Last week the retrial of Mr. Chris Mulcahy got under way with some pretrial motions which set the tone for how the case will proceed. What it boiled down to was a question of privacy. The privacy of one party was deemed “sacred” while the other party had none whatsoever, sacred or otherwise.
Mulcahy was tried last year for forging checks at a large Anderson Valley/Hopland wine operation, Brutocao Family Wines. A mistrial was declared when District Attorney David Eyster, who is handling the case personally, failed to convince some of the jurors that Mulcahy had done anything wrong, since CEO Steve Brutocao had given Mulcahy permission to sign the business's checks.
DA Eyster has said that a couple of "nutcases" somehow got on the jury and sabotaged the last trial; he vowed that won’t happen again.
As many residents of Anderson Valley know, winegrowers seem to imagine themselves as a kind of in lieu of nobility. But the owners of wine ops in Napa, Sonoma and Mendocino counties, like all Americans, are in genetic fact, the descendants of exported serfs, religious cranks, and criminals. Elected officials and most newspapers promote this low rent wine fakery and, for the most part, the beer and whisky-drinking masses have been duped into going along with it.
What the DA refers to as “nutcases” are people who don’t treat winegrowers with the proper deference.
Needless to say, perhaps, so do the courts. For what is the use of aspiring to a judgeship or the District Attorney’s office if you can’t expect to rub elbows with these fabulous dukes and duchesses in their high whore house tasting rooms as you chug their pricy plonk as an equal, holding the piss-yellow jive juice to the sky above the golden hills of Mendocino County?
Valley residents will readily recall when Judge Ann Moorman was running for her robe and bench, and she and Judge John Behnke set up a huge pyramid of local wines in Lauren’s restaurant for a campaign reception. It was not disclosed whether the wines were paid for or donated, but it was clear that local winegrowers were blatantly represented, if not invested in the campaigns.
The first order of business last week was a subpoena for two envelopes. Judge Behnke opened one and said it was full of cancelled checks from the Bank of America, Custodian of Records.
“A great many checks,” Behnke said. “Frankly, I don’t understand the purpose of this other curious envelope…”
The DA began objecting about the way the envelopes were delivered, and the court clerk whispered something to the judge, as the defense was asking what difference it made how the envelopes were delivered — if they were dropped off by a FedEx driver, or hand-delivered by some Courthouse courier.
“My clerk just informed me that one of the envelopes was inadvertently opened.”
“See, your honor," Eyster keened. "See what I mean? That’s why I objected to the way this was done.”
One of Mulcahy’s lawyers, Kenyette Jones, said, “The prosecution wants a blanket objection to the whole subpoena, your honor.”
“No, he doesn’t,” Behnke said. “But just looking at what the subpoena seeks and what it produced, I can see that this is going to add up to a huge number of checks.”
Huge numbers of checks and other vast quantities of paperwork was one of the hallmarks of the first trial. And “huge” doesn’t really begin to describe it.
“There’s a huge number of checks here and I’d be shocked if we haven’t seen some of these before… So, I’m gonna have to have them copied if the DA wants copies… Do you, Mr. Eyster?”
“I just don’t want to waive any rights to object.”
Eyster turned to the gallery and asked Steve Brutocao if he wanted to object. Mr. Brutocao said, Yes, he did. So he would have to have a copy of the checks as well. Ms. Jones said she didn’t think it was fair to turn the whole thing over to the DA.
“Okay,” Behnke said, “let’s do this. I’ll make a copy for defense and keep the originals in the court records.”
Eyster said, “There’s been a request from defense for Steve Brutocao’s tax records and he objects.”
“My intention today was to hear the motion [to suppress the evidence]. And now defense has supplied three subpoenas deuces tecum seeking tax returns for the time the defendant worked for Brutocao — Alright, I’ll hear your offer of proof, as to why you need these records, outside the presence of the DA. But since Mr. Brutocao is here we’ll hear his objection first.”
Steve Brutocao came forward and said he considered his tax records “sacred, like my other business records. And I think there are issues that would come out in the public knowledge—”
Eyster: “It’s a privacy issue, judge.”
Behnke: “Like not wanting competitors to know your business practices. I get it.”
Brutocao: “There’s other issues, as well, such as employees might say ‘Gosh, we’ve been underpaid for years’ and distributors could see this and say ‘Geez, it looks like this company is closing down…”
Behnke: “It looks like to me they wanna give this information to experts and at some point someone’s gonna testify in open court as to how any of this information has an impact on the defendant’s case. I presume what they’re looking for is profit and loss rather than incomes to individuals, since the defendant is charged with causing loss of income to the company. I’m sensitive to the privacy issue but can’t determine it in the abstract, so I’ll have to clear the courtroom and hear from them [defense] what specifically they want.”
Eyster: “The People object. We never alleged the defendant forged any tax returns, so I don’t think the court should allow a fishing expedition into personal tax information.”
Behnke: “We all heard of how Mr. Mulcahy signed Mr. Brutocao’s name to a variety of checks, but the intent to defraud pertains to only certain of these and since he’s accused of taking approximately a quarter of a million dollars from Brutocao I don’t think I can be fair without considering what defense hopes to establish with the documents requested.”
The DA announced that the tax returns were not in the county and would be hard to produce on short notice. But at any rate, a certain Mr. Cummings had been brought in from the jail and his lawyer, Lindsay Peak of the Office of the Public Defender, had prepared some orders to be signed by the judge for the involuntary application of psychotic medications.
