Even In the Courtroom…

Darrell Elrod and Ms. Markien Willburn came to court tweaked last Thursday to argue that they were not tweaking last winter when Officer Cody Mason pulled them over in Willits on the longest night of the year, December 21st.

Any night in Willits, the redwood-free Gateway to the Redwood Empire, can be a steam-punk nightmare of rusting, post-industrial junk interspersed with strip malled fast food franchises and multi-colored plastic statuary. The visuals presented by the town can definitely be oppressive. Elrod and Ms. Willburn may have sought aesthetic relief in methamphetamine, a drug known to create enthusiasm for even the dreariest venues. But coming to court so loaded you can’t participate in your own defense, well, you don't see that every day in Ukiah's halls of justice.

Of course meth use has become so pervasive that tweakers don’t stand out like they once did, even in formal settings like a courtroom. And with the recent passage of Proposition 47, reducing possession of the stuff to a misdemeanor, meth heads now seem to feel their drug makes them as ordinarily visible as pot smokers and wine tasters.

So why all the fuss over coming to court on meth?

Actually, there wasn’t any fuss. No arrests were made, and only one tweaker, Mr. Elrod, was asked to leave the room – by his lawyer, Rana Parsanj of the Public Defender’s Office, not by the bailiff, Deputy Jeffery Courtney.

The Prosecutor, Deputy DA Maria Gershenovich, put Willits Police Officer Mason on the stand. The defense was hoping to suppress the evidence, and Mason would be required to show he had probable cause to pull Elrod and Willburn over. It would have to be something more credible than the fact that Elrod and Willburn look like extras from the new Mad Max movie. By that standard almost everyone on the road after dark in Mendocino County would be subject to arrest.

Officer Mason said he was on duty December 21st at 8:36pm, northbound on Main Street, when he saw a vehicle with no headlights on and one parking light out.

Gershenovich: “Were you alone in the patrol car?”

Mason: “No. I had a civilian ride-along with me.”

Gershenovich: “Did you enforce a traffic stop?”

Mason: “Yes.”

Gershenovich: “Did you contact the driver of the vehicle?”

Mason: “Yes – or, I tried to. I went to the passenger side of the vehicle, due to the traffic, and tried to speak with the driver to explain why I’d pulled him over, but the passenger and he were both talking over and interrupting each other and fidgeting with food bags from Burger King, making it difficult to understand anything that was being said.”

Gershenovich: “Did you ask him to step out of the vehicle?”

Mason: “Yes.”

Gershenovich: “Why is that?”

Mason: “Because I suspected drug use, and that he was driving under the influence of drugs. So I had him exit the vehicle and took his pulse, which was 106, and did a Romberg test.”

Parsanj: “Objection. Foundation, your honor.”

The lawyer for Ms. Willburn, Michael Anderson, of the Office of the Alternate Public Defender, said he would join in the objection.

Judge John Behnke: “Sustained.”

Gershenovich: “What is a Romberg test, Officer Mason, can you explain?”

Mason: “Yes. It’s part of a standard field sobriety test. You ask the subject to stand up straight with hands along his sides and both feet together, then tilt back his head, close his eyes and estimate the passage of 30 seconds.”

Gershenovich: “How did he do?”

Mason: “His estimate was closer to 40 seconds and I observed his eyes were fluttering rapidly. Also, his pupils were constricted to three millimeters and made little or no change when light was introduced.”

Gershenovich: “Did you form an opinion as to his drug use?”

Parsanj: “Objection, your honor. Foundation.”

Anderson joined in the objection and Judge Behnke sustained it. At this point, the officer had to recite his training in the recognition of symptoms associated with drug use. It’s one of those exceedingly tedious routines that lawyers and law enforcement officers never seem to tire of. Basically, it’s a formality. But it’s a time consuming and intricate Q&A with the other lawyers watching every move with an eye to make an objection, move to strike, or to find some inconsistency in the officer's recitation.

Bear in mind that the prosecutor, the officer and the public defender are all very young. The bailiff, who knows Cody Mason’s family, had last seen him in a stroller. Maria Gershenovich is the same age or younger; she's the newest addition to the DA’s Office; and Rana Parsanj could only be a year or two older. Michael Anderson, with his white hair and beard, looked like a grandfather by comparison.

So, in a way, it was training day. Mr. Parsanj would object at the slightest misstep, and Ms. Gershenovich would bristle with annoyance, but eventually they got through the foundation formalities. Meanwhile, the two defendants, Elrod and Willburn, were off in a world all their own, frantically tweak-whispering to one another while everyone else – the officers of the court, that is – were absorbed in watching the freshly minted new lawyers and rookie officer in their debut performances.

Gershenovich: “So did you form an opinion, Officer Mason?”

Mason: “I did, yes.”

Gershenovich: “And what was that?”

Mason: “That the subject, Mr. Elrod was under the influence of a controlled substance.”

Gershenovich: “Did you arrest him?”

Mason: “Yes, I did.”

Gershenovich: “Did you do a urine analysis?”

Mason: “Yes. It was positive.”

Gershenovich: “Did he tell you when the last time he’d used methamphetamine?”

Mason: “I believe he spoke to Officer Sidzek.”

Parsanj: “Objection, hearsay.”

Officer Sidzek had been called in to assist and there was a audio recording, parts of which Mr. Parsanj wanted to play. The part Parsanj relished was where Sidzek said, “Fuck it, let’s go get him!”

Judge Behnke told Parsanj he’d have a chance to play the CD on cross. In the meantime, Officer Mason told how he asked Ms. Willburn to step out of the car where took her pulse and gave her the Romberg test. Her pulse, he said, was 114 to 116.”

Gershenovich: “And what’s normal?”

Parsanj: Objection. Calls for an expert medical opinion.”

