The phylogenetic morphallaxis of certain dendrophiles as they impinge upon the oscine avifauna specific to Little Lake Valley has caused considerable consternation among the more ecologically sensitive officers of the California Highway Patrol, and that consternation has spread into the local courts.
A dendrophile by any other name is just your generic Mendocino tree-hugger, and oscine avifauna is a fancy way of saying “songbirds,” but the case against Will ‘Red Tail Hawk’ Parrish, dendrophile and avian, is no joke.
The first local tree-hugger to turn into a species of the Parulidae family was Amanda ‘Warbler’ Senseman, who nested in a tree marked for destruction by CalTrans for months, delaying construction of the Willits Bypass for a certain amount of time, the length of delay depending on whatever number Caltrans spokesman Phil Frisbie plucks out of mid-air.
Then Will Parrish — a journalist, of all things — POOF! — turned into a “red-tailed hawk” (Buteo jasmaicensis) and flew up about 60 feet onto a piece of heavy equipment called a wick drain stitcher, where he went to roost for eleven days, further delaying the fabulous boondoggle.
Biologists say it is very uncommon for B. jasmaicensis to roost for such an extended length of time in such an unlikely place, but all raptor species are federally protected so the CHP officers couldn’t just shoot the hawk down off the wick drain stitcher and let the CalTrans contractors get back to work — much as they may have wanted to. The officers became very frustrated at the situation, and when they finally got their hands on his feathers, they showed the Hawk how they really felt, subjecting him to “pain compliance techniques” of unnecessary severity and duration, before charging him with a minor trespassing infraction.
Then, when our Hawk asked for a fair trial in response to DA David Eyster’s demand for outlandish fines, the DA retaliated by piling on a superfluity of charges, 16 misdemeanor counts in all. The Hawk’s defense lawyer, Omar Figueroa of Healdsburg, might have cried fowl, but yelled foul, and filed a motion claiming “vindictive prosecution” and the first installments of the matter were heard in Ukiah Superior Court by Judge John A. Behnke last Wednesday, September 11th.
At the appointed hour of 10 o’clock the courtroom was full to capacity of supporters for defendant Parrish, many of whom stood around looking for seats. There were no supporters for the prosecution. Even the trial deputy prosecutor assigned to the case was absent. Judge Behnke told his clerk Bonnie Miller to call the DA’s office and find out what where The People's rep was. Then in a more pleasant tone, he told the people who couldn’t find seats that they could sit in the jury box.
“But that doesn’t mean I’m going to let you make any decisions,” the judge joked to Parrish's partisans. A collective laugh relieved some of the tension.
Mr. Parrish, a man with a pristine record — that is to say no criminal record, at all — was facing as much as eight years in prison. He sat with his lawyer, Omar Figueroa, and his co-counsel, a Mr. Jimy Hu, at the defense table.
At length Deputy DA Matt Hubley and three CHP officers arrived and the hearing began. Judge Behnke said he had a total of four motions before him — the vindictive prosecution motion, The People’s opposition, and defense’s reply to the opposition. Deputy DA Matt Hubley wanted the motion to suppress to go first.
“What are you seeking to suppress, Mr. Figueroa?”
“Statements Mr. Parrish may have made to the arresting officers, your honor. I’ve requested them repeatedly, but the videos have not been turned over. So maybe we need to start with the discovery motion, and continue the rest through no fault of the defense.”
“I want to hear as much of this as possible today,” Behnke said. “Mr. Hubley, are you ready?”
Hubley cupped his elbow in his hand and curled his forefinger on his lips pensively before answering. “I’m trying to figure out the scope of things; I need to figure out where this is going.”
Behnke said, “Defense relies on prosecution to provide justification, but also defense has an obligation to point out what they’re trying to suppress.” He looked through his file and added, “I’m not seeing the first filing. Mr. Figueroa, do you have a copy of your initial filing?”
“I do, your honor. May I approach?”
The judge looked it over and said, “You allege this was on public property and on government equipment, but I don’t have any evidence. I want to know what the facts are in this case, but I’m also looking for what you’re trying to suppress. It seems pretty general… But, alright, let’s get started. Mr. Hubley, call your first witness.”
CHP Officer Scott Denham, a 28-year veteran, was sworn in.
