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The Empty Seat Defense


Richard Bolton, Jr. made no attempt — no pretense at all that he was growing all that pot for medical purposes when it was obvious he was growing for tax free cash, and the Mendocino District Attorney still couldn’t get a conviction.

Why not?

Musta been some big-money pot lawyer defending the guy, eh? Somebody like Omar Figueroa or E.D. Lerman? Maybe even the legendary Keith Faulder?

Not even close. The DA’s case was hamstrung by none other than the most highly unlikely pot lawyer in the county, the arch conservative Al Kubanis, rebel flag necktie and all.

Folksy as Matlock in his seersucker suit, retro as Archie Bunker in his opinions, and smug as Donald Trump in his politics, the jury smiled indulgently at Mr. Kubanis’s serial courtroom antics, patiently endured his client’s on-the-stand rambling rationalizations of all the compelling evidence against him, and finally — at least a third of the jury — refused to convict a fairly cut-and-dried case of cultivation of pot for sale and profit.

How did ol' Mr. Suave (Al is in his late 70s) pull it off?

He used the Empty Seat Defense.

The trick is used in civil lawsuits — point to an empty chair, to a non-party, someone not named in the suit, and say, “He did it!”


Al Kubanis does a lot of lawsuits and so he has some experience in the empty chair strategy, and it must have seemed quaint, to put in kindly, to DA David Eyster, when he realized Kubanis was going to use it in a criminal case.

The empty seat in this case was the more or less fictitious Mr. James Horn. Horn did it, Al said, not my client, Mr. Bolton Jr. Kubanis nearly popped out of his seersucker when he told the jury it was the prosecution’s responsibility to find the true culprit, that elusive Mr. Horn, the true culprit, and bring him in to exonerate Mr. Bolton Jr.

DA David Eyster rightly said he had no obligation to track down Horn. It was defense’s responsibility to subpoena the theoretical Horn if defense attorney Kubanis wanted Horn to testify.

The accused, Richard Bolton, Jr., Kubanis said, was a hard working young man who didn’t trust banks, which is why he had bricks of bundled cash laying all over his Brooktrails house totaling more than a hundred thousand dollars.

“My client saved this money,” Kubanis insisted. “But he didn’t trust banks. Why? Because banks can fail, and my client had learned this from his grandfather who had lived through the Great Depression.”

Commercial pot growers in the region don’t use banks either — not because banks failed during the Great Depression, but because large cash deposits invite the suspicion of law enforcement and the IRS.

Defendant Bolton, a prodigy of multi-tasking, said he does all kinds of off the books work, hence all that handy cash. Bolton said he worked as a logger, remodeling contractor, landscape architect, firefighter and “lots of other things.” (Mendocino County has more "contractors" than structures.)

Most Mendo juries are not fooled by the usual fronts for commercial pot growing operations, but defense attorney Kubanis appeared to be completely taken in by his own client. He seemed to think the guy he was representing was a libertarian, an anti-government guy just like him.

It's difficult to account for Kubanis’s dropped-jaw credulity. He has somehow lived here in Narco Central all these years and has hardly any idea at all what’s going on with the pot business. He boasts, for instance, that he never reads the AVA and has greeted the editor with a merry, "What's new with Marxism, Bruce?" He characterizes the local dailies as the "liberal press." He was convinced, for instance, that pot was selling for $12,000 per pound in 2014. When Judge Ann Moorman asked him if he meant $1200 (which was more accurate) he thought she was trying to take over his case, and became sullen and resentful. It was comically pathetic, and I know from private conversations with him that he thinks Senator Joe McCarthy was America’s greatest statesman. Al's favorite vacation spot is in the heart of Mormon Utah where he admires the conservative populace as much as the colorful scenery.

There are people confined to mental institutions more in touch with prevalent realities than this guy.

What Officer Peter Hoyle of the Task Force found at the house where defendant Bolton claimed not to be living was 50 pounds of processed bud, $105,000 cash, personal mail, clothing, containers of body-building supplements, and all the stuff Bolton needed for visits from his 18-month-old son, such as a crib, diaper bag (full of bundled money), changing table, baby wash and shampoo, even the kid’s new social security card.

But Bolton didn't live there. This other guy, Horn, was the householder. Bolton had rented the place to him. All that stuff must be Horn's.

Bolton said that being a hard-working guy he just didn't have the time to get his personal stuff out of the house before Horn moved in. The dope and the cash must be Horn's. Kubanis argued that Bolton's on-the-go absences were the reason his wife had left him, too, and Al Kubanis made much of that.

“She’ll be sorry for that, ladies and gentlemen of the jury. Imagine: A man who works — actually works — in Mendocino County. In Mendocino County! Ha! I bet she wishes she had him back now, don’t you?”

Kubanis might be surprised to learn that thousands of Mendocino County people are honestly employed, and might be doubly surprised to learn that it's not 1955 among the female sectors of the population.

The jury had been so assiduously weeded [sic] by Eyster during voir dire that it was truly as prim a little garden of bourgeois visages as a prosecutor could wish for — not a groovy guy gray ponytail or hemp shawl in the bunch. These were mainstream citizens from good neighborhoods, not a bunch of narcotized riff-raff.

