Silver Convicted

The second week of the third trial for Caleb Silver ended in Silver’s conviction for the murder of Dennis Boardman. But the week started out with a very likely chance that this the third trial would end like the first two — in a mistrial, due to the fact that the star witness for the prosecution, Medical Examiner Dr. Jacqueline Benjamin, had decided not to show up.

It was a startling development and the prosecutor, Deputy DA Tim Stoen, said he was stunned. Judge John Behnke, once he questioned Mr. Stoen thoroughly enough to determine that the prosecution’s duty to perform due diligence had been met, was also stunned. As it happened, Dr. Benjamin, who had a contract to work as medical examiner for both Lake and Mendocino County, had moved to New Jersey and, even though she was properly subpoenaed, she simply refused to fly back to California for this murder trial. Which ought to get her some jail time for contempt, but…

Defense attorney Eric Rennert said he, too, was surprised, but he somehow managed to conceal it, as he gleefully moved to get a request for mistrial on the record. Judge Behnke appeared to have little choice but to grant the mistrial motion, which he said he didn’t want to do.

The only option was to have a clerk read Dr. Benjamin’s testimony from the transcript of the second trial; and this was what was finally decided on, even though it left the door open for appeal. So we may have to go through a fourth trial, eventually, because of the neo-lib cost-cutting policy of contracting, rather than hiring people outright to do important jobs for the County of Mendocino.

With this weighty matter cleared up for now, the methodical Rennert found another bit of testimony that wasn’t quite to the defense’s liking: a comment by criminalist Carla Levy who said that when she tested the blood of the victim she got a pinkish reaction, and so she did another test and it came back darker. Mr. Rennert moved for a mistrial. Ta-da!

“Your honor the defense wasn’t informed of this second confirmatory presumptive test, and therefore under thee um uh Brady rules of discovery we would ask for a mistrial due to the prosecution’s obligation to turn over Dr. Levy’s lab notes. When she said on cross that she’d done a second presumptive confirmatory, your honor, I was well, uh, I was stunned, your honor.”

Judge Behnke said, “Ms. Levy’s testimony was inadvertent, and I can’t think of a curative instruction we could give the jury that wouldn’t draw more attention to it and that is presumably what defense wants to avoid.”

Mr. Rennert: “I was stunned, your honor.”

Stoen: “I object to a mistrial being granted over this issue. I didn’t ask for the lab notes because it was such a highly technical area that I couldn’t follow it and wouldn’t have had any expectation that the jury could follow it either.”

Judge Behnke: “The criminalist testified she did a presumptive test for blood and got a reaction where it turned pinkish, a faint pink reaction, she described it, so she did it again and got a darker color. She made this comment when you [Mr. Rennert] cross-examined her. This was not something that was elicited by prosecution; it’s not Brady material; the opposite, really. But if I instruct the jury to disregard it by striking it that would only draw more attention to it. And it doesn’t rise to the magnitude that would occasion a mistrial so the motion is denied.”

The possible significance of the blood evidence never was explained.

Then came another attempt to, well, to weasel out of the trial. Caleb Silver had told his lawyer that one of the jurors knew his mother, Frances Behrendt, but that he’d known her under her maiden name of Frances Mannix. Another mistrial was averted when Judge Behnke said he would simply name this juror one of the alternates, at the end of the trial, and therefore remove any possible bias from the 12 jurors who would deliberate.

The trial went forward despite Rennert’s dilatory tactics which we amply described in our previous coverage of Caleb Silver’s trials and prelims, and so we will jump forward to the closing arguments, as all the vital points are touched on therein. I hasten to apologize that I couldn’t get it all down, because Mr. Stoen’s closing was as eloquent a closing as I’ve ever seen or read, and deserves better treatment than anyone but a qualified court reporter could provide. Keep in mind, credulous readers, that my rendition is but a paltry paraphrase of the closing arguments, not a verbatim rendition at all, and I’ve inserted ellipses where I couldn’t get even an approximation of the words.

Stoen: “May it please the court, and thank you ladies and gentlemen of the jury for your careful attention during this proceeding … and I have every confidence you’ll return a verdict … the justice this case demands. The defendant Caleb Silver committed a murder as brutal as you’ll ever find … he killed his victim when the victim had befriended him, when the victim had trusted him … he killed his victim up close … he killed his victim in a frenzy … eleven blows of a hammer, and cut his throat twice with two separate knives … he killed his victim and then stole his victim’s prized possession, the victim’s truck, and took with him his victim’s loving dog, because he was obsessed over losing his own dog.” [Silver’s dog Woozle ran away from neglect, by all indications].