Hubley: “On or about March 15th, where were you?”
Denham: “It was the 21st, I think.”
Hubley: “Oh. Do you have a copy of your report?”
Denham: “Yes.”
Hubley: “On page three, line 11… Yeah, that’s it. The arrest was on the 21st… so, starting over, what were you doing on March 21st?”
Denham: “Perimeter control. That was my assignment. At Gate One. That’s the southernmost access to the construction site.”
Hubley: “This was an active construction project? What were they doing?”
Denham: “Clearing brush.”
Hubley: “What did you observe?”
Denham: “My squad, when we got on scene, there were two protesters right in front of the gate, so we notified the commander who arrived and read them an order to leave. They refused and were arrested.”
Hubley: “You arrested them?”
Denham: “Just one. Will Parrish.”
Hubley: “Had you received any orders on how to deal with the protesters?”
Denham: “Yes, there had been a briefing that morning.”
Hubley: “Did you give the protesters any opportunity to leave before you arrested them?”
Denham: “Yes.”
Hubley: “After you arrested Mr. Parrish, did you interrogate him?”
Denham: “No.”
Hubley: “That’s all I have, thank you.”
Omar Figueroa began his cross: “Is your report complete?”
Denham: “Yes.”
Figueroa: “Is it true?”
Denham: “Yes.”
Figueroa: “Any changes you would make today?”
Denham: “The date wasn’t accurate. I’d change that.”
Figueroa: “Any other changes?”
Denham: “Not to my knowledge.”
Figueroa: “So you were working the public protest detail?”
Denham: “Yes.”
Figueroa: “What code section did you arrest Mr. Parrish under?”
Denham: “602, but it was later changed to 610.”
Figueroa: “Who was at the briefing you attended that morning?”
Denham: “About 80 officers.”
Figueroa: “Were there any papers handed out?”
Hubley: “Objection. Relevance.”
Behnke: “For the time being I’ll sustain the objection.”
Figueroa: “Isn’t this property owned by the people of California?”
Denham: “I thought it was CalTrans’ property.”
Figueroa: “Do you have personal knowledge of the ownership?”
Denham: “Just from the No Trespassing signs with the reference to the 602 code on it.”
Figueroa: “How big is the property?”
Denham: “About six miles.”
Figueroa: “Is the property fenced?”
Denham: “Partly.”
Figueroa: “And Mr. Parrish, where was he?”
Denham: “Right in the general vicinity of the gate.”
Figueroa: “Standing by the gate?”
Denham: “No, but I had seen him in there before.”
Figueroa: “In your report you wrote the No Trespassing signs are posted three to every mile?”
Denham: “Yes. But in the area I was at there were was only one.”
Figueroa: “You also wrote that No Trespassing signs were at the trails.”
Denham: “This is the information we were given?”
Figueroa: “Were you given a package of papers?”
Denham: “Yes.”
Figueroa: “Do you have one of those packages with you?”
Denham: “No. I didn’t keep it.”
Figueroa: “I see. Then when you got to the area, you observed a male and a female protester. What were they doing?”
Behnke: “Could you just clarify that for me?”
Denham: “It was a gate, but the fence didn’t start on either side of the gate, it was open on the sides.”
Figueroa: “I would ask that the other witnesses be excluded, your honor.”
Behnke: “Anyone present who is named as a witness in this case will have to leave the courtroom at this time.”
The other two CHP officers went out to wait in the hall so they couldn’t adapt their subsequent testimony to corroborate Officer Denham’s.
Figueroa: “Were you at the base of a tree-sitter’s perch?”
Denham: “That’s correct.”
Figueroa: “Was it The Warbler?”
Denham: “Yes.”
Figueroa: “What was the statement you read to them at that time?”
Denham: “I don’t have it with me.”
Figueroa: “Was that statement later destroyed?”
Denham: “No.”
Figueroa: “Is it at your office?”
Denham: “Yes.”
Figueroa: “Has that statement been changed?”
Denham: “I can’t recall what it said verbatim.”
Figueroa: “And you have no recording of it?”
Denham: “Uh, ho. The recording device didn’t work that day.”
Figueroa: “When did it quit working?”
Denham: “Right after the arrest.”
