in any case.
“The result is the same,” Behnke said, “as if the defense got a better result at trial; those are the lesser charges: the voluntary attempted manslaughter [for shooting neighbor Paul Palestrini], the 12022.5 [personal use of a firearm], the assault with a deadly weapon [on Mrs. Palestrini] and, as a judge, that is what I’m going to sentence him to. The DA is going to argue that this was all planned and that the defendant armed himself for that purpose [to shoot the Palestrinis] – I don’t know that – but he [Harry Miller] used it [a Smith & Wesson .357 Magnum, nickel-plated snub-nosed revolver with a specially designed internal hammer for use in a coat pocket or other last-minute, close-range, circumstance where an ordinary hammer might get snared in clothing] for offensive purposes, and that’s what he pled to – which is serious enough.
“I understand that Mr. Eyster came up with a theory of the case, but Mr. Hansen you have been practicing law as long as I have, maybe longer, and you haven’t given me anything you can’t respond to – and, yes, it’s stressful for your client, I get that, but it’s stressful for the Palestrinis as well and I don’t find good cause for a continuance and I’m going to deny it.”
Judge Behnke mentioned all the letters he had received and read, the lengthy reports from the psych docs, the transcripts from the civil dispute over the easement which led up to the shooting, the “astronomical” medical bills – Santa Rosa Memorial alone had billed the Palestrinis $1.4 million, no numbers came to light as to the three other hospitals Paul Palestrini went to, nor yet the doctor’s bills – the $100,000 check the Millers had given the Palestrini’s Fort Bragg lawyer, Ryan Perkins, their Anchor Bay house going to the Palestrinis, with the commitment of the Millers to make several more mortgage payments, even though they are both going to prison, “economically devastated” – all this the judge said he was familiar with, including the probation report, which nobody was happy with, and Probation Officer Sandra Plaza apologized for, then Mr. Hansen began his sentencing argument, repeating what he’d already said.
“I received Mr. Eyster’s sentencing brief and I’m not going to go over it in detail, but it is filled with subjective opinion and reads like a fictitious crime novel, with Mr. Miller lying in wait to make a sneak attack, trying to goad Mr. Palestrini into inciting an assault so he can shoot him in some fictive assassin’s plot, all of it pure conjecture, not supported by the facts at all.”
“I made a very conscious effort, in my brief, to make sure everything I put in it was factual and documented. There was no ‘planning,’ no ‘professionalism.’ It all began with Mr. Palestrini telling the driver to dump the gravel on the water boards.”
The “water boards” were washboards or water bars in the gravel road, the disputed easement, made by the Millers (ostensibly) to drain the rainfall away from their house; the (perhaps) unintended effect was the same as any washboards, in that they rattled your car to pieces when you drove over them, so the Palestrinis had ordered a load of gravel to fill the “water boards” in.
“The gravel was dumped in at least two places to ease travel, and this was done in March, a drought year, but it worked and the water was drained away towards the ocean, and kept it out of Mr. and Mrs. Millers’ house. Mr. Perkins, the Palestrinis’ attorney, knew they weren’t supposed to dump gravel on the water boards and had emailed them to that effect. Mrs. Miller came out and pleaded with the driver not to dump the gravel there, but Mr. Palestrini was in the cab of the truck and told the driver to dump it there and he would deal with her [Mrs. Miller] later.”
“Mr. Miller wasn’t ‘lying in wait’ – he wasn’t even there. He came home and saw the pile of gravel. As he came walking along, we see Mr. Palestrini, to show how malicious he was, we see him turn over the Miller’s garbage can. Then here comes Mr. Palestrini telling Harry Miller to ‘get your effing hands off the truck'; and my client asks him not to use foul language, says he has to lean on the truck because of his back.”
Earlier, Paul Palestrini and Harry Miller had done a little chest bumping and Miller, getting the worst of it from the Brooklyn-born and raised Palestrini, had gone down and injured his back. The dispute escalated and Deputy DA Kevin Davenport filed charges against Paul Palestrini back then for willfully disturbing the peace and the Ten Mile Court issued a stay away order, which Miller said the Palestrinis ignored.
