Last week all the principal players at the courthouse, that is the presiding magistrate, Judge Ann Moorman, the District Attorney, David Eyster, and the Public Defender, Jeffrey Aaron, all got in on the act to decide the fate of Tai Abreu, whose plight has been thoroughly examined and reported in this newspaper for neigh on 20 years now. Lawyers, it seems, are all actors by default if not intentionally. They love the limelight, mugging for the camera, delivering statements, getting into print, and making the news.
A particularly egregious instance of this icky trait happened when Mr. Abreu’s lawyer, the talented and effective Jessyca Hoagland of the Office of the Public Defender, was elbowed, shouldered and, for all intents and purposes, shoved out of the way by her boss, the newly installed Mr. Aaron, who sent Ms. Hoagland away on some secretarial errand or pretext and took over Abreu’s case when he (Aaron) belatedly realized how closely it was being followed by this newspaper.
Mr. Aaron doesn’t seem to be much of a reader. A profile of Aaron we published some weeks ago caught his attention, piquing his vanity, obviously, but apparently not his interest in anything but his own self. He had no inkling we were following the Abreu case until he found himself standing in line behind one of his underlings, Ms. Hoagland; that is, after he brought in the Simon Thornton case under the same statute.
Mr. Aaron came up to me a couple of weeks ago with the “news” that he was going to be the first local to try out the new legislation, SB 1743, with the Thornton case – blissfully oblivious of the fact that Tai Abreu’s case was already well underway; to say nothing of Aaron having no clue that we had covered Thornton’s trial – which he proceeded to tell me all about. Incidentally, instead of promoting any of the experienced and competent lawyers already at his office to the better-paying position of Assistant Public Defender, Aaron brought in an old pal of his for the job. And, parenthetically, the only person at the courthouse who has shown any enthusiasm for Jeff Aaron has been – yes, you guessed it – David Eyster.
As we were waiting for Mr. Eyster to arrive for the Abreu case – and nobody could find him – Judge Moorman grew impatient and called another case on the docket. But the defense counsel wasn’t there, so the judge asked Ms. Hoagland if she would be good enough to find out who at her office was assigned to the case and get that lawyer on the ball. Hoagland said she would, and hurried off to do the judge’s bidding. And all this time Mr. Aaron – the person who is supposed to be in charge of the office -- was sitting right there, entranced with his cell phone screen. Why hadn’t the judge asked Aaron? Wouldn’t he be more likely to know who he assigned the case to? Judge Moorman didn’t say; she merely frowned at Mr. Aaron, for quite some time, but he never looked up.
When Eyster finally arrived, Aaron was starting to come out of his phone-trance. He had somehow caught on — perhaps via a text message from his trusty Assistant? — that Abreu’s case had precedence over Thornton’s and so he bustled officiously into the balliwick, shouldering Jessyca Hoagland out of the way and sent her away with a tersely hissed order to scram; then Aaron told the judge he would be taking over Abreu’s case.
Two days earlier, DA Eyster had told the court he was challenging the constitutionality of SB 1743. Eyster repeated this challenge and Aaron said, with an air of fatalism that, in that case, there was nothing to do until the court of appeals had resolved the issue of constitutionality. Judge Moorman smiled indulgently at Mr. Aaron, like you would at a kid whose feelings you didn’t want to hurt, and told him she couldn’t “just skip over it.”
The question of constitutionality regarding SB 1743 arose last month in Orange County where Judge Gregg Prickett ruled, “The Legislature cannot amend or redefine murder in order to avoid the penalties that Proposition 7 set for the crime, and cannot reduce punishment for specified felony murders without the supermajority required by Prop. 115.”
This ruling has been appealed, and the appeal is no doubt what Aaron was referring to when he said they would all have to just wait and see.