Figueroa: “Did anyone else try to make a video recording that day?”
Denham: “Yes, Officer Babcock did. His video disappeared also.”
Oh yes. Officer Babcock. The same guy who perjured himself in Judge Nadel’s court last year, swearing under oath that there was no video of his profanely psycho behavior during a traffic stop in Philo (Anderson Valley) when the judge and everyone else had just seen it played in the courtroom. If Babcock said the sun was shining outside you better stick your head out the window to see for yourself.
“My iCop [their personal video recorders] wasn’t working that day, judge.”
How many times have we heard of convenient malfunctions in court when exculpatory evidence or police misconduct is at issue?
Figueroa: “Can you tell us in essence what the statement was?”
Denham: “It starts off with the officer identifying himself, and then requests them to leave; if they refuse, they are arrested and force may be used if they resist.”
Figueroa: “Where was the officer when he read the statement?”
Denham: “Approximately 10 feet from Mr. Parrish.”
Figueroa: “Did Mr. Parrish say, ‘No, I’m not leaving’?”
Denham: “No.”
Figueroa: “How many chances was he given?”
Denham: “I dunno…maybe 15 minutes. Sgt. DeVrie arrived and read the statement. It seemed like it took about 10 to 15 minutes.”
Figueroa: “Could it have been more like five minutes?”
Denham: “These are just estimations.”
Figueroa: “Who made the decision to arrest Mr. Parrish?”
Denham: “Sgt. DeVrie.”
Figueroa: “Did he resist?”
Denham: “No, he was very cooperative.”
Figueroa: “Nothing further.”
Hubley: “How far was Mr. Parrish from a lawful place?”
Denham: “I’d say 30 to 40 feet.”
Figueroa: “Was he interfering with the construction crew?”
Denham: “No.”
Hubley: “Where was the lawful point?”
Denham: “On the other side of the highway [101].”
Figueroa: “Yes, but is there not an easement that citizens can walk on?”
Denham: “This has nothing to do with the shoulder — he was on the property.”
Figueroa: “But it was posted at the fence, correct?”
Denham: “Yes, just in the general vicinity.” Denham glared at Figueroa, then at Hubley, then looked pleadingly up at the judge.
Behnke: “Can this witness be excused?”
There was no objection, and Officer Denham stepped down.
DDA Hubley called his next witness, CHP Officer “Hoss” Hosford, an 18-year veteran: “Where were you on the morning of April 2nd at approximately 07:25 hours?”
Hosford: “I was working with the arrest team on perimeter control duty at the south entrance. Some dispersal orders had been given and people started to cross the roadway. They were met by CHP officers.”
Hubley: “At the gate?”
Hosford: “Some were; some on the side of the roadway.”
Hubley: “Where were you allowing them to congregate?”
Hosford: “On the side of the roadway. Several had crossed and been intercepted by CHP officers.”
Hubley: “Was the defendant one of them?”
Hosford: “Yes.”
Hubley: “By you?”
Hosford: “By the officers who intercepted him.”
Hubley: “What did you do?”
Hosford: “Two officers had him. I arrived and arrested him.”
Hubley: “Any orders read?”
Hosford: “Yes, a dispersal order.”
Hubley: “To Mr. Parrish?”
Hosford: “Yes.”
Hubley: “Did he leave?”
Hosford: “He did not.”
Hubley: “So you helped arrest him?”
Hosford: “I was physically in charge. He pulled away from me so he was taken to the ground.”
Hubley: “How many of you did it take?”
Hosford: “There were three others. I don’t know who they were. I had his left arm. I used some wrist techniques and subdued him.”
Hubley: “Was he resisting?”
Hosford: “At that point he had no choice but to cease resisting.”
Hubley: “After the arrest, did you interrogate him?”
Hosford: “No.”
Hubley: “Nothing further, thank you.”
Figueroa: “You wrote a report?”
Hosford: “I did.”
Figueroa: “How many pages?”
Hosford: “I don’t know. Five.”
Figueroa: “Is it true?”
Hosford: “As far as I know.”
Figueroa: “Anything you’d change, now?”
Hosford: “Not at this time, no.”
Figueroa: “You also wrote a probable cause declaration for the arrest?
Hosford: “Yes.”
