Justice Is Not Blind…

Last week, a jury found Paul Rivera, a deaf and dumb homeless man, not guilty of possession for sale of methamphetamine, a felony. Rivera was found guilty of the misdemeanor possession — something he admitted all along. 

Rivera

Meth addicts inevitably claim “personal use,” even when the amount in possession is grossly more than what reasonable people feel is reasonable consumable by one person.

A half-ounce, for instance.

Paul Rivera had less than a half-ounce. He only had 10.1 grams, 4.078 grams less than a half-ounce, when Sergeant Peter Hoyle busted him and some of his homeless friends “turning a bowl” in a dry creekbed last August 6th.

Meth addicts will claim personal use, but the cops take a contrary view: to the cops, all users are pushers. Sergeant Hoyle explained it very elegantly to the jury, saying that all users want to get “free dope” and the way to do it is to buy an ounce for $400, break it down into eight equal parts of 3.5 grams each (“eight-balls”), sell six of these for $75 each, which equals $450; so the user/pusher gets his $400 back (plus $50 profit) and two eight-balls — seven grams — for personal use.

A half-ounce could be managed in much the same way, one is given to assume, although a price break would not necessarily apply, which is to say a half ounce would cost more than $200, but the prosecutor, Deputy DA Luke Oakley, didn’t take Hoyle into the economic details of the lesser amount.

Besides the bag of meth and the glass pipe, the evidence against Mr. Rivera included some hand-written notes. As Rivera does not hear or speak, he must use the written word to communicate with anyone who doesn’t know and understand his first language, American Sign Language. So when Sgt. Hoyle busted Rivera, he (Hoyle) gave him (Rivera) a card with his (Rivera’s) Miranda rights printed on it. In response to which, Rivera agreed to speak (sic) with Hoyle.

On a piece of note paper Sgt. Hoyle wrote, “Do you understand?”

Below which Rivera wrote, “YES.”

Sgt. Hoyle wrote, “How much do you sell?”

Mr. Rivera wrote, “NO ALL MYSELF.”

Hoyle: “You mean a little?”

Rivera: “NO NOTHING”

Hoyle: “Why have so much?”

Rivera: “NOT MUCH ENOUGH FOR MYSELF”

Mr. Rivera didn’t use anything but upper case letters and he neglected punctuation and other grammatical niceties. English being his second language after American Sign Language.

The court process required a more efficient form of communication than hand-written notes, so three court-certified American Sign Language interpreters were brought in. One to sit at counsel table to aid in Mr. Rivera’s communication with his lawyer, Mary LeClair of the Office of the Public Defender; and two more to take turns translating the Q&A between the lawyers and the witnesses. These two worked in shifts, it being rigorously exhaustive — imagine something like a mime and a ham actor being very arch, especially in mouthing the words, and at the same time gesticulating expressively, along with making the appropriate hand signs — to interpret thoroughly in American Sign Language.

There were other notes in Mr. Rivera’s backpack which further incriminated him. He had written on an envelope, an envelope addressed to him at Plowshares where a lot of homeless people get their mail, “I GET ½ OZ ON MONDAY THA BEARS.”

This note, Sgt. Hoyle presumed, was in answer to someone who wanted to buy more meth from Rivera. Then there was another note that explained how Rivera’s supplier would front the meth, but that he owed her $40 and couldn’t get any more until he paid the debt. Hoyle said that the $40 amount was fairly common in the meth trade. Another note had more incriminating words written on it: “I CAN GET A BAG WILLITS GUN DEAL GO TO MY COUSINS DEAL DRUGS GOOD SHIT 2 YEARS GET FRONT.”

Sgt. Hoyle was asked to explain these notes to the jury but defense objected that it called for speculation, and Judge Keith Faulder sustained the objection. Mr. Oakley rephrased his question, asking instead what, in Hoyle’s expert opinion — Hoyle had previously been recognized as an expert in drug transactions — was the upshot of the notes, in answer to which Hoyle said, “Possession for the purposes of sale. He has known his supplier for two years, they have a good relationship, she trusts him and will front drugs to him. THA BEARS is a saying from Saturday Night Live and used here to confirm that the product he expects to get will be first-rate. He takes shortcuts in his writing, leaves words out, but he makes himself understood, especially to people he has become familiar with through drug transactions.”

Ms. LeClair, on cross, asked Sgt. Hoyle if he had ever sat down with her client, Mr. Rivera and had a heart-to heart talk, “back-and-forth,”  were the words she used, but she’s so sincere in her public defender passions, that a heart-to-heart was plainly what she meant. Hoyle, of course, like most cops — even more so, we suspect — is less interested in the touchy-feely side of the people he catches with drugs. So Hoyle admitted, no, he’d never gotten into Rivera’s personal habits, his 30-plus years of drug abuse, his buying and using habits.