“You have heard how the defendant’s own mother after a one-and-a-half year absence … her son had returned and left a glove on her porch, and said to her friend, ‘that’s Caleb’s calling card’ and ‘that makes me want to lock my doors’ … then when she gets a letter from Caleb Silver and calls law enforcement…

“Ladies and gentlemen this is a case of First Degree Murder by Caleb Dain Silver. There are only two issues here: One: did Caleb Silver enter Dennis Boardman’s house; and Two, did Caleb Silver murder Dennis Boardman. All the rest are non-issues.

“The first non-issue is did he act willfully. It is a non-issue because he could not have killed Dennis Boardman in this way if he hadn’t acted willfully.

“The second non-issue is did he make a cold, calculated decision to kill Dennis Boardman. Such a decision can be reached very quickly, and the way in which the murder was accomplished shows it was not accidental… therefore a non-issue.

“The third non-issue is did he kill Dennis Boardman with premeditation and malice aforethought … [?]

“The fourth non-issue was the supposed presence of rigor mortis… and that ladies and gentlemen was a red herring, and the defense wasted half a day on it.”

Rennert: “Objection, your honor!”

Behnke: “Overruled.”

Stoen: “Who brought this issue up? Defense brought in an expert who judged from photographs that there was rigor when the medical examiner who performed the autopsy said there wasn’t, and that you had to manipulate the body to tell if rigor was present, that you couldn’t tell from a photo…”

Rennert: “Objection!”

Behnke: “Overruled.”

(The presence of rigor mortis would help defense show that the murder happened after Caleb had stolen the truck and therefore provide defense with an alibi.)

Stoen then listed a number of “concomitant facts” that helped establish the time of the murder as Christmas night or the early morning of December 26th. A nurse from the VA Hospital in San Francisco had tried several times to call Boardman and see how he was doing after his operation; both Dr. Benjamin and another Pathologist, Dr. Chapman, agreed the time of death was probably December 25th or 26th. Boardman’s daughter had also tried to call on Christmas, and for several days after.

Stoen: “So defense would lead you down a false trail and have you acquit the murderer, Caleb Dain Silver. Now, back to the two real issues. Number one, did Caleb Silver enter Dennis Boardman’s house: First, Silver admitted going to Boardman’s house on Christmas because it was cold, rainy, and he wanted a place to stay and something to eat. Second, he had just a few days previously entered three separate residences in Elk for a place to sleep, for food to eat, and to find things to steal. Thirdly, Silver admitted he had had Silvia Carsey drive him around in Boonville looking for his dog Woozle … and fourthly, despite the ridiculous statement that he didn’t know Dennis Boardman’s dog Bugsy was in the truck, he had to have entered Boardman’s house to get Dennis’s dog … as compensation for losing his own dog … which he then abandoned in southern California.”

Boardman’s dog Bugsy was found tied to the stolen truck at Santa Claus Beach, a popular surfer’s hangout in Santa Barbara County. Bugsy had been left without food and water, and had explosive diarrhea from being given seawater to drink. Hard to guess why Woozle took off in Boonville, eh? Another theory as to why Silver took Dennis’s dog would be the fact that Bugsy would start howling in grief over his owner’s death – most of us know dogs do this – and raise a hue and a cry after Silver before he could get away.

Stoen: “Ladies and gentlemen you have before you the murderer of a kind and elderly gentleman. The type of person who did this had to be young and strong; Caleb Silver is young and strong. The type of person who did this had to have been trusted by the victim; Caleb Silver was trusted by Dennis Boardman. The type of person who did this had to have been carrying around deep-seated resentments; Caleb Silver resented Dennis Boardman for burning down his childhood home in Boonville. The type of person who did this had to be high on methamphetamine; Caleb Silver has admitted he was high on meth at the time. The type of person who did this … “

All the pieces of this rhetorical device came together to make a picture of Caleb Silver and I tried calling the court reporter to get this section of the transcript, but unfortunately, as I already knew, it takes lots of time to produce, and it is prohibitively expensive, but in future it would make very instructive reading for young lawyers who want to deliver convincing closing arguments.

Rennert’s closing was less impressive.

Rennert: “Good morning. Well. It’s always interesting to hear what prosecution thinks the defense is going to be. The prosecutor mentioned rigor mortis and went on and on about my wasting time on it – a whole day I think he said. I wasn’t really prepared for what the district attorney was going to say so let me just say this about red herrings!”

Rennert furiously slapped a red-faced photo of his client on the projector screen, adjusting it with a trembling hand.

Rennert: “That, ladies and gentlemen, is a red herring. I don’t know how they made a booking photo look like that, but that’s a red herring.”

