You Call This A Defense?

The Public Defender’s Office in this county doesn't do much to earn their nice salaries. A recent letter in the AVA from a man at the jail complained at length about how lazy the County-paid lawyers are, and there's plenty of evidence he's right. The PDs call the people they defend their “clients,” as  if their “clients” had voluntarily walked in off the street. The clients have no choice in who represents them because they have no money. The result is a lot of defenses ranging from shabby to non-existent.

The boss lady once defended a client right into life in prison without the possibility of parole. That kid was 19. Even the DA was begging Thompson to plead the kid out. She wouldn't, and off he went for the rest of his days while his two confederates got twenty years, although one of them will have to prove he's not nuts to get out.

What Linda Thompson, the boss lady, and her sockless staff do is publicly defend their clients over to the DA’s office where they accept whatever deal the DA offers them. If they don't take the deal their “client” is doubly doomed. The DA's staff will take them into court and beat them like stray dogs, and PD's clients will get double the time.

Fortunately for most publicly defended Mendo “clients,” the DA isn't one of these psycho Republicans who wants everyone locked up for a long time. He's reasonable and fair. But he might as well be the Public Defender, too, because he does both jobs.

The sockless lawyer our letter writer was stuck with would be a guy whose casual attire is a comment on his enthusiasm for his job. And his supervisor, who unfailingly appears in men's suits. No male public defenders have yet appeared in heels and lipstick but it's coming.

Used to be you at least had to look serious in court, and your job performance was at least evaluated, but anymore…

“This is America,” one of the public defenders told me in defense of his shoddy workmanship. “And like everything else, you get what you pay for.”

As OJ proved for all time and Mendocino County proves every day.

But what this lawyer gets paid is really quite good. And here he is taking the County’s money and living rather elegantly, driving a BMW, dining in upscale eateries, and wearing fashionable clothes, and all the while treating his clients as though he was a volunteer, working to defend these poor souls for free.

Certainly, there are those who use their public defender’s to fight DUIs whereas anyone working for a living would just cut their losses and take the consequences. And these types are a burden on the County. But to my knowledge nobody has ever beat a DUI with a public defender. Chief Public Defender Linda Thompson, the boss, had one last week that should have been laughed out on to State Street, but the boss, of course, took it all the way into court, the joke being on the taxpayer.

It was a prelim for Steven Green, who had backed his sister’s car into a ditch, after she — the sister — had expressly forbade him from driving it. Ms. Thompson put her investigator on the case and brought in two witnesses (whom the judge didn’t believe) and the sister (who the judge did believe) and lost the case. If Thompson takes this all the way to trial, having lost so dismally

in the prelim, I’m afraid the Public Defender will have to be recalled, even if it does offend the Ellen Degeneresque sensibilities of the Valley of the Dolls.

Here are a few more examples of how shamefully lazy the public defenders actually are. (Lazy, and cheap, I might add. The other lawyers all buy the AVA from me and sometimes pay in advance for two or three issues. The public defenders buy one or two on credit and then cross the street in heavy traffic to avoid me on payday.)

Here’s what usually happens. You are brought into court in chains and put in the dock. The public defender is appointed, and this person, now your lawyer, goes up to the bench and gets from the judge a copy of the complaint. Without even asking your leave or any form of introduction the lawyer then says, “We’d like to enter a plea of not guilty and set this for jury trial.”

A trial date is set, and you the defendant go back to the jail. You try to call your new advocate to see what he knows that you don’t — what he has planned and what’s going to happen to you — but you can’t get through.

A public defender will never take a call from the jail and never returns a call from the jail. Weeks go by, while you sit in the dark worrying, then you go in for a pre-trial conference — completely blind as to what’s up with your case — only to be told in a hurried whisper that the DA has made an offer. A little charade of activity is put on for your benefit, and your lawyer tells the judge, “This case may resolve, your honor, if we can put it over for a few more weeks. I just need some time to go over the terms with my client.”

This sounds hopeful: You’re going to go over something with your lawyer, finally. But it never happens. He never calls, and he never answers or returns your calls.