Hoyle: “I have an idea what they are.”

LeClair: “But you don’t know how much he uses daily?”

Hoyle: “No, ma’am.”

LeClair: “Or how much he uses weekly?”

Hoyle: “No, ma’am.”

LeClair: “Nor how much he uses on a monthly basis?”

Hoyle: “No, ma’am.”

LeClair: “And you don’t know how much he doses in his pipe each time he smokes, do you?”

Hoyle: “No, ma’am.”

LeClair: “Do you know where he gets his money?”

Hoyle: “I don’t know but suspect he’s in some way subsidized by the state.”

LeClair: “But you don’t know how much he gets or when he gets it, do you, Sergeant Hoyle?”

Hoyle: “No, ma’am.”

LeClair: “On August 6th you came upon him sitting in a creek bed with three other people, smoking a glass pipe. And the other three were all looking at Paul Rivera?”

Hoyle: “That’s correct.”

LeClair: “Find any cash on him?”

Hoyle: “No, Ma’am.”

LeClair: “Any baggies?”

Hoyle: “No, ma’am.”

LeClair: “A scale?”

Hoyle: “No, ma’am.”

LeClair: “A razor blade or knife?”

Hoyle: “No, ma’am.”

LeClair was enumerating the usual “tools of the trade” for meth dealers, and on re-direct, Mr. Oakley cleared this up with Hoyle’s testimony that drug dealers don’t necessarily carry all that stuff with them, and that those cute little zip-lock baggies are no longer in vogue, any old plastic grocery bag will do to tear out a corner and twist up an estimate of a 10th of a gram, a $20-sack, of retail meth. A credit card (or even a food-stamp, or EBT card) can be used to chop up a bag of meth, so an absence of this equipment is not necessarily exculpatory.

There was a large chunk of meth in the corner of the bag and Ms. LeClair wanted to get it out and have the jury see just how hard it was but Judge Faulder, on advice from the police — the bag wasn’t opened at the station for fear of fentanyl exposure; articles in the East Bay Times and the San Francisco Chronicle have spread alarm and smeared drug addicts with representing this additional hazard — decided to keep the dope sealed up in court; and as a further precaution, Mr. Oakley withdrew it from evidence so the jurors couldn’t take it into the deliberation room and open it.

The meth itself wasn’t necessary for evidence because it had been sent to the Department of Justice lab in Eureka where Senior Analyst Kirstina Rosenfeld had determined that it was indeed methamphetamine; and Ms. Rosenfeld came to court to testify, so her report and testimony was sufficient.

Special Agent Chase Rigby of the Mendocino Major Crimes Task Force was brought in to give his opinion that Rivera possessed the meth for purposes of sale.

In the end, Ms. LeClair put Mr. Rivera on the stand. This took some rearranging of the American Sign Language interpreters, but went smoothly once underway. Rivera said he’d been homeless ever since his apartment sold five years ago and rents went through the ceiling and he could no longer afford to live anywhere but out on the streets, as his disability check wouldn’t cover the rent.

“I used to have cart,” Rivera said through his interpreters, “but it got stolen, so I got another cart to put all my stuff in, but it too got stolen. My stuff has been stolen five times. Now all I have is my back pack. I get a government check every month on the 3rd, except when the 3rd is on a Sunday, then I get it the day before.”

Mr. Rivera enumerated his expenses, his phone bill, clothing, sometimes a motel room for a day or two, depending on what he could afford and, of course, his meth habit. He said meth was not something he does all the time. He said it cost him $20-$40 a week. Prices vary, he said.

He said, in fact, quite a lot of contradictory things, and Mr. Oakley was diligent in noting each and every one. He said the notes were from a long time ago, he even laughed dismissively at how old they were — this despite the earlier testimony that his stuff was regularly stolen — how these notes came to be preserved from two years ago went unexplained; and it wasn’t very convincing that Rivera usually bought his meth in $20-$40 amounts, and on the one occasion a cop caught him (he signed “caught” by hooking his forefinger in the corner of his mouth, like a hooked fish, much to the amusement of the wits in the peanut gallery) he was in possession of ten times as much. As to the note about his ability to get a half-ounce fronted to him as soon as he repaid the $40 he owed his supplier, he said that was all just “bragging, bragging and lying. It wasn’t true. My brother and cousin were incarcerated. They were goodfellas [a reference to the Willits Mafia?] in Willits, but like I said, I was bragging — really, it was just a joke.”

