There’s Substantial & Then There’s Substantial

“I hope you print the truth,” Mrs. Plowright said as this reporter left the courtroom.

I didn’t have time to ask what she meant by that remark, but I'll bet she thinks her son is seriously misunderstood.

The record shows that Thomas Plowright III was charged with a whole lot of drug-fueled crimes committed over a relatively brief period of time, including crimes against nature at the Plowright property on Nash Mill Road, Philo.

Not those kinds of crimes against nature — crimes against the natural world, sometimes called the environment. Defendant Plowright plowed up a blue line stream, Mill Creek, near Philo, that many people have labored long and hard to restore.

The sentencing of Mrs. Plowright's son, Thomas Plowright the Third,  postponed several times over the last few years, was again partly put off, and just why this thing has been delayed so many times, why Plowright has gotten so many breaks ordinarily not extended to Mendo defendants is, well, read on.

Mrs. Plowright was dressed in mourner's black. She sat in a matching black wheelchair. The whole family was in formal black, a funereal black, it seemed, sartorially appropriate in a Courthouse where signs warn people they can't show up to court in shower shoes and wife beaters.

The defendant’s dark suit was sadly rumpled, as if it was brought out of mothballs only for funerals and similarly gloomy occasions, of which this was one for Plowright III, but sadder yet for Mill Creek and the Nash Mill neighborhood.

First off, Mr. Plowright was kind of sentenced but not taken into custody. Under the new state sentencing guidelines, he got 44 months in the Mendocino County Jail because his multiple offenses are considered non-violent. Those offenses include possession of methamphetamine with a gun enhancement (nothing violent about that one), and two counts of receiving stolen property, namely two large pieces of construction equipment ripped off in San Jose.

The state attorney, Mr. Huey Long, no relation to Louisiana's legendary Kingfish, was unable to prove Plowright stole the equipment although it was discovered on Plowright's Nash Mill property.

And Plowright's mom is sick. Plowright's lawyer, Duncan James, a former Mendocino County District Attorney, managed to get jail day postponed so the defendant can look after his mom. The defendant is not without his virtues.

Mr. Huey Long of the State Attorney General’s office, who's prosecuting Plowright on some of his crimes, complained mildly that there were “a lot of people who want to see this thing go forward.”

All of Nash Mill Road and much of the Anderson Valley for starters. As would Fish and Game; Regional Water Quality Control Board; the State Water Agency; the Mendocino County Sheriff's Office; the California Highway Patrol; and Mendocino County Code Enforcement, all of whom were involved with Plowright's Nash Mill hijinks.

Plowright will be back in court on the 29th of June for a restitution hearing, a repayment plan for the owners of the stolen heavy equipment, depending, of course, "on how everyone’s schedules look."

In the meantime, we'll go back a few weeks to the sentencing of Bob Marino, who has been convicted of meth for sale and will do 11 months in the Lake County Jail then return to Santa Clara to face charges there.

“Was Mr. Marino a co-defendant with Mr. Plowright?” I asked Ms. Vargas, probation officer.

“Not exactly, but the cases are related,” she answered cryptically.

Plowright’s case was picked up by the Attorney General’s office because Plowright’s former attorney had been Mendo District Attorney David Eyster back before Eyster was elected DA. Eyster’s boss at the time, Duncan James, as mentioned, is himself a former Mendo District Attorney. James picked up Plowright's defense after Eyster's election when the Attorney General’s office was called in to handle the Plowright's prosecution.

State involvement in local matters is always a complicating factor leading to lots of delays and re-schedules because, well, without getting into it, our judges are far too indulgent in accommodating their fellow members of the bar, including the ones who ride in from Sacramento or San Francisco. The Mendo judges of yesteryear set dates and times and if you weren't ready, tough for you and your client. And we only had two judges up until about 1980. Now we have eight plus a magistrate, whatever he does, and the courts run like twenty miles of broken clocks.

Nobody, it seems, wants any of the details of this case to get out. Mr. Long is unapproachable in his late arrivals and hurried departures, and Mr. James has his client’s confidentiality to protect.

James fairly whispers in court, so only the judge can hear what he’s saying. Whenever I scoot up to the rail and bend my ear toward the proceedings, he moves away and lowers his voice. Judge Behnke, who is gifted with a sense of humor, can’t quite hide his smile as he observes these maneuvers from the bench.

For His Honor’s part, the judge speaks clearly into the microphone and sometimes crafts his sentences to include wry observations about the penny-arcade drama playing out before him. Judge Behnke came up with this one: “There’s substantial and there’s substantial.”

Prosecutor Long had said that Mr. Marino, Plowright's partner in crime, had a substantial amount of methamphetamine in his possession. Attorney James, who represents both Marino and Plowright, immediately claimed that the amount of crank Marino had been caught with was barely enough to satisfy Marino's own needs, even if it was substantial.

Behnke said, “Well, yes. There’s substantial and then there’s substantial. I find it surprising that a lot of very articulate people use this same term to mean very different things. But any way you shake it, 20 grams is a substantial amount of methamphetamine. What the courts are asked to do is determine if it was substantial enough that a portion of it was probably for sale, and I find that it was.”