Figueroa: “Did you record your arrest of Mr. Parrish?”
Hosford: “I didn’t.”
Behnke: “So it was not recorded?”
Hosford: “I don’t know, sir.”
Figueroa: “You and these other officers arrested Mr. Parrish?”
Hosford: “Yes.”
Figueroa: “Do you know who they were?”
Hosford: “No.”
Figueroa: “Where they CHP?”
Hosford: “Yes.”
Figueroa: “Can you describe them?”
Hubley: “Objection. Relevance.”
Behnke: “Sustained.”
Figueroa: “What was the purpose of your detail?”
Hosford: “Perimeter control.”
Figueroa: “On private property?”
Hosford: “Yes.”
Figueroa: “But this property belongs to the State of California, doesn’t it?”
Hubley: “Objection. Calls for legal knowledge beyond the scope of the witness’s expertise.”
Behnke: “Sustained.”
Figueroa: “Now, you went to Highway 101 south of Walker Road, and were on the east side of the road…”
Hosford: “I was standing there, correct, and Mr. Parrish was on the west side, crossing 101.”
Figueroa: “You were allowing them to congregate there — why?”
Hosford: “I don’t know.”
Figueroa: “When you first saw him, was he trespassing then?”
Hosford: “He was in the middle of the roadway, which is not allowed.”
Figueroa: “Yes, but had he finished crossing?”
Hosford: “He crossed and was intercepted.”
Figueroa: “How?”
Hosford: “They walked up to him.”
Figueroa: “Did they put hands on him?”
Hosford: “Eventually. They stood in front of him. I don’t know what was said at that point. I was 20 feet away looking at them.”
Figueroa: “Can you describe the confrontation?”
Hosford: “They put hands on him, he struggled and went to the ground.”
Figueroa: “Then you went to assist?”
Hosford: “Yes.”
Figueroa: “Was he screaming?”
Hosford: “I don’t recall that.”
Figueroa: “How did you help?”
Hosford: “I put hands on him and told him he was under arrest.”
Figueroa: “On the roadway?”
Hosford: “Yes.”
Figueroa: “Is that private property?”
Hosford: “No.”
Figueroa: “So what property was he trespassing on?”
Hosford: “He refused to leave the area.”
Figueroa: “So was he arrested for trespassing or refusing to leave the area?”
Hosford: “Both.”
Figueroa: “Were there any administrative officers there?”
Hosford: “There were so many, I can’t recall… There were captains, lieutenants, sergeants… I can’t remember how many.”
Figueroa: “In your report you said you helped remove him from the roadway…”
Hosford: “Correct.”
Figueroa: “For trespass?”
Hosford: “Correct.”
Figueroa: “You told him he was trespassing?”
Hosford: “I told him he’d refused to leave. Then I placed him in a control hold. I bent his wrist behind his back.”
Figueroa: “Is that a pain-compliance technique?”
Hosford: “That it is.”
Figueroa: “How long did you administer the pain-compliance technique?”
Hosford: “It must have been at least a couple of minutes or more.”
Hosford grinned and blushed with mock modesty as the crowd gasped and shuddered. A burst of applause couldn’t have pleased the witness more. Hosford nearly stood and bowed.
Figueroa: “Did Mr. Parrish squirm all this time?”
Hosford: “Yes, that he did.”
Figueroa: “In pain?”
Hosford (with a lofty smirk): “I have no idea.”
Figueroa: “Did he appear to be in pain?”
Hubley: “Objection. Relevance.”
Behnke: “How does this relate?”
Figueroa: “Fourth Amendment violations, your honor. If he’s squirming in pain all this time…”
Behnke: “I get it. Continue.”
Figueroa: “Did he ask you to stop?”
Hosford: “I don’t recall.”
Figueroa: “You had to use significant force?”
Hubley: “Objection. He already answered it.”
Behnke: “Sustained.”
Figueroa: “You said he was trying to pull away — which direction was he pulling? He was surrounded by CHP officers, wasn’t he?”
Hosford: “Yes.”
Figueroa: “Yet you say he pulled away; he was resisting? Did he punch? Did he kick? Was he trying to get his hand away?”
Hosford: “He couldn’t. Other officers had ahold of him.”
Figueroa: “Did you put handcuffs on him?”