As reported in the San Francisco Chronicle by Bob Egelko, “California voters set the rules for felony murder in 1978 when they approved Proposition 7, which expanded the death penalty and also allowed additional categories of accomplices to be charged with first-degree murder. He also cited a 1990 ballot measure, Prop. 115, which allowed more non-killers to be charged with first-degree murder and said the Legislature would need a two-thirds vote to prevent those murder prosecutions. SB1437 did not win a two-thirds majority.
“Attorney Kate Chatfield, policy director of the San Francisco organization Re:Store Justice, which sponsored SB1437, said Props. 7 and 115 both established punishment for certain crimes but did not define felony murder and left lawmakers free to do so. Accomplices with an active role in a murder can still be charged with capital crimes, she said, but the Legislature had conducted a “thorough constitutional analysis” and was entitled to deference from the courts.
Skinner, the law’s author, said in a statement, “I look forward to the state appellate court overturning this wrong-headed decision.”
When Moorman insisted that the hearing on the consitutionality of the law would be heard by her, a date for the hearing was set for June 13th; as to the brief for the merits of Abreu's case -- already written and submitted by Hoagland — Aaron wanted more time. A time waiver was taken from Abreu and a date set for May 6th, for Aaron, and May 28th for Eyster's response.
The good news was that DA Eyster had finally got the trial transcript for Abreu's case; the transcript for the Thornton and Johnson case is still at the courthouse, and won't be any trouble to find.
The law, curiously enough, seems to have copied art in this instance. The felony murder rule, succinctly paraphrased by Captain Call in Lonesome Dove, to his former fellow Texas Ranger Jake Spoon, is: “You ride with outlaws, you hang with outlaws,” and meant for practical purposes if you were present at a murder, you went to prison with the actual killer. The novel, written by Larry McMurtry, published in 1985 was hugely popular and the HBO TV series even moreso when it aired in 1989 – just prior to the 1990 ballot measure, Prop. 115.
Former Assistant DA Paul Sequiera quoted the line from the Larry McMurtry novel in his closing arguments when he prosecuted the Willits Mafia thugs who killed Joe Lateral at the Bushay Campground several years ago, and won the conviction of all the participants under the felony murder rule. Two of them, Simon Thornton and his co-defendant Marvin Johnson, are both seeking relief under the new law, along with Tai Abreu.
EDITOR ANDERSON ADDS: And then there’s simple justice. If three people are found guilty of murder on the same set of facts, but two of those persons are allowed to plead out while the third is assured by his crazy and incompetent (no contradiction) attorney to take those facts to a jury and receives life without the possibility of parole, where’s the justice in that? Abreu, it can’t be said often enough, 19 at the time, got a one day trial during which his defense called no witnesses on his behalf and presented no evidence in support of his defense. Eyster is sure to claim that Abreu has been turned down on appeal, which he has, but appeals are based on the issues raised at trial, of which there were none during Abreu’s one day lynching because, for all practical purposes, Abreu’s defense raised none beyond a lame argument that he was improperly advised of his right not to incriminate himself before he talked to the police. Losing sight of simple justice is nothing new in the justice system, but in this case keeping a guy locked up forever who doesn’t need to be locked up is murdering him, too.
A case I took a personal interest in has been dragging through the courts for a few years now, since back when I first took up my station at the AVA’s Ukiah Bureau. Late one night, as I was reading in bed (don’t try this at home, if you have spouse, by the by) I heard a terrific roar of accelerating engines, squealing tires, and a hellish howl of sirens that multiplied in number until I was in fear of my eardrums bursting.
I shuddered to think what crime was afoot.
A day or so after, however, I found the subject of the chase, Jacob Silverman, in the booking log at theava.com.
As the case proceeded – and it has been an exceptionally long one – first a public defender was assigned, and later attorney Al Kubanis. These lawyers were all fired by Mr. Silverman through Marsden (lawyer replacement) hearings, quite a few hearings (before the one involving Kubanis, there was an exchange between client/lawyer that was quite heated and Al was actually taunting Jacob, practically begging the latter to fire the former!) – wherein the public is excluded from the courtroom, and so we never heard the why and wherefore of Silverman’s request to sack his lawyers.