LeClair: “So this note that says you were getting a half-ounce on Monday — were you planning to sell any of it?”

Rivera: “No, no.”

“Then why tell the other person you were getting it?”

“I went over to the office where I was supposed to meet her and Kora never showed. She was being a bitch, that’s all, Kora never showed.

“How much did Kora sell a half-ounce for?”

“$250.”

“How were you planning to pay for it?”

“She fronted it to me. I’d give her $100 on the first of the month and another $100 on the next first of the month. It was for me, for the whole month, my monthly use. I never sold.”

“Was it your habit to buy a half-ounce for the month?”

“Yes.”

“Who did you buy that bag from?”

“His last name was Keno.”

“Do you always buy from him?”

“No, maybe five times, not often, no.”

As the reader will readily see, there were plenty of “inconsistencies,” to use the courthouse euphemism, in Rivera’s testimony. Nevertheless, and in spite of all these inconsistencies in his testimony — all of which Mr. Oakley pointed out — the jury was back within 45 minutes with a not guilty verdict on the sales charge.

And this is something that defies all the logic I bring to the equation, and why I never, ever, try to second-guess a verdict — I always come up wrong. The odds are better on a roulette wheel if you ask me.

26 Responses to "Justice Is Not Blind…"

  1. Jerri Lewis   December 26, 2019 at 7:33 am

    Using the term “deaf and dumb” in this day and age is more than offensive. As a teacher of hearing impaired and the sister of a brilliant, strong and wonderful deaf sister I am appalled at the writer’s ignorance. Please correct this and do not try to defend what is indefensible.

    Reply
    • Bruce Anderson   December 26, 2019 at 8:38 am

      If you would consult a dictionary, Ms. Lewis, you might discover that “dumb” as applied here simply means mute. Which it has always meant in the context of the afflicted people. Of course you seem to prefer being offended, so….

      Reply
      • Jerri Lewis   December 26, 2019 at 8:40 am

        That is such a week defense. That term has gone out of common usage eons ago for those who bother to educate themselves. Of course I know what it means. Doesn’t make it okay to use it anymore. And that you would defend the use of the term is pathetic.

        Reply
  2. Jerri Lewis   December 26, 2019 at 8:47 am

    And educate yourself. The deaf are not “mute.” They can use their voice if they choose to.

    Reply
    • Bruce Anderson   December 26, 2019 at 9:14 am

      Believe it or not, I know that.

      Reply
      • Jerri Lewis   December 26, 2019 at 9:25 am

        Can’t you just apologize if you offended anyone? I’m done.

        Reply
        • Bruce Anderson   December 29, 2019 at 1:00 pm

          I’m sorry. Can I have a hug?

          Reply
          • Jerri Lewis   December 30, 2019 at 10:21 am

            To Bruce Anderson – Of course, anytime! I do think the AVA is a wonderful newspaper. And to Mr. McEwen this is my last comment on the subject. No one who understands the Deaf community or has any contact with the Deaf community would ever use the terminology and would understand that it is hurtful. The Deaf do have a language – it is called ASL – and the Deaf would tell you they have a thriving culture as well. Happy New Year to all of you. May we find ways to communicate in 2020 that don’t require anyone to “win” – that we can just share our views respectfully and honor differing opinions.

          • James Marmon   December 30, 2019 at 10:46 am

            Jerri Lewis, I’m glad you are now calling the Deaf community by their current politically correct name. I was extremely offended when you refereed to them as the hearing impaired. I’m still not over it, may take months.

            James

      • Betsy Cawn   January 1, 2020 at 2:04 pm

        There are times when I am dumbstruck by the petty bickering on the AVA by indignant commenters. (And, as an advocate of “free speech,” also appreciative of the Editors, who give everyone room to carp and complain. Quite generous, in my opinion.)

        In the case of the defendant, he was certainly dumb to keep those notes!

        Choosing one’s words carefully is the responsibility of the author, expected of “reporters” whose dissemination of accurate terms is valuable for everyone. But in civil conversation — and let’s assume that this feature of the AVA is part of that process — “offense” is overused and apparently exercised in order to satisfy some individual’s need to pick a fight with a writer’s descriptions to make themselves feel good.

        What possible satisfaction can there be in repeatedly calling another commenter a “fascist” without taking the trouble to describe what it is that the commenter states that is fascistic? Nothing is learned, except that knee-jerk name calling is a “right” but not a useful argument that enlightens anyone.

        The greater question of exceedingly fine “political correctness” as exercised by the language police (who forget that in the old days, carburetors had to be “retarded,” and even today a “handicap” levels the playing field in golf), serves to grant the “right” to be offended and demand an apology for trivial compensation. Yes, the word “nigger” is abusive, but “niggardly” is not — yet the use of the latter resulted in a vicious lashing out by what one would assume to be “educated” administrators of the school system.