You go back to the jail just as much in the dark as you left it and try again to call your lawyer. Sorry, he’s not in, and never will be in to the likes of you. He’s permanently out to lunch on the money the County pays him to provide you with your constitutional right to competent counsel.

Next time you go to court, you try to say something to the judge, but the judge says, “Talk to your lawyer about it; you may incriminate yourself if you say anything to me.”

This scrupulousness is part of the charade that the system isn't rigged against you.

Your lawyer tells you to take the deal (you don’t even know for certain what the deal is), because it’s the best he can do for you, having done nothing. So there you are, standing there stupidly saying you understand although you understand nothing, nodding yes sort of automatically and waiving all your rights, and off you go into “the system.” Then it’s back to the jail, and all you’ve had is a few hurried and hushed words with this lawyer who you are beginning to feel is not on your side.

Again, you try to call: Not in, sorry. No call back, of course. Maybe he didn’t get the message. Maybe they didn’t take the message. What goes on in the PD’s office is top secret, and security is tight, for good reason, than at the DA’s office.

This is what it looks like on judgment day. The probation office has written a pro forma report and recommendation on what should become of you; he will have sent a copy to your lawyer, and your lawyer will then skim through it, feeling like he’s wasting his valuable time, just as they’re fixing the noose around your neck. He might see something in the report, or he may not, because he always says the same thing anyway: “Your honor, we’d be asking for the mitigated term…” (A lot of these probation reports are so poorly done that a reputable judge would hurl them back in the lazy faces of the people who wrote them, but if the various cogs in this fake procedure started behaving as if the system has to work the way it says it works, the whole show would collapse like a tired souffle.

If anyone anywhere along the line has asked your side of the story, you have a rare jewel of a public defender. More likely, your lawyer has been “too busy.” He’ll complain about his caseload, the number of clients he has been assigned to defend, whining that all of them need his time and attention as much as you do, you ingrate.

Consider Mr. Ryan Silva. His lawyer was Dan Haehl, the oldest, most experienced lawyer in the PD’s stable of shuffling fashion plates. Everybody’s in court, the judge, the DA, the probation officer — everyone but Dan Haehl, Silva’s lawyer. On the most crucial day of Mr. Silva’s life, his lawyer — his only hope — is nowhere to be found.

Haehl finally lumbers into the courtroom, acting mighty put out, as if he were being imposed upon and not the other way around. His tardy appearance having put the DA and the judge in a sour mood will not improve your prospects, Mr. Silva.

Haehl fumbles through his disorganized files where he finds Silva’s folder, which he hurriedly scans. Then he announces he's ready to go forward with the judgment and sentencing. You get the distinct impression that Haehl doesn't know Silva from Hi Ho Silver.

Judge Ann Moorman says she had read the probation report and recommendation for three years in prison and is ready to go with that recommendation.

Haehl suddenly comes to life. “I just don’t get it, your honor. The probation report has inconsistencies from the original, back in November of 2011. The previous report recommended that Mr. Silva only get two years; now, Probation comes back saying they want three years. Mr. [Timothy] King [of the Probation Office] is asking for the aggravated term. The whole flow of this thing, ever since Mr. Silva returned from Boise, is going toward prison and, well, I just don’t think …well, I don’t know why they should do a thing like that. Mr. Silva’s a nice man; he’s trying to do the right thing. He had a little problem with meth resulting in large part from his wife committing suicide, and it all turned bizarre. He got out of jail and was going to go into a VA-sponsored drug treatment program but Mr. King wouldn’t accept it. He  (Silva) wandered off to Idaho, not keeping in touch, and got his feet under him again, living with a woman, and trying to get into a program. He’s done a lot in terms of revitalizing himself… he seems to be a really nice fellow…”

Mr. Haehl beamed at his client as though he’d just been introduced, which was very likely the case.

“Maybe his substance abuse problems made him seem distant from reality in the past, but he appears more in tune with things now and I see a likelihood he could come out of this a better person. He was living up in Idaho, doing pretty good, and he turned himself in to get this taken care of. I honestly just don’t get it, your honor.”