Other motions have been filed by a succession of lawyers, and currently Silverman is being represented by Angelina Potter, a private attorney, formerly of the Office of the Public Defender. Ms. Potter, on her client’s behalf and at his specific insistence, has brought a Pitchess motion, most recently, and the motion was heard by Judge Ann Moorman last week.
At first the Pitchess motion sought to pry into the personnel files of three Ukiah Police officers, naming Edwards, Chapman and Murray, saying Silverman wanted to snoop around in the named officers’ files to see if he could find any kind of prejudice towards his, Silverman’s, ethnicity — what is generally termed a "fishing expedition". But on the second day of the hearing, Defense dropped this part of the motion (perhaps under advice from the defendant’s lawyer on the advisability of making such an asinine claim in such a liberal county) and focused entirely on only one officer, Kevin Murray, instead.
Ms. Potter said she would no longer pursue the “excessive force” angle either, as to the collision when the fleeing suspect was brought to bay, jumped out of the vehicle with his co-defendant and fled on foot. Officer Kevin Murray was first on scene, and at that time was easily the fastest runner on the force. He identified Silverman as the driver and also found the bag of weed and meth Silverman is accused of tossing on a hillside. Defense is now calling into question Officer Murray’s “morally low character, and dishonesty.”
Judge Moorman said, “What does that even mean, ‘morally low character’? Now, dishonesty, I know what that means, and you have no showing of it whatsoever, counsel. So I need you to explain that one, Ms. Potter, to connect the dots. It strains credulity a bit,” she grinned gamely at her indulgent understatement, “that because Officer Murray made the ID and found the bag he must be making this up.”
Ms. Potter had a long consultation with her client, Mr. Silverman doing not most but indeed all the talking, Ms. Potter nodding deferentially. “Your honor,” Potter eventually said, “Your honor we have nothing else to go on.”
“You’re not listening to my question: You are asking for a whole panoply of information you are not entitled to. What’s your response?”
Again Potter turned to Silverman and what looked like a lecture began, with Silverman talking and Potter listening. Is this what used to be called a Dutch uncle? Is that too bigoted, too taboo?
Deputy DA Luke Oakley, as mild mannered and unassuming a prosecutor as I’ve ever seen, has been prosecuting the Silverman case. Oakley is a careful, thorough, and determined prosecutor, who leaves nothing to chance.
Now, we have heard Ms. Potter’s complaint, which has validity (please see my year-end awards for reference on this issue), that men, especially big fat men with white skin and receding hairlines are taken more seriously by juries than petite women like herself. And whether this is true or not, I can only report that Deputy DA Oakley, like Ms. Potter, would have to stand on a peach basket to groom a pony’s ears.
But in this hearing, Ukiah City Attorney Rappaport was brought in and he said, “It looks like we’ve come to the staging issue. Defense refers to prior crime scenes where items were moved before photographs were taken. The bag recovered from the hillside and cell phones from the floor were placed on the seat of the vehicle, then photographed. If defense is saying these items were in one location rather than another before this was done, before these photos were taken, well, that’s not in dispute. What defense is alleging is that all these officers, including the CHP officer who investigated the collision, that if they all disabled their cameras, in anticipation of what eventually happened, may be sloppy or even negligent, but it is not a basis for opening these files.”
Rappaport and Silverman are both of a size; that is, both tall thin, reddish-blond men with sparse hair and long appendages. Evenly matched, you might say, speaking of size, much like Potter and Oakley.
A captain from Ukiah Police was present with the files – I never caught his name – and just as I was about to ask, we were all ordered out of the courtroom so the judge could look at the files. I never heard how Judge Moorman ruled …
“Suspense,” Dr. Swift tells us, “is the life of a spider.”
Next week I hope to have an answer.