Runaway Red

Most of us shoot ourselves in the foot from time to time, metaphorically anyway, but Kenneth McCarty shot himself in the foot then ran over his other foot. Not on the same day, but close.

McCarty
McCarty

Nobody saw him run over his foot, and maybe no one saw McCarty shoot himself in the foot either, but the accident-prone Covelo man said his GMC Tahoe ran over his foot because he was on heavy meds from shooting himself in the foot, presumably not the same foot he subsequently ran over. McCarty says he ran over his foot when he climbed out of his big rig after a fender bender in his home town. It was this second accident that landed before a jury.

Misty Watts's children told her someone had just run into Grandpa’s Jeep. Misty found McCarty lying in the middle of the street with the big red Tahoe coasting on past McCarty and backwards into her neighbor’s Ford pickup. Ms. Watts ran to the driverless Tahoe, slammed it into park, turned off the motor, and grabbed the keys.

As McCarty got to his feet, Ms. Watts sent her son for a phone and called 911. She said McCarty seemed incoherent and was staggering, but didn’t appear to be injured.

It took a little over five minutes for Round Valley Tribal Officer Vincent Cordova to show up. Cordova had just received a call that a "red Suburban-like" vehicle was being driven recklessly through town. Summoned by Ms. Watts, Cordova quickly arrived at the accident scene where he saw the rogue Red Tahoe, the two parked cars it had hit, and McCarty limping along a fence, “quite wobbly,” holding himself up with the white pickets.

It was defense’s position that everyone involved jumped to the conclusion that McCarty had been driving under the influence, and that his right to be presumed innocent until proven guilty had been violated.

The prosecution believed that McCarty was under the influence of at least two 500 milligram tabs of Vicodin that had been prescribed for him when he shot himself in the foot. Then, on the day in question, McCarty had hit a parked car, gotten out of his Suburban to investigate, and somehow the Suburban had rolled over one of his feet, presumably the one he hadn't accidentally shot. McCarty told Officer Cordova, an old acquaintance that he’d taken the pills.

Deputy DA Nicholas Sullivan: “Did he appear injured?”

Officer Cordova: “No, but his speech was slowed way down.”

Sullivan: “What did that signify to you?”

Cordova: “That he may have been impaired. So I told him the CHP was coming and that he’d be safer in my car. His balance was that unsteady and he said he didn’t mind.”

Sullivan: “Did you ask if he’d taken any medication?”

Cordova: “No, he voluntarily told me he’d taken two Vicodin.”

Sullivan: “How long did it take for the CHP to arrive?”

Cordova: “About four minutes.”

Jonathan Opet of the Office of the Public Defender decided to put Officer Cordova on trial.

“How long have you been with the Tribal Police, Mr. Cordova?”

Cordova: “Only about nine months.”

Opet: “And what did you do before that?”

Cordova: “I was a security guard.”

(Mr. Opet was a newspaper reporter in the Bay Area before taking flight as a legal eagle.)

Opet: “Were you trained to identify different drugs?”

Cordova: “Yes.”

Opet: “Vicodin?”

Cordova: “Yes.”

Opet: “But you don’t have a degree in pharmacology, do you?”

Cordova: “No.”

Opet: “So you don’t know what Vicodin is composed of, do you?”

Cordova: “No.” (hydrocodone, a prescription opiate, we later learned.)

Opet: “But you say you know Mr. McCarty?”

Cordova: “Yes, I went to school with his son, and I know other members of the family.”

Opet: “Do you remember when he shot himself in the foot?”

Cordova: “No.”

Opet: “Did you ask if he had a medical condition?”

Cordova: “No.”

Opet: “Did he seem confused as to why he was being put in the car?”

Cordova: “No.”

Opet: “Did you search him?”

Cordova: “No, but I asked if he had anything on him and he said no.”

Opet: “He let you put him in the car?”

Cordova: “Yes.”

Sullivan: “Why didn’t you arrest him?”

Cordova: “Because the Round Valley Tribal Police doesn’t have the authority to arrest people; we can only issue citations.”

Officer Alex Kimball of the CHP gave Mr. McCarty a series of Field Sobriety Tests, during which he [McCarty] actually fell down when asked to stand on one foot. McCarty didn't tell Officer Kimball that he’d run over his foot, or that he had shot himself in the other foot. McCarty also performed poorly on other aspects of the Field Sobriety Tests, the parts that have nothing to do with feet. The officer determined that McCarty had been driving under the influence and arrested him.

Things got interesting near the end of Officer Kimball’s testimony when the two rookie lawyers, Sullivan and Opet, tried to delve into the reasons why law enforcement officers would never lie on the witness stand.

Opet: “Has your testimony been truthful, Officer Kimball?”