        This enjoyable essay comes from the Guardian, 2015:

        HAS POLITICALLY CORRECT CULTURE GONE TOO FAR?

        I like this essay a lot, in spite of the author’s assumption that “Donald Trump . . . is the product of America’s reigning generational champions: the Baby Boomers.”

        Picturing the geriatric billionaires and power players, I can see how that would be logical given the perspective of the author, but “my” generation sees the destruction of our economy by Trump and his cronies as supported more by the vast majority of illiterate and righteously indignant industrial and agricultural workforces, who are the “true believers” in fantasies and lies that are the daily fare in a highly questionable mainstream media, because that media (personified by Zuckerman’s defense of Facebook allowing “alternative facts” to go unchallenged) engages in the “anything goes” promotion of whatever the Congenital Idiot in Charge and his minions say.

        Nonetheless, I cannot take umbrage at the author’s opinion and can actually see how the assumption fits from his perspective, and the rest of the essay is pithy and very imformative, as well as amusing and nicely done.

        For a refreshing look at that mainstream media reporting on the phenomena of “Alternative Facts,” watch NBC News’ Meet the Press on December 29, 2019 (while keeping in mind that these are the arbiters of “truth” that willing to sell their grandmothers to the highest bidder, no matter how lofty their “editorial” professionalism is). Chuck Todd does a great job on this pithy problem, and even manages to include one “African-American” at the end (who is himself a peddler of NBC’s product).

        https://www.nbc.com/meet-the-press/video/meet-the-press-122919/4088172

        As Sylvester would say, “Suffering Succotash!”

        Reply
  3. James Marmon   December 26, 2019 at 9:02 am

    “It’s this upside-down world that we live in where we afford political correctness to the most intolerant group of individuals on the planet.”

    -Vince Flynn

    Reply
    • Lazarus   December 26, 2019 at 9:36 am

      The 49ers announcer Tim Ryan incident, regarding a great play by the Raven’s QB, is a prime example of how far the PC police have come…Even my millennial acquaintances saw through the absurdity.
      As always,
      Laz

      Reply
  4. James Marmon   December 26, 2019 at 9:32 am

    Jerri Lewis, I’m offended by your use of the term Hearing-Impaired. Get with the times, Hearing-Impaired is no longer politically correct.

    “Hearing-impaired – This term is no longer accepted by most in the community but was at one time preferred, largely because it was viewed as politically correct. … “Hearing-impaired” was a well-meaning term that is not accepted or used by many deaf and hard of hearing people.”

    https://www.nad.org/resources/american-sign-language/community-and-culture-frequently-asked-questions/

    What is the politically correct term for deaf and dumb?

    “Deaf-mute is a term which was used historically to identify a person who was either deaf using a sign language or both deaf and could not speak. … Some consider it to be a derogatory term if used outside its historical context; the preferred term today is simply “deaf”.”

    https://en.m.wikipedia.org/wiki/Deaf-mute

    James Marmon MSW

    Reply
    • Jerri Lewis   December 26, 2019 at 9:56 am

      Thank you.

      Reply
  5. Flynn Washburne   December 28, 2019 at 11:01 am

    Hi there. My name is Flynn and in addition to being a regular contributor to the Anderson Valley Advertiser, I am a drug addict (specializing in the popular stimulant methamphetamine) of long standing and vast experience.
    Can we all agree that that previous paragraph was unnecessary in the extreme, that anyone even remotely familiar with this venue is already aware of these facts? So stipulated. Carry on, counselor.
    And may we also contend that research and fact-checking, even under the aegis of so laissez-faire an editor as Bruce Anderson, is an integral part of responsible journalism? Right as usual, Mr. Prosecutor, pray continue.
    I would like to introduce exhibits A and B, hypocrisy and irony, in the form of snide comments about tweakers written atop a barstool. So entered, sir.
    I would be remiss in not pointing out testimonial errors, if I may, and I say with all confidence that no puddle-puffer within a hundred miles of our fair county ever uttered the phrase “turning a bowl”. It’s “roll”, as in “rolling a bowl”, referring to the practice of rotating the pipe on its long axis 45 degrees alternately clockwise and otherwise to facilitate a cool and unburnt smoke. Further, even a cursory inquiry of spot prices would reveal that 75 smackers would net one not only that eight-ball but a peezo, torch, and forty of Mickeys besides. Very interesting, Mr. Darrow, your reputation is well-deserved.
    In conclusion, I say that as a colleague and expert witness my command of the argot and arcana of the unfortunates to whom you feel so superior is yours to exploit at will. Call me anytime for the straight dope and you won’t look like one.

