Double & Triple Jeopardy

You can’t be tried twice for the same crime in this fine, fair country of ours, the envy of the world for its just legal system. Unless. Unless you're Matthew Graves.

Although Graves had been acquitted by a fair and impartial jury a few years ago, he is now being re-tried for that crime both in federal court in San Francisco and in the Superior Court of Mendocino County.

Graves' crime?

Leasing property to a dying man who also happens to be a legitimate medical marijuana patient, a cancer patient, the first ever person to have been recognized by the DEA as a legitimate cancer patient, and therefore entitled to legally grow and use marijuana under the California Compassionate Use Act.

A resident of the Laytonville-Leggett area, Graves' first go-round in Mendocino County saw him acquitted by a jury that found Judge Henderson's bias against Graves and his lawyer, Keith Faulder, so egregious the jury came back for the defendant, and came back so fast they made it clear that they didn't like the judge's interference in a matter they were supposed to decide.

The medical marijuana patient who leased land from Graves is Christopher Hulliger. He's become something of a poster child for medical marijuana — the actor/director Ben Saddler is currently making a documentary about Hulliger’s life and times. The guy is a tough, resilient citizen that the legal system wished would hurry up and die.

Hulliger leased property from Matt Graves, planted a crop of meds, and very soon the Mendocino County Major Crimes Task Force scooped up Matt Graves for violating his probation.

Graves was on probation for one count, the single count out of a laundry list of allegations he was charged with — that of being a felon in possession of a box of bullets which were found in a shop when the original bust took place back in 2010. True, having a box of bullets and a criminal record is a relatively minor offense, as these things go in Mendocino County, but the judge, failing to hang Graves on everything else the Laytonville man was accused of, had ordered the harshest terms for Graves’s probation, one condition being that Graves must countenance no cultivation on his property. The pretext for arresting Graves, you might say, was bullets and bullshit.

Every day the courts, even when they find someone guilty of illegal marijuana cultivation, don't rescind the defendant’s right to grow marijuana legally under local ordinances.

The plan to get Graves this time was to find Graves in violation of his probation, and send him to jail, and the way the DA went about it was to file a petition with the court to revoke the probation. The alleged violation occurred in 2012 when a probation search found Hulliger’s plants on a piece of property he leased from Graves. And the box of bullets. Over the course of the past year and a half the petition to revoke Graves’ probation and toss him in jail has been filed, and subsequently dismissed, and refiled, twice.

This most recent attempt to jail Graves would be the third re-file. A felon only gets three strikes, and he’s out, but the DA gets as many strikes as the umpire feels like giving him, and while the umpire, Judge John Behnke, was at first loathe to let the petition be filed again, and refiled on and on into eternity — or as many times as it takes to get this man — he at last relented and sided with the DA — who happened to be on a junket to some place more pleasant than a courtroom and not able to proceed against Graves, Mendocino County's eternal defendant.

“If the roles were reversed,” defense attorney Keith Faulder noted with more good humor and equanimity than most lawyers would have been capable of in the circumstances, “that is to say if I had gone to some seminar and the DA was ready to go forward with the case…”

Mr. Faulder did not have to finish. Judge Behnke was already chuckling at the thought of how DA David Eyster would have been the very picture of indignation if the defense was a no-show. (Eyster does indignation better than anybody we've seen in the County Courthouse, and the very mention of Graves sets him to vibrating faster than any other defendant in recent memory.)

Certainly the DA has a stable full of competent prosecutors who were not invited to the golf course seminar with the boss, so why couldn't one of these worthies step in to handle the Graves crusade? But none of Eyster's lieutenants seemed eager to take on Faulder and Graves in the boss's absence.

Deputy DA Heidi Larson, who ordinarily takes on child molesters and the other sordid stuff that Mendocino County seems to generate out of all proportion to its small population, was serving as Duty Officer in Eyster's absence, handling all the routine matters that usually take up most of a courtroom’s daily docket.

But the Matt Graves case went a peg or two over the pay grade of said Duty Officer, so Ms. Larson excused herself to run down into the engine room of the good ship Mendo Justice to retrieve Deputy DA Scott McMenomy, a senior trial deputy who had quietly sidled out of the courtroom, having just finished up with one of his own cases.

While Ms. Larson was on the hunt for the elusive McMenomy, Judge Behnke joked that Mr. McMenomy would perhaps appear with an earphone, much like the one that had been used by the quarterback in a recent NFL game — the defeat of the Niners by the goddamned Seahawks being prevalent in everyone’s mind that day.

It is well understood in the courts that DA Eyster handles all marijuana cases himself.   Pot generates a lot of side income for Mendocino law enforcement via Eyster's innovative approach which, in brief is: Pay a fine commensurate with the value of the dope we caught you with and you get probation and tiny misdemeanor. Refuse to settle and we'll max you out, punk. But Graves is in a pot class by himself. He has special significance for local, state and federal authorities. They're all after him.