Maybe you’d get it if you read all the reports on this guy, Dan.

DA David Eyster did get it, and he'd done his homework.

“We keep playing the same old cards, over and over, judge. This is a serious case, not merely a meth case, and not everyone believes his wife’s death was a suicide. Mr. Silva was more involved than he is willing to admit and certain people want it prosecuted as a homicide, but I’m not going to get into all of that today, except to say that’s why he went off to Idaho. He had gotten out of jail on a strike offense and was supposed to go into treatment, but he does absolutely nothing. He ignored the Salvation Army program and would now have the court believe Mr. King was to blame. And I absolutely bristle when he says he surrendered up in Boise. When he got pulled over the officer told him he needed to contact California, and what does he do? Absolutely nothing. But by now I’ve got my investigator tracking him, so he calls Mr. King and says ‘why are you bothering me? I’ve done nothing wrong — leave me alone’ and the next time he gets picked up we get on the phone and tell Boise we want him back.”

Judge Moorman said she remembered something about the original offense, something to do with a car burning in downtown Potter Valley.

“Yes, judge. He torched a car with a propane tank. He’s a danger to society and a flight risk. Mr. Silva doesn’t do what he’s supposed to do. He was told if he didn’t follow the rules he would go to prison. He got out of jail on the promise he’d do all these things and went to Idaho, instead. So I’m asking the court at this point to sentence him to the three year aggravated term. This is a strike offense and I have an interest in his coming and going.”

Haehl, blushing like a man who had just discovered he’d entered a crowded room with his fly open said, “I wasn’t privy to what happened in Idaho. Mr. Eyster has conveyed that there was a lot more going on than I was aware of… I know a propane bottle was involved at some point, and I think it was an older Subaru, a total loss as I recall, but not a newer car, and not of any great value, although I suppose it may have been of significant value to someone occasionally living out of a motel in Potter Valley…”

It didn't seem to occur to Haehl that his remarks were not helping Mr. Silva.

Eyster continued, “He was not living an open life up in Boise, as counsel suggests. And it is absolutely not true that he was trying to get into a program and turn his life around.”

Judge Moorman said, “I do recall this case. And I recollect that Mr. Silva got a huge opportunity at the original sentencing in November of 2011. Not only was he allowed to remain at liberty, but he was supposed to get day-for-day credit at a substance abuse treatment program — but he left; he left immediately, and we would have never heard from him again but he was picked up in Boise 15-16 months later and, to me, that is someone who doesn’t deserve to go back on probation. I find his behavior very flippant — egregiously so! No, to my mind he is definitely not a candidate for probation. I’m gonna find him ineligible for 1151(b) and sentence him to the California Department of Corrections and Rehabilitation because I do think the factors of aggravation outweigh the factors of mitigation. It’s clear to me the crime involved great violence and there was a threat of great bodily harm — the witness said the propane tank was lit, making it an explosive device used to burn this person’s car — which was completely destroyed. And he did all this while he was on probation. And the item [the Subaru] did have significant value to the person who owned it. There is a possible mental health condition regarding his wife’s death…”

The judge fell silent and her face clouded somewhat as she considered the remarks Eyster had made about the possibility of Mr. Silva facing murder charges. Finally, she resumed: “Therefore, I find the aggravating circumstances outweigh the mitigating circumstances. I’m going to sentence him to the three years and remand him into CDC at this time.”

Not that Silva particularly seemed to deserve a vigorous  defense, but that’s what public defenders get paid to do by the County — defend the indefensible.

Mr. Haehl had another client whose case he hadn’t bothered to learn much about. This was Austin Merritt, who was due to be sentenced for a sexual encounter with a 14-year-old girl, his girlfriend’s little sister. It appeared that young Mr. Merritt had lured the kid sister into what the French call a menage-a-trois, three persons in one bed doing the old in and out. Merritt had done the old in and out with the underage girl, his probation officer Ms. Monica Plaza said, just after he’d gotten out of a mandatory sex offender’s rehab program, stemming from a previous sex crime.

What did Haehl have to say about this?