    Reply
    • Jerri Lewis   December 28, 2019 at 12:13 pm

      Flynn I have always enjoyed whatever you choose to write and I think you have a great talent for the written word. I hope you have a happy and healthy 2020.

      Reply
  6. Harvey Reading   December 28, 2019 at 12:16 pm

    Interesting dialogue in the comments illustrating differences between those who choose to live in the past (conservatives) and those who live in the present. Sad, but illuminating. The phrase, “deaf and dumb”, had almost died out by the time I graduated from high school, in the late 60s. Yet, there are still those wishing to perpetuate it. It’s a phrase I would expect from the crime reporter, as well as from the mental health and homeless “expert”.

    Here’s an idea, one that might solve all the major problems in Mendoland: set up one of those money begging sites on the Internet and pitch the need for money to maintain the Mendo life style of living in the past. You’d probably get hundreds of millions from brain-dead conservatives around the country, overnight.

    Reply
    • Harvey Reading   December 28, 2019 at 12:26 pm

      I’d be happy to help you with advice. My billing rate is $1,000 per hour, minimum charge of 100 hours.

      Reply
  7. Bruce McEwen   December 29, 2019 at 12:55 pm

    The terminology, “deaf and dumb” was used in court, by the defendant’s lawyer in addressing the jury and in conversation with the Sign Language interpreters. To me it is immaterial whether such terminology is politically correct, I use the language that is used in the case in question, in order to put the reader in the courtroom as best I can, and even though I never get it down verbatim, which is nigh on impossible without a recorder, which is not allowed, I generally get it close enough that the lawyers agree that I have not put words in their mouths. Now, as to the “turning a bowl,” thank you, Flynn, for the correction. I was, I thought, borrowing a phrase from your column, and I apologize for getting it wrong. The business about getting an eight-ball for $75 is all from Sgt. Hoyle’s testimony, and I don’t pretend to have any knowledge about it, myself. As far as assuming any superiority towards people who use meth, I feel none. I don’t personally care if they use it or not; to me, all such laws are a form of legislating morality, and I don’t think it’s right to that. I like to drink and smoke, and I’m glad it’s legal; but I don’t take a superior attitude because of it. Anyone who says I do has misunderstood me — it’s simply not my drug of choice.

    Reply
  8. Jerri Lewis   December 29, 2019 at 1:30 pm

    I too am an attorney and would never use that term which is demeaning to the client. And this is not an issue of being politically correct. Some things are just wrong. ( I understand your point about quoting the attorney accurately. )

    Reply
    • Bruce McEwen   December 29, 2019 at 1:56 pm

      It is wrong to intend insult, sure, but to explain to a jury that a person doesn’t hear or speak, and to use the terminology in that context, respectfully and patiently, by a patient and respectful lawyer, which Ms. LeClair most assuredly is, is not demeaning. And when it’s used before a large group of people who have heard it used all their lives and never even supposed, many of us, that one would be so simple-minded, considering the context, to jump to the conclusion that the other meaning, the Dumb and Dumber movie meaning, was somehow intended, is a bit much. Most reasonable people, lawyers included, are not that ready — eager, even — to take offense when none is intended.

      This whole debate reminds me of that ridiculous brew-ha-ha (sp.?) that erupted over the use of the word “niggardly” a few years ago. It’s all much of a sameness, to my mind.

      Reply
  9. H.H.Heller   December 30, 2019 at 12:47 pm

    Grandfather McEwen would be disappointed to hear grandson did not use symbols (“, ‘) to indicate credit was to be given to someone else.

    Reply
  10. Claire Frank   January 1, 2020 at 3:32 pm

    “Sticks and stones can break my bones, but words will never hurt me.” Ah, not really.

    Rick Hanson, Psychologist continues…
    Often it’s words – and the tone that comes with them – that actually do the most damage. Just think back on some of the things that have been said to you over the years – especially those said with criticism, shaming, anger, or scorn – and the impacts they’ve had on your feelings, hopes and ambitions, and sense of yourself.

    Words can hurt since the emotional pain networks in your brain overlap with physical pain networks. (The effects of this intertwining go both ways. For example, studies have shown that receiving social support reduces the perceived intensity of physical pain, and – remarkably – that giving people Tylenol reduced the unpleasantness of social rejection.)

    Besides their momentary effects, these hurts can linger – even for a lifetime. The residues of hurtful words sift down into emotional memory to cast long shadows over the inner landscape of your mind.

    Plus they can alter a relationship forever.

    Reply

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