So, given the magnitude of the Graves matter, it was unlikely that any deputy prosecutor would much relish the chance to handle it without Eyster’s direct input. In fact, a great many prosecutors have left the DA’s office of late, under a variety of curious circumstances, leaving a hungry crew of greenhorns, just out of law school, pawing and neighing, champing at the bit to get at Mendocino County's criminal class, aka Fish In A Barrel. But not the fish called Graves. He's in his own barrel. The cops blast away at him without a direct hit.

Faulder responded to the judge’s comment that if an NFL analogy was in order, Mr. McMenomy would probably punt and wait for Eyster to jog back on the field at quarterback. Faulder then mimed the casual and successful kicking of an imaginary football, much to the amusement of the gallery. There was a smatter of applause, which led to a little jig and then a courtly bow: “We’re not on the record, are we, your honor?”

“We are.”

McMenomy was nowhere to be found, and there was no answer at his home or cellphone. Ms. Larson made repeated attempts to reach him, even after she returned to the courtroom.

No luck, alas.

Consequently, the considerable onus of handling this already onerous Graves case came smashing down on Ms. Larson, whose first instinct was to dismiss it with the intention of refiling it, yet again, when Eyster was present.

But Behnke, noting that the petition had been refiled so many times already, said that he was reluctant to grant the motion again. And then Faulder started sawing his violin to a similar tune, and singing a sad lament about how his witness, Mr. Hulliger, had come all the way up from Los Angeles for the umpteenth time — Mr. Hulliger being a cancer patient who couldn’t fly from his home in LA due to his physical condition — but must drive, and since he was unable to fly due to his poor health, had had to drive the considerable distance — in short, that the court would be unduly burdening the defense if they were to refile at a later date.

As noted, the Matt Graves case is called regularly in the County Courthouse. But lately it's always postponed because everyone is waiting to see what the federal court in San Francisco is going to do with Graves. Recently, however, word got out that the federal court was stalling, too, waiting to see what the Mendocino County Superior Court would do with Graves.

All this for a pot grower while every day in Mendocino County our police forces are sorting out the social chaos caused by methamphetamine.

Mr. Hulliger told this reporter that they were both — the feds and the local DA — stalling their cases, one against the other, in hopes that they could stall until he, Hulliger, the crucial witness, should, in the fullness of time, and the natural course of these things, die of his cancer. However, Hulliger has escaped the grim clutches of Stage Five pancreatic cancer by — he asserts — injecting honey oil directly into his pancreas.

There is a great mystery concerning how it came about that the DEA moved on Matt Graves — the who, what, where, when and why of the bust being top secret at DEA HQ. And until the case goes to some sort of hearing or trial, it will be hard to tell if Graves really is having his constitutional protections against double jeopardy violated.

One of Graves’s close neighbors up there in Laytonville's lawless outback is Phil Frase. Frase was Suspect Number One in the death of a pot trimmer in Siskiyou County, a woman whose body was found in the river with the head trauma also suffered by unfortunate fellow associated with Frase name of  Schmidt. Schmidt's body was found by cadaver dogs on Frase's property next door to Graves. Frase successfully pled self-defense in the Schmidt dispatch, and investigators in the Siskiyou murder scratched Frase's name off their suspect list.

I see Frase quite often around town and on the bus; he’s a friendly, personable fellow, and presently a student at Mendocino College. His first order of business when he got out of the County Jail after lingering there for two years while his unique proximity to mayhem was sorted out, was to get a restraining order against Matt Graves. Frase makes no secret of his dislike for Graves. He says that some of the Graves family has taken over his  property and that they grow marijuana on it.

“It’s a fairly common coincidence,” an undisclosed source informed your trusty correspondent, “that a cut-and-dried case will entirely evaporate shortly before a really big fish gets caught.”

It would be interesting to see if Mr. Frase is on the witness list in the case against Graves in federal court.

Where was I?

Oh yes, Deputy DA Larson returned to report that McMenomy was unavailable to take on the latest Graves re-file.

Judge Behnke asked, “When is the federal case going to go to trial?”

“It is set for sometime in May, your honor,” Faulder replied. “But it may not go even then.” (And is unlikely to go foward if defense witness Hulliger is still alive.) “My witness (Hulliger) is here today, your honor, and we’re ready to proceed.”

Behnke, “We could take the testimony from your witness today, and finish up some other time when the DA is here.”

Ms. Larson didn’t like that idea, as she would have to cross-examine the witness, and risk the DA’s displeasure if she screwed up. She pointed out that the defense was given notice that the date would have to be changed “because of the DA’s absence.”

“The DA’s notice to the court was filed yesterday, your honor,” Faulder said.

“It was the 22nd,” Larson insisted.

“Yes, but we didn’t get it until yesterday,” Faulder said.

Behnke said, “I’m speculating that the federal issue amounts to a violation of the probation, anyway.”