Rennert ripped it off the screen and put up another picture of half-eaten pizza, taken out of a fridge in one of the homes Caleb burglarized in Elk, and said it was another red herring.  Rennert would start in on one point and suddenly veer off to another before coming to any kind of conclusion on the first, using a common practice of argument that makes a suggestion of impropriety and then trials off with, “yeah,” “Uh-huh,” or some other affirmative hint that something not worth articulating is afoot. Rennert’s main point went something like this:

Rennert: “Now what we’re going to do, is talk about is what the prosecution can’t do in this case and that is prove beyond a reasonable doubt that —oh, yes, I wanted to start off with confirmation bias, ladies and gentlemen, because that’s what this case is all about… Uh, actually, before I do that, lemme just respond to a couple of things thee um uh district attorney said. I just wanted to touch on a few of these uh, these issues, such as my client’s being homeless — and we’ll get back to that, but the Prosecution said he was very upset over losing his dog — which was true — but to steal someone else’s dog, I mean c’mon… yeah. Uh-huh. Sure. That doesn’t make any sense, and then we have the district attorney saying that leaving the scene is thee um uh what the district attorney called an indication of guilt — huh? Well, if you’re going to steal a truck, and my client admitted to that, well, how do you steal a truck without taking it away? Yeah. Maybe, I suppose, you could just sort of uh sit there in the driveway. Yeah.”

Mr. Rennert touched briefly on each of the witnesses, and in each case used his pet euphemism “interesting” as in “I found it interesting” when he wants to imply that this or that witness was not credible, that this one had lied, that one was hiding something, another was exaggerating, and one more was minimizing, using cool guy lingo like, “I had a feeling on cross that this witness was going to go sideways on me,” meaning again, that the witnesses were not honest. Except his own very expensive expert witness, Dr. Haddix, who Rennert found “very credible.”

Rennert: “Were there corners cut? Mistakes made? Things covered up? Stuff left out? Interesting. Again, I remind you ladies and gentlemen, it’s not my obligation to prove the case. That’s the district attorney’s burden. All I’m saying is it’s interesting, and then there’s thee um uh the confirmation bias I mentioned earlier. There’s a jury instruction that says you don’t have to call every single witness [in the previous trial Rennert complained that too many witnesses were not called, now he’s annoyed that they were], but there’s a caveat to that which is that the Defense doesn’t have to call any witnesses. I don’t have to prove their case for them. Now, I’d like you all to um uh just take note of the instruction that says ‘if you can find two or more conclusions to any of the evidence you must chose the one that points to innocence’; that’s a MUST, ladies and gentlemen, and in this case, with this evidence, the prosecution cannot prove its case.”

Behnke: “Mr. Stoen …?”

The prosecution, since it has the burden of proof, gets to go twice, but Stoen declined — something I’ve never seen done before.

Stoen: “It’s not necessary for me to make a rebuttal, your honor, thank you.”

* * *

In one of the swiftest jury deliberations in the history of murder trials, Caleb Silver's jury found him guilty for the murder of Dennis Boardman an hour and a half after being sequestered. We expected the jury would spend the afternoon picking a foreman and return a verdict sometime next week. By the time I got back later in the afternoon the verdict was general knowledge. I asked the late Dennis Boardman's only surviving relative, his daughter, Laurel Boardman, for a comment an hour or so after the verdict came in. She said, "It's so sad — everybody loses."

The next day, the DA’s office issued the following press release:

Caleb Silver Found Guilty Of Murder

UKIAH April 27 - A Mendocino County Superior Court jury returned from its deliberations by mid-afternoon today to announce a guilty verdict and true findings on special allegations in a 2015 murder case.

The jury found Caleb Dain Silver, age 27, a transient on the Mendocino coast, guilty of the murder in the first degree of Dennis Boardman in December 2015. The jury also found true special allegations that the defendant personally used a hammer and a knife in the commission of the murder.

With the defendant demanding a speedy imposition of sentence, a sentencing hearing has been calendared for May 16, 2018 at 9 o'clock in the morning in Department H of the Ukiah courthouse. Anybody interested in this case or this defendant is welcome to attend that hearing.

The prosecutor who presented the People's evidence at trial against defendant Silver was Deputy District Attorney Tim Stoen, the oldest full-time prosecutor practicing law in California.

The law enforcement agencies that diligently gathered and pieced together the necessary evidence in this case were: the lead agency, the Fort Bragg Police Department, the Mendocino County Sheriff's Office, the Mendocino Major Crimes Task Force, the California Highway Patrol, the Santa Barbara County Sheriff's Office, the Department of Justice forensic crime lab, and the District Attorney's own investigators.

The trial was conducted before the Honorable John Behnke, judge of the Mendocino County Superior Court in Ukiah.