“Your honor, we live in an age — and I’m not saying it’s right — when young people become sexually active at a much younger age than many of us are used to. These young people, they just start a lot younger these days. But anyway, your honor, this was a stipulated sentence, agreed to by both parties, and my client was under the impression that he would not have to register as a sex offender, so…”

Judge Moorman said, “He will have to register as a sex offender — that is imposed at my discretion, and I’m going to impose it, so if you need to consult with your client, Mr. Haehl, please do so and find out if he intends to withdraw his plea.”

In the meantime, the case of Derrick Hallback was called. Young Mr. Hallback came to court with his father, a former probation officer himself, and currently a bail bondsman in Florida. Mr. Hallback also had a letter from the University of Michigan, who wanted him on their football team. He had previously played for Fresno State where, in his father’s words, “he’d been sold a dream.” (The kid's obviously a big time ballplayer if he's headed for Michigan.)

The dream was a common one in Mendocino County: You can get rich selling marijuana. So he got busted in a Ukiah motel room with 10.5 pounds of O.G. (old gangster, a strain of indoor pot common in Mendoland). His father had come to get his son and take him home and put him back on the right path, which would require getting his probation transferred back to Florida.

To this end, Mr. Hallback senior had hired defense attorney Katherine Elliot. Apparently, the son had somehow got three ounces to Florida, and Ms. Elliot thought the probation office was making too much out of this by asking for jail time, when Dad himself was here to take control of his son.

But DA Eyster didn’t agree.

Eyster said, “I don’t think they gave too much weight to what happened in Florida, where three ounces is considered a felony. And Dad can’t be there all the time. So I would be against the no-jail-time arrangement. A message needs to be conveyed here.”

Ms. Elliot said, “My client’s father would like to address the court, your honor.”

Mr. Hallback stood and said, “I’m embarrassed to be here, your honor, and I certainly do not condone my son’s activities here in California. I had wanted to come here on vacation and that’s all been ruined by this mess he’s gotten himself into. But I would like to tell you that he’s not like this; that someone has sold him a dream — a dream which is untrue — so I am here to ask the court for mercy. If I can get him home I can get him back on track and back to work mentoring kids, teaching them sports, which is what he was doing before he left home and came out here and someone put this dream in his head.”

Judge Moorman said to the young defendant, “Well Mr. Hallback, I didn’t read the report and come away with the impression that you were a bad person, but this kind of conduct is not excusable and it is going to have a significant impact on you. Somebody may have told you that marijuana is legal here — it is not. From the amount of marijuana and the amount of money involved, we are going to structure this so as to be a reminder to you that this kind of thing will not be tolerated. But I’m going to cut you a little break because of your father; he is obviously concerned about you and since he is a bondsman and a former probation officer I feel I can believe him when he says he’s going to get you back on track. I’m going to suspend imposition of the prison sentence and place you on probation, but I am going to impose the 60 days — that will be only 30 days here, Mr. Hallback. And you are to go directly to probation when you get out and keep in touch until your probation is transferred to Florida. And you are to have no marijuana while you are on probation, do you understand?”

He understood.

Mr. Haehl was back by then to tell the judge that young Mr. Merritt was willing to register as a sex offender, but that since he lived with his mother close to a school it would be an imposition. (Sex nuts aren't supposed to live near schools.) Also, Merritt had no driver’s license which would make it difficult to get to the mandatory Saber rehab program for sex offenders.

Judge Moorman said, “He’s not going to be subject to the 1000 yard stay-away requirement for the school — I can change that. But he is going to do this Saber program — I feel more strongly about that than the jail time. I think he poses a risk to the community and I think this Saber program has a good track record, so something will have to be done about that. This is a rigid program; they are good at what they do. So if you want to talk…”

Haehl consulted further with his client, learned his mother was present and that she was willing to drive her son to the Saber program. Merritt was sentenced to 180 days in jail and ordered to go to the Saber program; also he was to register as a sex offender and initiate no associations with any female persons under the age of 18 — with the exception of his own sister — he was to have absolutely no contact with the girlfriend’s sister — and he would have to provide a DNA sample.