Kimball: “Yes.”

Sullivan: “Would you please tell the jury why an officer would never lie on the stand, Officer Kimball?”

Opet: “Objection.”

Mr. Opet didn’t state the reason for his objection — such as relevance, hearsay, leading, or what-have-you — which would have been odd anywhere else. But not in Judge Jeanine Nadel’s court. What Nick Sullivan was fishing for is the quaint conceit that cops won’t risk their jobs by giving false testimony in a routine DUI case. But this was the very courtroom where CHP Officer Babcock (known by his critics as Officer Badcop) had sworn under oath that there was no iCop video of an arrest he made in Philo a while back — which the jury had just watched in his absence — because his iCop wasn’t in working order that day. It was working. No perjury charges were filed against Babcock, which is only fair, because the defendants are rarely, if ever, charged for lying under oath, either.

Sullivan appeared to be unaware of the precedent, but not Opet who, as a former journalist may well have heard of it. And it must be assumed that the “Badcop iCop Incident” enjoys a rather legendary status at the Office of the Mendocino County Office of the Public Defender.

The DA’s Office lost another case of DUI involving Vicodin earlier this year, and it’s getting to be a problem with people driving around in these big SUVs who can’t even stand up but aren't drunk. But there’s no way to test for the drug, and no set standard for how much a person can legally drive with the stuff gumming up their hand-eye coordination, so it was not surprising that this case ended in a mistrial.

Mr. Opet told the jury that his client was not guilty, that in fact he was innocent.

“This case is based on nothing but assumptions,” he said. “Mr. McCarty gets in a car accident, and everyone just assumes he’s guilty. The first officer on the scene puts him in a patrol car, and while he awaits the CHP, he’s scared and nervous.”

Opet reminded the jury that they, unlike the officers who arrested his client, must presume him to be innocent. “Nobody’s perfect,” Opet said. “And the officers sometimes make mistakes, too. And sometimes it’s just not right.”

“What this case is about is the lack of scientific evidence,” Opet continued. “There’s no proof how much hydrocodone was in my client’s system. He was trying to be honest when he admitted to taking the Vicodin, but he could feel that they had already made up their minds about arresting him. There is no evidence in this case that he had too much Vicodin in his system. You could say that maybe he was impaired but we need a more confirmatory test. He got in an accident. When he got out to see what damage had been done, the Tahoe rolled backwards over his foot. Then he gets arrested for taking medication prescribed to him for an accident involving a firearm. But he’s innocent. He testified that he was not impaired. So he’s not guilty.”

The jury couldn’t decide. They hung at a five guilty, seven not guilty, and Judge Jeanine Nadel declared a mistrial.

In Judge Ann Moorman’s court, the Public Defender’s Office was putting another cop on trial: The newly hired Josh Cooper, who had just seen his smiling face on the cover of the Ukiah Daily Journal as a proud new addition to Ukiah’s thin blue line. He stood accused of groping the defendant, Brandie R. Allen, who was charged with being in possession of a meth pipe and resisting arrest.

Allen
Allen

Defense Attorney Eric Rennert (the same lawyer who won the acquittal on the earlier DUI involving Vicodin) said that Ms. Allen was actually resisting being felt up by Officer Cooper, not arrest, and that the rookie’s supervisor, Officer Kevin Murray, had given Cooper a lewd wink and a go ahead nod. Drug people often place dope in sensitive places, which is why in big cities a female cop is often summoned to search female suspects because male cops can be, and often are, accused of inappropriate touching by female crooks who are attempting to turn the tables on the forces of law and order.

Deputy DA Caitlyn Keane asked, “Why are we putting the Ukiah Police Department on trial? That’s not why we’re here. Was the officers’ conduct lawful? Yes, of course it was. In this case the officer approached the defendant and searched her the way he was trained at the Academy and at the Ukiah PD. You may disagree with it, but it’s lawful. Defense made a point that Officer Cooper didn’t ask if he could search her, but he didn’t have to. And the officer was not being evasive on the stand, he was being honest. He has no reason to go up and grope the defendant. And he certainly wouldn’t do it with his training officer standing right there.”

The jury came back with guilty verdicts, resisting arrest and possession of paraphernalia — not the groping and sexual harassment the tweeker mom had hoped for. The People were asking for 100 hours of community service, and two years of probation with a condition that any officer could search Ms. Allen without reason at any time of day or night.

Ms. Allen said if these guys were going to grope her any time, anywhere they felt like it, she moving to Hawaii as soon as she possibly could. She said she, along with her husband and three children, were homeless in Ukiah anyway. She asked to have her community service and probation transferred to Hawaii, and Judge Moorman wasted no time granting the request.

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