“No it doesn’t your honor,” Faulder replied. “Because Mr. Graves was not on probation at the time. The probation resulted from my client being found guilty of possessing ammunition. The probation was instated after the trial. A felon in possession of ammunition was all he was found guilty of.”

Behnke read from Judge Henderson’s ruling: “I’m going to specifically prohibit you from possessing or growing any marijuana on your property or allowing others to do so…”

Behnke then turned to the probation officer: “What about you, Mr. Locatelli? You don’t have a dog in this fight, do you?”

“I do, in fact,” Locatelli asserted. “We are in agreement with the ruling from Judge Henderson, that he [Graves] can’t cultivate marijuana on his property, period.”

Of course Graves wasn't cultivating medical marijuana on his property, Hulliger was on property leased from Graves.

“Waiting for the federal government to complete a trial doesn’t seem prudent,” Behnke observed. “If he allowed someone to cultivate marijuana on his property he’s in violation of his probation. It puts Ms. Larson in a bad spot, but I’m not inclined to allow the DA to refile, so either cut bait or fish, as Judge LaCasse is fond of saying.”

“I’ll get Peter Hoyle down here right now,” Larson said, picking up her cellphone. She left the room, punching in the number, her heels clicking and her skirt snapping. As Ms. Larson departed a chill came over the room, even though the ambient temperature in Ukiah was in the freakishly low, drought induced, 70s.

Playing the Hoyle card was a bluff as it turned out. Hoyle is Mendocino County's most famous lawman, and a formidable witness, able to leap past most local attorneys a single verbal bound. Larson returned shortly to announce she’d talked to Mr. Eyster instead and the DA told her to dismiss the petition and he would refile it when he got back.

The terminally ill witness had made his painful way from Los Angeles for nothing. Graves and his defense were ready to go. But because the DA was off somewhere justice was again delayed.

The local apparatus will do whatever it takes to nail Graves, but when it comes to prosecuting a well-placed Ukiah physician like Peter Keegan for murdering his wife, Ukiah's Westside resounds with cries of, “My god! Peter was my family doctor. He couldn't have bludgeoned Susan to death,” the DA does a slow fade. Fact is, the Keegan death certificate says “Homicide,” and there were two people in the house, Mr. Keegan and Mrs. Keegan. Mrs. Keegan did not survive the night. How can Mr. Keegan not be prosecuted?

“If the petition to revoke has been dismissed, I’d like my client’s probation reinstated, your honor,” Faulder said. “he’s almost completed it.”

This request was granted and after Faulder and Graves and Hulliger had left the room, the judge looked up and said, “Oh, there you are, Mr. McMenomy. All ready to proceed on the Angelo Want matter?”

“Yes I am, your honor.”

“Linda Thompson for Mr. Want, who is present and in custody. After lengthy discussions with my client we’ve decided that there would be substantial risk if Mr. Want were to proceed with the preliminary examination, so we’ve agreed that the DA will add a count five, assault with a firearm, to the charges and he will also plea to the theft and the possession of a gun by a felon, as well as admitting the special allegations — which includes a nickel prior, doubled as a strike, for a total of 12 years and four months in the state prison. Then there will be the violation of probation for eight months more; then in the other case, the 2800.2, the reckless evasion of a police officer, he’ll be entering a no contest plea for the two to three year mid-term, which will run concurrent.”

Behnke asked, “Is this in the interest of justice?”

“That’s right, your honor,” Mr. McMenomey agreed.

Having had the County’s Chief Public Defender do his job for him, McMenomey busied himself putting his files in order.

“We’d also be asking for a time waiver for judgment and sentencing, you honor,” Thompson added.

In other words, after agreeing to every thing the prosecution asked for, let's speed this thing up and get Want on the Quentin bus next time it rolls out Low Gap.

“As I understand it this adds up to 12 years and four months and the additional eight months comes out to 13 years and the felony vandalism charge will be dropped if he agrees to be responsible for restitution… The 245(a) constitutes a second strike and there is a 20% limitation of his credits… Mr. Want, you already have one strike and this plea will make it two, do you understand that?”

“I do, your honor.”

“Do we have a factual basis for the plea, Mr. McMenomy?”

“Yes, your honor. On July 6th of 2012 the defendant Angelo Want approached the victim, Mr. Cordova, and assaulted him with a firearm, discharging it at him.”

Ms. Thompson said, “We’ll agree that he struck Mr. Cordova with the butt of the gun.”

“So the violation of probation in admitting these other charges adds eight months?”

“Yes, your honor,” Thompson said.

“If he has a strike — and now he has two strikes — why isn’t it doubled?” asked Behnke

“A strike does not attach to a violation of probation.”

“Is that right, Mr. McMenomey?”

“That’s right, it’s a straight eight months.”

Thompson said a Probation report wouldn’t be necessary, but the judge wanted one, anyway. He said, “What’s happened up to this point should be memorialized in case Mr. Want commits another felony while he’s in prison or after he gets out.”

Sentencing was set for April 11th at 1:30 in Department B.