Hosford: “It took a while. When he’d stopped resisting, I did.”
Figueroa: “In the roadway?”
Hosford: “Yes.”
Figueroa: “Then he was dragged off?”
Hosford: “We had several officers pick him up and carry him off.”
Behnke: “Start this over, I don’t understand. When you laid hands on him, he was in the northbound lane of Highway 101?”
Hosford: “Yes, sir. The defendant came all the way across when the other officers intercepted him. By the time I got there they were back on the roadway.”
Hubley: “And Walker Road — is that kind of a country road?”
Hosford: “Yes.”
Hubley: “And that’s where he was when told to leave?”
Hosford: “Yes, by all the brass-hats that were standing there.”
No wonder the first few months of the project cost the state over $1 million in CHP overtime — with over 80 regular officers and scores of big brass standing around milking the clock just to watch the arrest of one guy.
Hubley called CHP Officer Ty Lewis to the stand: “July 1st, 0800. Where were you?”
Lewis: “On duty. My assignment was to remove all trespassers. There was only one. Mr. Parrish had been in a crane for the past 11 days. He was brought down by the CHP SWAT team. I then took custody of him.”
Hubley: “How many CHP officers were there to assist you?”
Lewis: “There were at least 46, if I remember correctly.”
Hubley: “What did you observe?”
Lewis: “The SWAT team went up in that thing, that bucket, I dunno know what it’s called. One of ‘em read a dispersal order. Will had one of those sleeping dragon-things, a piece of pipe cut and welded in a V-shape so he can put his hand in there and lock it down to the crane.”
Hubley: “How did they extricate him?”
Lewis: “They had a metal saw and they cut the tip off the sleeping dragon, made some other cuts, and removed it.”
Hubley: “Did they do it safely?”
Lewis: “Yes. They covered Will’s hand with a wet cloth so the sparks from the saw wouldn’t burn him.”
Hubley had some pictures of the sleeping dragon and the judge wanted to examine them. So Hubley took them up to the bench, then resumed: “After Mr. Parrish was removed from the crane, you took custody of him?”
Lewis: “Yes.”
Hubley: “Did you interrogate him?”
Lewis: “No.”
Hubley: “Did he make any statements to you?”
Lewis: “Uhh… lemme check my report…”
Hubley: “Go ahead.”
Lewis (shortly): “He asked us if we’d carry him over to the car. I advised him we wouldn’t. He’d have to walk.”
Hubley: “So you arrested him for trespass.”
Lewis: “He resisted and delayed with the sleeping dragon, so I arrested him for that too.”
Hubley: “Nothing further, thank you.”
Figueroa: “You wrote a report?”
Lewis: “Yes.”
Figueroa: “How many pages?”
Lewis: “Five.”
Figueroa: “Is it true?”
Lewis: “Yes.”
Figueroa: “Accurate?”
Lewis: “Yes.”
Figueroa: “Complete?”
Lewis: “Yes.”
Figueroa: “Anything you’d change today?”
Lewis: “…No.”
Figueroa: “Did you participate in a briefing that morning?”
Lewis: “Yes.”
Figueroa: “You and 46 other CHP officers?”
Lewis: “Yes.”
Figueroa: “Were you given any papers?”
Lewis: “I don’t recall.”
Figueroa: “Were you given any instructions?”
Lewis: “Yes, that Mr. Parrish was up in a crane and we were told that if he refused to leave I was to arrest him.”
Figueroa: “Why you?”
Lewis: “Because I live here, in the area, and wouldn’t have to come back for court.”
Figueroa: “Who made the decision to detain him?”
Lewis: “One of the CHP SWAT team members.”
Figueroa: “Which one?”
Lewis: “I don’t know.”
Figueroa: “Where were you?”
Lewis: “About 50 yards away.”
Figueroa: “And Mr. Parrish was 50 feet up?”
Lewis: “Maybe more, but I could see ’im alright.”
Figueroa: “How close was the SWAT team when he attached himself to the crane with the sleeping dragon?”
Lewis: “He did it when they started up in the bucket. I don’t have the exact time for you.”
Figueroa: “Did you hear the lawful orders read to him?”
Lewis: “Not exactly, no. It’s not in my report, either. They could word it a zillion different ways.”
