The Fashion Show (March 4, 2009)

Carol Hatcher of So Hum expressed interest in a recent story involving a State Parks ranger at Russian Gulch. Ms. Hatcher may recall that defense attorney Bart Kronfeld had filed a Pitchess Motion at the Ten Mile court to see if the ranger who ticketed his client, David Gurney, had a history of harassing park users.

An Assistant State Attorney came to Fort Bragg to oppose the motion and, after a meeting in the judge's chambers, it was denied. Since then David Gurney has retained new counsel, a lawyer from San Francisco.

The day before the trial was scheduled to resume, I went to the court clerk's window to double-check the calendar. She smiled knowingly and had the particulars ready before I even asked. “Oh, yes,” she said. “It's on for tomorrow, nine a.m. Let me just check to be sure!” She disappeared into the back and returned after a moment smiling brightly, carrying a file. “No problem,” she assured me. “There's a jury trial tomorrow, but it won't interfere with the Gurney matter, it doesn't begin until afternoon.”

“It's Mr. Kronfeld's case, isn't it?”

“Not anymore.” 

She opened the file where I could see the top page. “It's somebody else's now.” She tilted the page so I could see: Pier 5 Law Offices, 500Broadway, San Francisco.

I went into the foyer to wait for court to begin. We'd had some rain so I wasn't surprised to see attorney Mark Kalina enter in a raincoat. But I was absolutely delighted to see him sporting a stiff new chestnut Stetson. And – eee-haw! – look at those boots! With his whiplash mustaches, all he needed was one of those little Backwoods cigars to look perfectly ridiculous. Then Greg Peterson came in wearing one of those braided, rattail boleros with a tooled silver slide instead of his usual necktie. Where, I wondered, was the rodeo?

These two lawyers stood nearby practicing their upperclassmanship for the edification of any newspaper reporters who just might happen to be present and couldn't help wondering if word was getting around that my columns contained a certain sartorial element.

I came in early Wednesday and checked the court calendar. The David Gurney cases were scheduled for a pre-trial conference and a preliminary hearing. The foyer was practically empty, except for a petite woman looking particularly svelte in gray skirt suit, trimmed with black leather accessories and high-heel boots. She wore a black silk blouse and had a big black purse, a thick briefcase and a full filebox all stacked on the table where she sat. I asked her if she was Mr. Gurney's new lawyer.

“Yes,” she smiled. “Ann Marie Tomassini.”

She said it so fast I had to ask three times.

“And who are you?”

“A newspaper reporter: Bruce McEwen.”

She gave me her hand and asked about the paper. She didn't seem to be familiar with the AVA. I may have as easily said, “The Azerbijan Village Ayatollian,” and she would have been just as pleased to meet me. I told her that the readership was very interested in what's going on with the park rangers hereabouts. This statement lit her face up with eagerness. I asked her, “Will you be going forward with the trial?” 

“Not on the fourth, no.”

“Are you going to resolve things today, then?”

“No, definitely not!”

Mr. Gurney walked in at this point and she turned in his direction.

“Well,” I said, “I guess I'll just watch and see what happens.” She smiled and went to confer with her client.

There's a new Assistant DA at the Ten Mile court, and his name is Finnegan. Before him, there was Fred Holmes; and before that, Brian Newman. Judge Lehan asked Mr. Finnegan if “we” would be seeing more of him. He's a stout young man, probably in his mid-30s. He shaves his head and face. The term bullet-headed comes to mind when I see him. He was wearing a black suit and blue shirt with a blue and red-striped tie, which I think may be some kind of uniform at the DA's office. He said  he'd been told to come to Fort Bragg two days a week; but just last night “they” had called and said he would be coming over here regularly.

“You live in Ukiah?”

“Yes, your honor. I'll be driving over.”

Judge Lehan – off the record – said that this wasn't so bad as commuting the other way, because “you have the sun behind you both ways.” 