At this, Mr. James remonstrated so hotly he could actually be heard for a change. He said that his client smoked so much meth that a pound of the stuff would barely last him a week. No one seemed anxious to contradict this astounding statement. But it follows necessarily, as a consequence of economics, that anyone who could indulge a habit of such proportions without selling some of it would have to be one of the scions of the Sam Walton clan, since the stuff costs $50 for an amount roughly the size of a pinhead. At a pound a week, the man would be burning up approximately the same amount of money Mitt Romney makes, $56,000 per day! ("And look like a potato chip in about a week," as an informal expert witness told me.) Of course, if these two tweekers, with no visible means of support, can afford to have the well-connected Duncan James represent them we can safely say they’ve sold a few bags of dope in their day.

So sure: There’s substantial and there’s substantial.

But it appears the idea was to get these guys into a treatment facility way back when. So off they went to see Pastor Jimmy who runs a treatment center in Chinatown. Pastor Jimmy has since died, but as Ms. Vargas, the probation officer, pointed out to Mr. Marino, “These clean and sober living programs don’t count for day-for-day credits against jail or prison time.”

And rightly so, since it turns out that Marino, and probably Plowright as well, had access to meth and other drugs while they were staying with the late Pastor Jimmy.

But back to Marino, who wasn’t free then, and isn’t free now.

“Mr. Marino,” Judge Behnke said, “the only issue I see is it’s a local county imprisonment — a lot of local time, actually, and this is about to become a problem.”

This is one of the first hints we’ve had that the new sentencing guidelines to relieve state prison overcrowding, these “realignment” chickens are coming home to roost in more numbers than the County henhouse out on Low Gap Road was intended to hold, even back when it was new. Now, with the black mold and other structural problems setting in, it's not going to be easy to house everyone the state says should do local time.

“…so I had some questions as to the imposition of the aggravated time…”

Judge Behnke was apparently counting beds, mentally. Before he registered any new long-term guests he needed to pause and consider. Like the concierge at a luxurious hotel, the judge had to make reservations for certain customers, or booking decisions, which may prove more exclusive than he would wish.

“…as opposed to the mitigated term…”

This is the box we’ve backed into with Realignment. Now, the judges are sentencing criminals according to space-available, rather than the severity of the crime. Maybe one of those corporate reservation websites like Expedia.com could take over the criminal courts.

“…I’m referring to the two years versus the three years,” the judge resumed. “We’re quickly using up the space we have and I don’t want to find, in a very short time, that we’ve put ourselves in a bind — which is the way it’s looking now.”

Mr. Long, the state attorney man, repeated that defendant Marino had committed two serious crimes while he was awaiting sentencing on the original charges he picked up with his pal, Plowright. “There was yet another serious meth case and then the domestic violence incident. Plus numerous prior felonies,” Long said.

“This is truly a case that warrants the aggravated term,” the state prosecutor added.

“You could certainly characterize his record as abysmal,” Judge Behnke agreed. “Especially with these felonies committed during the time he was out on bail awaiting sentencing.”

First off, all criminal sentences begin as hyperbole. If you get 30 days for drunk and disorderly, it’s really only an Irish holiday – two weeks in jail. It’s becoming a farce that every time somebody gets sent to jail or prison, you have to get out a pocket calculator and figure out how much time they really are going to do. Instead of sentencing a guy to 180 days, why don’t the judges just say 90 — or three months.

The fact is they’re more concerned about perceptions than justice, and it’s causing a muddle. A muddle that smart lawyers like James can use to get their clients off, and get them off again and again and again.

This is what James did for Bob Marino, and this is what he’s doing for Plowright. Not only are the sentences a farce, with only about half the time actually being imposed, but the credit for time already served gets doubled!

Judge Behnke said, “I’m in some danger, here, of confusing Mr. Marino’s issues with those of Mr. Plowright. But 22 grams is substantial by any sober definition — is anyone arguing it is not?”

“I would like to point out,” Mr. James said, “that my client was on parole for 14 years. He was successful, doing good; but, then, he got in trouble with that white powder. Now, I think the mindset with law enforcement is that 21 grams is a lot of meth. But it’s not. Most people smoke five or six grams a day. [!] And you’re not going to hear that from law enforcement. So, ‘substantial’ to me is more like a pound. That might be a week’s worth.”

Judge Behnke said, “It could go either way; if he’s convicted of the Santa Clara charges, it’s gonna go down. And I’m referring to the aggravated California Department of Corrections term. But in this current case I think the mid-term of two years is appropriate, so I’m going to sentence him to the mid-term locally.”

Thanks to realignment we’ll never know if the judge was considering his guest registry or the seriousness of the crime,

Judge Behnke said, “I was intending to remand Mr. Plowright into custody.”

In a soft murmur James went on at length about custody credits for time already served, first in Santa Clara County, then in the local slammer. I couldn’t hear much of what he was saying, but finally, he had Judge Behnke admitting that more time would be needed to sort it out. Then James brought up the issue of restitution and it was agreed that a hearing would have to be held in late June to figure it all out.

“Since some of the numbers are rather large,” James said, he wanted his client to remain out on bail in the meantime, to help him with the figures. Apparently, the neighbors of his mother’s property — that's the Nash Mill place — and the Department of Fish and Game all have large amounts of restitution due them for the large-scale marijuana and methamphetamine operations Plowright and Marino were conducting on a blue-line stream on other people’s property with stolen heavy equipment.

“Mr. Plowright had a series of adventures in the Bay Area waiting for this sentencing,” Judge Behnke said. “It had been my intention to remand him into custody today, but if I put it off until the restitution hearing we’ll have time to calculate his credits.”

Adventures?

The guy's a regular Huck Finn.