The jury seemed amused by Kubanis’s casual slurs of that part of the County population that was not them.

Then there was the rental agreement. The final page, the one with the alleged signature of the mysterious Mr. Horn on it. Yes, Mr. Horn. All this medical marijuana and big lumps of cash were Mr. Horn's, the renter, the phantom tenant.

But the rental agreement with Mr. Horn was missing, as absent as Mr. Horn himself. Musta mislaid it. Well, what about the first month’s rent? Oh, that — hasn’t paid it yet — not due until the month is over.

That one left Eyster temporarily robbed of speech, and it took the demonstrative DA a moment to recover. When his head stopped spinning Eyster resumed.

“You mean to tell me that you don’t collect the rent until after —?”

“Doesn’t everybody?”

“Ladies and gentlemen,” Kubanis interjected. “My client isn’t a lawyer, he doesn’t know these things. He can’t be expected to know all the ins and outs of a rental agreement.”

Right, Al, only a lawyer can decode a rental agreement.

The only indication at the house that James Horn, the alleged renter, even existed was a pink slip for a Toyota, which had been signed over to Bolton. This was explained by Bolton as Horn's security deposit. When asked why it would be left at the house where Horn could get it, and Bolton couldn’t — since Horn, rather than Bolton was supposedly living there — Bolton said he trusted Horn. Fine. Then why a deposit at all? These were the kinds of circles Bolton led Eyster on during cross.

“What about the 15 day notice from PG&E? If you were supposed to pay the utilities, why is this at the house?”

“He [Horn] would just bring it to me and I’d pay it.”

“What about the water bill, the shut off notice on that?”

“Same thing.”

“Then why, if he was supposed to bring them to you, why were they still at the house — you paid both, didn’t you?”

“Yes, I had to, or they would’ve shut me off.”

Then why are they at the house — if you weren’t living there?”

Again, defense pointed at the empty seat, the missing man, the mysterious Mr. Horn: “Ask him.”

Besides the 50 pounds of ready-to-sell pot, there was more pot growing out back, and more in the garage — 92 plants in all. The cops had a Google Earth photo of pot growing there the previous year, in 2013, before the rental agreement came into play.

“Explain that, Mr. Bolton.”

“I was gone, working up in Briceland.”

“Where in Briceland?”

“I don’t remember, it was out on a dirt road somewhere.”

“So somebody just moved into your house and grew pot while you were gone?”

“I don’t know.”

There was a Bobcat tractor, a little earthmover, on the property. Bolton said it wasn’t his (yet the DA had pictures from facebook of him and his kid driving it). There were raised beds in the back, made of 2x12 lumber, and these beds were full of growing pot plants. A shopping list with 2x12 lumber on it was found among Bolton’s things. Bolton said the lumber on the list was for a job he had done at a casino. Did he have any receipts from the job? Nope, nothing. Just his word that he'd done the work.

In closing Kubanis said, “My client’s an honest man, a hard-working man, but he procrastinates. He doesn’t always get things done on time. But you can tell he’s honest by the way he testified and it’s not our fault Horn isn’t here — they could have found him — and we didn’t pick this case — they did. Judge, isn’t it time to take a break? What about the jury? Don’t you need a break, ladies and gentlemen? I know I sure do…”

The judge and jury had no interest in taking a break, so Kubanis plowed on, and started a free association spiel about when he was a kid and remembered looking at the globe and seeing that the British Empire was all in red and wondering… “We were a colony back then [!] and we got their system of law and we flourished and became the richest country in the world because we have the presumption of innocence and my client is entitled to leave if they [pointing a shaky finger at Eyster and Hoyle] can’t prove my client grew that pot — and we don’t have to fill the empty seat — they do! So this case can be dumped right there [still pointing at the DA and the legendary Hoyle]! Thank you.”

These closing remarks were totally batshit, and even Kubanis seemed to know it, so it was probably something of a shock, even to Kubanis, when the jury came back with three voting for acquittal on the possession and four for acquittal on the cultivation — a hung jury; a mistrial.

Eyster immediately re-filed the case, issuing the following press release:

HUNG JURY: On Thursday, Oct. 8 a mistrial was declared today after a jury returned from its deliberations and announced it was unable to reach agreement on the two felony counts that the 12 jurors had been tasked to decide. Richard Lee Bolton, Jr., age 31, of Willits, is charged with possession of marijuana for sale and cultivation of marijuana in 2014 at his Brooktrails home. The foreman announced that the jury was split 9 for guilt to 3 on the possession of marijuana for sale count, and 7 for guilt to 5 on the cultivation charge. Because the jury could not reach a unanimous decision on either of the two substantive counts, it did not deliberate on the special finding of whether the defendant was armed with firearms at the time of the commission of the two offenses.

The prosecutor who presented the People's evidence at this week's trial was District Attorney David Eyster. The investigating law enforcement agency was the Mendocino Major Crimes Task Force. Defendant Bolton's case was immediately reset for new trial to be heard in front of a different jury on January 25, 2016.

Anybody who may have information about defendant Richard Lee Bolton, Jr., relating to marijuana and/or these specific charges may contact the District Attorney's Office (707-463-4211) and ask to speak with Investigator Gupta.

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