Ms. Tomassini was meanwhile standing by, in her nice suit, her light brown hair pulled back behind her ears. She had already come into the courtroom and introduced herself to Mr. Finnegan, well before court was in session, and perhaps knew all these particulars. She had already got Finnegan to agree to a new trial date (I had audited the conversation with the attention of a jealous lover) and the only thing remaining was the formality of presenting it to the court. This would have to wait while the judge reminisced about when Mr. Finnegan used to be a public defender, and Ms. Tomassini smiled patiently all the while, perhaps thinking things were charmingly quaint in out of the way places like Fort Bragg. If this were the case she really would have got a kick out of the western get-ups being modeled the day before. At any rate, the pre-trial conference and preliminary hearing were rescheduled and put on the calendar for April 6th; the trial date of March 4th vacated and reset for April 15th.

The Venire

Venire is Latin, a verb meaning to come. But in legal parlance it's a noun and refers to the writ that summons potential jurors to court. It also means the group of potential jurors for a potential case. On this particular Wednesday afternoon there were perhaps 50 of them crowded into the foyer of the Ten Mile Court.

It was like a big party, everybody seemed happy enough to be there, chatting in pairs or groups, and I guess all you have to do to get invited is just register to vote. Anyhow, I made my way through the clutch and into the courtroom, which was practically empty. I was running a little late and court was in session. The public defender, Thomas Croak, was talking to the judge about his client, a Mr. Huang, charged with a Fish and Game violation involving abalone.

It appears that Mr. An Zhi Huang had second thoughts about pleading his case before the good people of Fort Bragg who, to my understanding, have a very proprietary sense of duty towards the red abalone and other sea life of the coastal region. I had, in fact, heard a few jokes to the effect that some of the potential jurors present that day would just as well hang Mr. Huang for poaching their abalone! Just a joke, I'm sure, but the kind of remark that would disqualify the person making it from the jury.

Mr. Croak was wearing a tweedy suit coat for the trial or, maybe, just wearing it to protect himself against the damp and chilly weather. He said his client was willing to waive the jury and settle for a bench trial. Judge Lehan, regally attired in a purple shirt and dark red tie beneath his pleated silk robes, said that the plaintiff, The People would have to waive their right to a jury trial as well.

“Mr. Finnegan,” he asked. “Do the People wish to waive trial by jury?”

Mr. Finnegan is not a bloodthirsty man. He was not going to insist on throwing poor Mr. Huang to the mob outside. “However,” he said, “the final decision would have to be up to Mr. Stoen.” With the court's permission he left the room to seek Mr. Stoen's answer. In Finnegan's absence, there was some off the record talk about Mr. Stoen’s health; I gathered this was the reason a competent replacement was being sought. By my lights, which are admittedly dim in these matters, Mr. Newman and Mr. Holmes had proved to be nowhere near as able as Mr. Stoen at prosecuting the State's interests in Fort Bragg. Before the afternoon was out, I'd know whether Mr. Finnegan could.

Mr. Stoen came into the courtroom in such a smart looking black suit and bright white shirt that, everything still being off the record, Jan Hunter, the court reporter, said he looked good enough to get married! With the air of a man acting in conflict with his better judgment, he grumbled that he would waive the jury trial “in the interest of judicial economy.” Nobody smiled at this trenchant little irony, but nearly everyone's hand went to their nose to, I suppose, suppress a sneeze.

The mob had been called in and told there’d be no lynching after all. I made my way to the farthest corner and made myself as inconspicuous as I could. It was truly a huge crowd. They filled the gallery, the jury box, the witness stand, and took all the extra chairs from the large tables. 

“Ladies and gentlemen,” Judge Lehan said. “Most of you have come here as prospective jurors and having looked over the list, I recognize most, if not all of you. I want to thank you for coming. The case you were called to serve as jurors on will go to trial – there has been no disposition of this case. But I have spoken to both counsel and they advised me that they wish to try the case to the court as a bench trial as it is called. Both counsel have indicated that this was done as a consideration to you and you won't have to remain here today.” A ripple of muffled amusement went around the room at this.