Behnke: “It’s fairly common knowledge. Overruled.”

Mason: “Sixty to 90 per minute.”

Gershenovich: “How’d she do on the Romberg test?”

Mason: “She opened her eyes after only 20 seconds and her pupils were constricted to two millimeters with little or no reaction to light.”

Gershenovich: “Did you form an opinion?”

Mason: “Yes.”

Gershenovich: “What was it?”

Mason: “That she was under the influence of a controlled substance?”

Gershenovich: “A urine analysis?”

Mason: “Yes.”

Gershenovich: “Was it positive?”

Parsanj: “Objection, calls for an expert opinion.”

Behnke: “Was this a nick test?”

Parsanj: “The court is helping the DA, advising the prosecution!”

Behnke: “I’m not advising anyone of anything. I need to know what kind of a test it was so I can rule on the objection. Go ahead, Officer, you can answer.”

Mason: “It was like a nick test. You just dip the test strip into the urine and watch it change color.”

Behnke: “Overruled. It doesn’t take an expert to read the test results.”

On cross Parsanj made much of the fact that in his report Officer Mason had said he first saw the vehicle Elrod was driving turn onto Main Street from Bechtel Creek Road, whereas the evidence of the fast food sacks suggested the two late night diners had just come from Burger King, about a mile away.

Parsanj: “So you followed for about a mile before you pulled the vehicle over?”

Mason: “Yes.”

Parsanj: “Then you made a passenger-side approach?”

Mason: “Yes.”

Parsanj: “Did you tell Mr. Elrod why you stopped him?”

Mason: “I attempted to but they both kept talking, interrupting me and each other.”

Parsanj: “At that point did Officer Sidzic arrive?”

Mason: “Yes.”

Parsanj: “Where did you learn to write police reports?”

Mason: “At the Willits PD.”

Parsanj: “Do you write everything down?”

Mason: “No.”

Parsanj: “Why not?”

Mason: “Because everything doesn’t pertain.”

Parsanj: “You said in your report they came from Bechtel Creek Road, but they said they came from Burger King, and they in fact had fast food from Burger King, didn’t they?”

Mason: “Yes.”

Parsanj: “Prior to asking Mr. Elrod to get out of the vehicle you made a decision to arrest him didn’t you?”

Mason: “Yes, I did.”

Parsanj: “And that’s because Officer Sidzek said, ‘Fuck it, let’s go get him,’ isn’t it?”

Mason: “No.”

Parsanj: “Your honor, I’d like to play the CD.”

The CD played and a voice which Mason identified as Sidzec’s said, “Let’s go get him, fuck it.” But there was a great deal of background noise from the traffic and it was hard to make out everything being said. The judge advised Parsanj that the lawyers are generally required to have a transcript made to go with audio recordings.

Parsanj: “So, that’s why you arrested Mr. Elrod?”

Mason: “Not because Sidzec said that, no.”

Parsanj: “Were you incorrect in your belief that the vehicle came from Baechtel Creek Road?”

Mason: “I was incorrect, yes.”

Parsanj: "Isn’t it true that Sidzec gave my client two choices, to either confess or go to jail?”

Gershenovich: “Objection. Hearsay.”

Behnke: “I need to know if the question is being asked for the truth of the matter.”

Parsanj: “It’s not, your honor.”

Behnke; “You can answer.”

Mason: “It sounds like something he’d say.”

The CD was played again and the Sidzek voice said, “If you lie to me I’ll take you to the County Jail, it’s as simple as that, because you could kill somebody if you’re out here driving under the influence.”

Gershenovich objected that it was difficult to understand what was said with all the background noise.

As all this lawyerly back and forth was going one, the defendants were apparently getting some kind of a flashback high from the recording and audibly chattering away at the defense table. The bailiff was unsnapping his handcuff pouch while glancing at the judge, anticipating an order to arrest the tweakers in mid-tweak. But the matter staggered on as the  two defendants providing a kind of meth muzak.

Parsanj: “Did you go in front of the vehicle, after the stop, to see if the headlights were on?”

Mason: “Absolutely not. I would never step in front of a vehicle I’d stopped on the side of the road.”

Parsanj: “So you never saw the front of the vehicle to tell if the headlights were on?”

Mason: “I did see the front and the headlights were not on – that’s why I pulled it over.”

The defendants were coming out of their skins, but rather than sic the bailiff on them, Judge Behnke called for a recess, during which Parsanj told his client, Elrod, to stay out of the courtroom. It's not easy defending a guy accused of tweak use who's sitting right there in full tweak mode.

After a hurried conference with the lawyers, Behnke said, “We’re going to have to get a transcript made of the audio recording, and both of the defendants appear to be under the influence of a central nervous system stimulant, so let’s put this over for a couple of weeks until June 18th."

It seemed awfully indulgent of the judge, but the jail is stuffed-to-overcrowded with so many tweakers that there simply isn't room for two more.

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Addendum: (We found this very interesting mini-bio of Prosecutor Gerschenovich on-line written upon her graduation from San Francisco State three years ago.) Driven by the persecution her family faced because of their Jewish heritage, Russian-born Maria Gershenovich knew that the fastest ticket out of Russia was to become an athlete or prodigy. She became a ballroom dancer and at the age of 14 was invited to join a dance studio in the U.S. Gershenovich left her family and moved to Seattle, where she danced competitively. After reaching her peak as a dancer, she came to SF State and majored in criminal justice. During a class about the American constitution, Gershenovich saw the contrast with her family's experience of injustice and was inspired to become a lawyer. She has completed internships with a superior court judge, a criminal defense attorney and the District Attorney's Office. "It's so different watching justice unfold in the courtroom compared to reading about it," Gershenovich said. She will begin law school at University of California, Berkeley this fall.