Mr. Cummings stood in the dock and said, “I’m taking three medications right now and no one has to hold a .38 revolver to my head, so I don’t understand why…”
“Shhhh – hush!” Ms. Lindsay counseled her client in a whisper, then said, “Mr. Commings who is present and in custody remains incompetent to stand trial, according to Drs. Kelly and Pythian, so we would be asking for placement in a suitable facility, your honor.”
“That would be the jail,” Judge Behnke said. “Competency restoration under the current system we have in place, since there is no alternative facility for misdemeanants, becomes, de facto, the jail. Which is to say the restoration will take place in a secure and safe environment, i.e., the jail, for there is no other place for a misdemeanor defendant with mental health problems.”
“Thank you, your honor, Ms. Peak said.
Turning back to the Mulcahy v. Brutocao lawsuit, the judge said he hoped that the little diversion re the dispatch of the unfortunate Mr. Cummings “didn’t bore anyone to tears,” noticing, perhaps, that his lordship, Steve Brutocao, had a constrained look of impatience on his face throughout the brief interruption of his personal interests. The judge then cleared the courtroom to hear defense’s reasons for seeking his lordship’s sacred tax returns.
After lunch, it was learned that the judge would allow the tax returns to be subpoenaed, but great care would be taken that none of the holy information contained therein would be made public. Then came the issue of whether Mulcahy’s computer and cell phone, as well as his wife’s computer and her cell phone, among other things, having been seized by the DA’s investigators, was legal. Behnke ruled it was. Well, then, defense wondered, what about Mulcahy’s right to privacy? Apparently there was a lot of information, personal information, on the computer and phone that were not pertinent to the case. Was it possible that any of this could be returned?
This was all in the starkest contrast to Brutocao’s claim to rights of privacy – which bordered on class privilege and was championed by the DA – whereas the judge had assiduously reassured Mr. Brutocao that this one portion of his privacy, his tax returns, would be safeguarded with religious care.
Mr. Mulcahy’s lawyers had to practically beg the judge to return a few smatterings of his personal information, the entirety of which had been seized and rifled through for over a year.
Justin Milligan, Mulcahy’s other lawyer, said, “The cell phones and computers belonging to Mr. Mulcahey’s wife were not listed in the search warrant, and there was such a large amount of information on them in any case, that we were hoping that they might be returned, especially now that the investigators have had time to thoroughly search and examine the contents of each item.”
Behnke: “The warrant says that with respect to any computers, the police officers are authorized to seize them. To me it seems they were talking about seizing these computers and searching them for relevant materials, so I get that part. Although I understand the results of the search warrant have been unsatisfactory to the DA.”
Milligan: “Yes, but four of the items belonged to Mr. Mulcahy’s wife.”
Eyster couldn’t restrain a chuckle.
Behnke: “Well, yes, but I could put things on my wife’s computer. (Videos of the Mendo Bar Association frolics on the Eel River? We'd all like to see those.) So, why don’t we do this: Let’s see if the DA will be willing to return any of this — apparently it’s dangerous to put words in the DA’s mouth, so I won’t speak for him on that, however…”
Eyster: “That’s right judge; it really is [dangerous].”
Jones: “As for the computers themselves – they’re still with the court?”
Behnke: “Yes, they are.”
Jones: “Will we be advised if they go back to the DA?”
Eyster: “We left those things in your chambers, judge, to safeguard Mr. Mulcahy. So when you say the search warrant has been unsatisfactory to the DA I don’t really know, because you haven’t let me see it.”
Behnke: “Since we’re all here and those computers are still in my office why don’t we—”
Eyster: “We have people in Lake County who can get into those computers and get what we want out of them.” (This may have marked the first reference in history to any kind of expertise coming out of Lake County.)
Milligan: “Your honor, this is overbroad! They have to be specific as to what they want. I mean, they could go in there and look at pictures of Mr. Mulcahy’s wife!” Say what you will about the DA's office there's no voyeur-perv indicators abroad in the office. That we know of.
Behnke: “The Special Master couldn’t do what I wanted it to do in that regard because Mr. Mulcahy wouldn’t give up the password; and I said at the time that if Mr. Mulcahy wanted to go through it with the special master, to protect his personal materials, he could do that, but – lemme get an older file.”
The judge scurried into his office and came back with the older file.
Behnke: “Do you remember the September file? It was filed August 18th, at a pretrial hearing to see if Mr. Mulcahy would disclose the password. He declined and the court informed him that in that case, the computers would likely be turned over to the DA… and that’s the conclusion we’re at with the caveat of evidence code 952.”
Evidence Code 952 is lengthy and involved and has to do chiefly with confidential communications between client and lawyer.
Jones: “Can I simplify this?”
Jones: “He [Eyster] shouldn’t be able to get the computers and then decide what or whatever is relevant. Let the Special Master open it up.”
Behnke: “Without the password, only law enforcement can open it up. And I’m gonna give it to them today.”
Jones: “It puts us in a difficult position of having law enforcement decide what’s relevant and what’s not. We need to be there, all of us, to be sure things are done right.”
Behanke: “We don’t have a facility for that.” Then, turning to Eyster, “Have your investigators take the computers from my office and get it done.”
No facilities for oversight in matters concerning personal privacy; no facilities for mental patients with legal problems; but plenty of disposable income for pricy wines and a humongous budget for protecting the privacy of winegrowers