Figueroa: “According to your report Officer Ramsey made a video tape recording of the event. Is that true?”
Lewis: “Yes.”
Figueroa: “Have you reviewed that video?”
Lewis: “No, I’ve not.”
Figueroa: “Do you know where those videos are?”
Lewis: “They should be in evidence.”
Figueroa: “How long did it take?”
Lewis: “About one-and-a-half hours.”
Hubley: “I’m going to object.”
Behnke: “Why would that matter?”
Figueroa: “It may be a prolonged detainment, your honor. The statement, as I understand it, was made while the officer was taking him to the car.”
Behnke: “…alright.”
Figueroa: “He was released into your custody, Officer Lewis. How?”
Lewis: “They took their handcuffs off, and I put mine on him.”
Figueroa: “Did you tell him which code section you were arresting him under?”
Lewis: “I don’t recall.”
Figueroa: “Did you read him his Miranda rights?”
Lewis (impatiently): “Of course I read him his rights!”
Figueroa: “And he made a statement; what you describe as a spontaneous statement. Are these statements in your report verbatim?”
Lewis: “No, it’s my recollection; as best I can remember.”
Figueroa: “Is it fair to say that your memory has faded?”
Lewis: “Yes.”
Figueroa: “You testified that he said, ‘Would you carry me to make it more dramatic’?”
Lewis: “That’s my recollection.”
Figueroa: “Was he being dramatic?”
Lewis: “No.”
Figueroa: “Did you use pain-compliance holds on him?”
Lewis: “No.”
Figueroa: “Did SWAT?”
Lewis: “I can’t answer for them.”
Figueroa: “When he asked to be carried, he’d been up in the crane for 11 days on a forced hunger strike. Did he appear fatigued?”
Lewis: “Not to me.”
Figueroa: “How far was the walk?”
Lewis: “About 50 yards — wait, I take that back. We took him to the medical team first to get checked out. They looked at his wrist and said he was fine.”
Figueroa: “One more question: How long did it take him to get into the sleeping dragon?”
Lewis: “About 10 seconds.”
Behnke: “Okay Officer Lewis, you can step down. Now, in reference to the missing videos, have any of those been discovered?”
Figueroa: “One has, and I have repeatedly asked but…”
Hubley: “I contacted CHP to get everything. I asked Mr. Figueroa to come to my office later today so we can get that sorted out.”
Figueroa: “We would ask that the discovery motion stay open until we have everything, your honor.”
Behnke: “There’s a motion to continue the trial, and the undiscovered evidence should be made available to both sides before we start, so I find good cause to continue the trial; and there’s no point in arguing the motion to suppress until defense gets the videos — that’s not unreasonable. But we should hear the motion to dismiss and the demurrer… and we can do that after the lunch recess. But before that I want you two to meet and confer on a trial date. I’ll advise you that this court has a heavy trial schedule, just so you’re aware, in the coming months, with an assault on a fireman in October and a murder trial in November. These are expected to be lengthy trials, so there’s the heads up on that.”
After the recess Judge Behnke said, “We were about to discuss the motion to dismiss on the grounds of a vindictive prosecution; Mr. Figueroa, are you ready to proceed?”
Mr. Figueroa deferred to his co-counsel, Mr. Hu: “We believe prosecution indulged in vindictive prosecution. They added 15 charges when Mr. Parrish exercised his right to a jury trial. Notably, the District Attorney never addressed the 248 [resisting arrest], under penalty of perjury.”
“A rule of court covers that,” Judge Behnke pointed out.
“As for the 555 [trespassing],” Hu said, “the statute doesn’t really require that the prosecution make a separate charge for the act every day.”
“But,” the judge noted, “it doesn’t prohibit them from doing that either.”
His Honor read some legal scripture and concluded, “It doesn’t affect the DA’s discretion. You say the burden is on the DA to justify his filing, and you cite Borden, Kershaw, Twiggs and others, but it would seem, from my reading of those cases, that you’d have to show actual vindictiveness. So, there’s a lot of new charges, but essentially, they’re all the same 555 charge. Are you making the argument that the DA should let it go away softly?”
Mr. Hu said, “I understand your point, your honor. But as for the 148, if the People really believed there was evidence for that they should have filed it at the time.”