“Mr. Palestrini was getting angrier and angrier – judge, it wasn’t planned, it was a sudden event. Mr. Palestrini was on probation and shouldn’t have been there dumping gravel in the first place. What’s missing from the probation report is Dr. Neighbors’ opinion that my client was suffering from PTSD, and his background as a firefighter and EMT. She [Dr. Nators] did two interviews and determined that this event triggered his [Harry Miller’s] PTSD condition. It wasn’t a sneak attack, it was done in a sudden passion and that’s what reduces it from attempted murder to attempted voluntary manslaughter, a result we thought a jury would find, and that’s what he pled to, a plea we were ready to make on Day One.”
Mr. Hansen then said that if the DA was to have his way and Mr. Miller was sentenced to over 10 years in prison, that it may as well be a life sentence, since Harry Miller was already 70 and in such poor health he couldn’t be expected to survive that long.
In response to this dreadful prognosis the DA delivered some very welcome news, most welcome indeed, to those of us who live in fear of outliving our means; that is to say, getting too old to work and obliged to hit the streets for lack of adequate retirement provisions, unable to afford basic housing, let alone nursing homes and the like – that is, the good news is: the state prison at Vacaville, according to DA Eyster is “a top-notch facility” for the care of your elderly inmates. And keep in mind that correctional officers are paid decent wages with bennies, whereas the wage-slaves who work in retirement homes, nursing homes and the like are paid too little to give much give of a shit about the old fogies they have to take care of – we see it all the time, how these miserably paid workers just up and abandon the old folks in any emergency, or leave them laying in filth and misery for weeks on end in any case. Eyster probably didn’t intend his remarks to be an inducement for the elderly to commit crimes, but "a word to the wise," to quote my dear old Great Aunt Maude, God rest her soul, "should be like a birch switch to your ass."
DA Eyster repeated all his earlier beliefs about how the Millers had planned this all out to get rid of the – to their minds – “bullying” Paul Palestrini; and that, in short, “if your neighbor is putting gravel on the roadway you say thank you and hope he doesn’t send you a bill – you don’t try to kill him and his wife!”
Eyster derided the probation report, and took exception to it. Ms. Plaza fidgeted, not to say "squirmed," on the stand where she was stationed during the sentencing.
Judge Behnke used more tact in dismissing the probation report as inadequate – most notably, his honor didn’t repeat his usual formulaic remark about the exorbitant charge of $712 as being “worth every penny.”
“Probation’s evaluation of the case was not consistent with mine,” the judge noted.
The probation officer had not seen the video, the most important piece of evidence in the case. We don't know what was in the probation report (the officers are as secretive and stand-offish as foreign spies). but everyone agreed it was "inadequate, at best."
“Having seen the video many times over during the course of the trial [for Mrs. Miller, previous convicted for deleting some incriminating digital video clips], even though I knew the shot was coming I had a visceral reaction. And as to the attempted voluntary manslaughter charge, it’s hard to picture a more serious instance of the crime. Mr. Eyster has some theory of Mrs. Miller egging him [Harry Miller] on; I don’t know that. Was Mr. Palestrini trying to ‘tweak’ the Millers? Maybe. But is that a provocation? My answer is: No. The chest bumping in January was a bad thing, and Mr. Palestrini was on probation for one of the lightest offenses we have. But to me the provocation doesn’t justify the shooting. All of this militates against probation and points to denying probation.
“The defendant is 70 years old and his no criminal record. I give great weight to that. He is a Navy veteran and a retired Fire Captain with a good deal of community support. That he is willing to comply with probation, I do not doubt. Will prison be hard on him? Yeah, I think it will be. As for remorse, I couldn’t justify a finding that he wouldn’t be a danger to society… whether he armed himself for self-defense or decided in advance it really doesn’t matter to me in deciding not to grant probation.
“Was there criminal sophistication? I don’t see that. So I’m denying probation and before I set the terms – it’s now ten after noon – we’ll recess for lunch.”
As his wife wept bitterly in the arms of her daughter, Harry Miller was sentenced to 11 years and 10 months in prison; nine years and six months for shooting Paul Palestrini, one-third the base term for personal use of a firearm, which added one year and four months; the assault on Mrs. Palestrini was to run concurrent, and part of the deal was Harry Miller had to waive his appellate rights.
Mrs. Miller will soon follow her husband who was taken from the courtroom in handcuffs for transportation to the “top-notch facility” in Vacaville – although Mr. Eyster said that it would be up to Captain Pearce at the jail whether to send Miller to the Vacaville “facility” or the one in Sacramento, which apparently isn’t quite “top-notch.”
Really a well written brilliant article, on injustice between the lines.