“I don't know what else to tell you,” the judge continued. “Thank you,” he said. “Thank you all for coming.” They left with much happy chatter and laughing.

People v. Herron

A jury trial was also waived in the case of Victor Joseph Herron who was charged with public intoxication and thereby being in violation of probation. Public defender Croak was assigned to Mr. Herron and Assistant DA Finnegan would prosecute.

After the prospective jurors left, two sheriff's deputies came into the courtroom, one in a worsted twill suit, sort of a green and khaki tweed, very much the same color as a sheriff's uniform which the other deputy was wearing: the khaki shirt and green cargo trousers. The second deputy, recently promoted Detective Lorenzo, also wore his Sam Browne belt with his Glock .40 caliber, extra magazine, and handcuffs. Deputy Van Warmer may also have been armed beneath his suit. I don't know. This was looking like the skinheads against the hippies and the skinheads had at least one gun. I say this because attorney Croak has long hair and a beard, as does his client Herron. The District Attorney and his witnesses couldn't produce enough hair between them to make up a five o'clock shadow.

Finnegan called his first witness, deputy Van Warmer who said he was called out at approximately 4am on July 13 to investigate reports of an intoxicated male subject in the Caspar area. He finally found the defendant behind the old Caspar Post Office and, at the District Attorney's behest, pointed him out as the person seated at the defense table.

“Then what did you do?” Finnegan asked the witness.

“I asked him to come out of the narrow space between an outbuilding where he was. I had to help him out. He appeared to be intoxicated.”

“Have you seen intoxicated persons before?”

The expression on the deputy’s face was so incredulous that suddenly I could no longer suppress a fit of coughing and wheezing, and yet his answer was a plain and simple, Yes.

“And what made you think Mr. Herron was intoxicated?”

“He could barely stand by himself, he had urinated on the front of his pants, his eyes were bloodshot and watery, and he was slurring his words and talking incoherently.”

“Did you arrest him?”

“Yes.”

“And did you search him?”

“Yes.”

“And what did you find?”

“A bottle of vodka.”

Mr. Finnegan said, “That's all your honor.”

Mr. Croak had objected to most of Mr. Finnegan's questions, causing him to rephrase some and qualify others as being not germane to establishing truth, but allowed by Judge Lehan on other grounds. As Croak began to cross-examine the witness, Finnegan paid him back in the same coin, as the cliché goes, making him go to a lot of trouble for a nickel's worth of testimony. After this was all hammered out the only thing established was that, perhaps, Mr. Herron had said something about being chased and would be therefore glad to go to jail.

The second deputy, Detective Justin Lorenzo, was called and corroborated the first witness’s testimony. When asked if he'd ever seen an intoxicated person before he glanced at me with a trace of smile flickering over his face. When asked to elaborate he said he’d “seen hundreds.”

Croak again got confirmation that Herron was fleeing violence and wanted to go to jail for his own safety. A homeless wretch, Herron appeared to be renting a spot to park his car, which he lived in, and somebody had harassed him and chased him into hiding. He had, he said, wet himself from fear. Croak’s argument was that Herron had some justification for leaving his camp and being drunk in public to preserve his safety from someone who he perceived to have meant him harm.

Judge Lehan allowed as much and was willing to reinstate Herron’s probation rather than revoke it. Finnegan then asked for a no-alcohol clause to be included in the probation. Croak offered a document that showed Mr. Herron had all but completed – he would finish the next day – an alcohol and drug program through the Department of Public Health and the Coast Community center.

These kinds of diplomas always make a significant impression on Judge Lehan and he only gave Finnegan part of what he wanted: they could search Herron for vodka bottles but he didn't have to stay out of bars and all the rest.

I had to go before they tried Mr. Huang so I went back the next morning. The court clerk gave me a copy of her minutes. Mr. Stoen, it appeared, had prosecuted the case (Finnegan left when I did) and Mr. Huang was found guilty on both counts.

Finnegan’s a pretty tough prosecutor, but he's no Stoen – yet. 

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