Behnke said, “I wanted to see some evidence why the DA filed more charges when the defendant chose to exercise his constitutional right to a jury trial — a right we all hold dear, if you will — not only a right here in California, but a right anywhere in the United States. You cite Twiggs and we can go into more detail later, but I want to hear from the prosecutor.”
DDA Hubley, in his usual thoughtful pose of standing with his elbow in his palm and his fingers curled before his face, said defense had requested an increase in the severity of the charges, because the original charge of an infraction did not rate a jury trial.
“So increasing the charges was initially a request from defense,” he said, repeating the obvious, backing and filling.
More likely it was, “We're tired of these people. If we don't make some serious hay out of minor irritations they grow into major infections. We could have every tree hugger in the state up here if we don't crack down.”
The judge said, “I was kinda surprised that the DA filed so many, though. But looking at the statutes it was, well, after the gloves come off… The Supreme Court says the courts shouldn’t be involved with the DA’s charging, but still…” Judge Behnke looked pointedly and perhaps impatiently at Hubley, drumming his fingers tersely on the bench, giving the signal for the prosecutor to set sail and get under way.
Hubley said, “The court took a lot of my arguments away from me…”
“I didn’t mean to,” Behnke said.
“When it [the original charge] was filed, it was in the social context of what was going on in the community,” Hubley continued. “But when the defendant rejected the offer and insisted on a jury trial, we considered the massive amount of time it took, and the way he [Parrish] resisted. The jury is free to accept or reject our position, but when the case was elevated to a misdemeanor, the other charges were thrown in — in that context. Complaints can be amended up to the time of trial. This was done in an eight to ten day period; it’s not about leverage; it’s not about anything but following the 555 code. So we have the discretion to do that. There is a pseudo threat, in cases more extreme than this, that if you chose to exercise your trial rights we can do that. And under the circumstances — I’ve never seen a case elevated from an infraction to a misdemeanor by the defendant; it took a lot of people off guard.”
Behnke said, “At one point the DA chooses not to file the 148; then when the defendant asks for a jury trial, he files it. Why is that not vindictive?”
“The way Mr. Eyster decided the case, initially, he was showing some restraint. But when the defendant made his choice for trial he no longer felt he had to show restraint. It may highlight the danger to the CHP officers up in the crane,” Hubley speculated vaguely. “It was so costly in resources and dangers to the CHP. It goes back to Twiggs on prosecutorial vindictiveness when all the cards are on the table.”
Behnke said, “In deference to that argument I made the same analogy, but I was having a little trouble with the fact that in a trial de novo you don’t go back and start on what happened in the first trial; you start over. Looking at Twiggs a little more carefully…” The judge put on his eyeglasses and studied a book momentarily, then continued: “…in the context of plea negotiations, the defendant said he wanted a trial and then they [the prosecutors] hammered him with Kentucky’s habitual offender act. The court reasoned there was no element of retaliation… Mr. Parrish was free at the outset to take the deal from Eyster and he rejected it and wanted a trial. But I’m suspicious, now that I’ve heard what happened out there. The DA offered a light way of approaching this, I can’t get into his motivations and I can’t prove vindictiveness.”
The judge took off his glasses and said, “I don’t find it a big deal whether the defendant has one count of 555 or 50 counts of 555. It’s a misdemeanor, and I’ll treat it that way. The defendant was trying to make a social statement, and I’m not sure the number of counts is going to have any impact on the penalty, if he’s convicted. But the Supreme Court is clear that they don’t really want the courts interrogating the DA on why he charged this or that — it would wreak havoc on the system. I appreciate the issue, but the motion is denied.”
“Thank you, your honor,” Mr. Hu muttered.
Behnke granted the demurrer, but the reasoning escaped this reporter. It had something to do with “conjunctive and disjunctive cures” of law. Then Behnke asked about the discovery issue.
Behnke: “Did you get it solved, Mr. Hubley?”
Hubley: “We’ll get the material and turn it over. It will take a week or two to get everything we need.”
Behnke: “Did you settle on a trial date?”
Figueroa, not as confident as Hubley that he’d get the videos on time, suggested they come back in two weeks, after he had the materials; then set the trial date. This plan was agreed to.
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