Archive for December, 2013

Law and Order: SFOh my god I’m glad that was over quickly

Posted in Uncategorized on December 17, 2013 by Misanthropic Mom's Group

His first mistake was being named Darby. Then he had a Red Monkey.

So I got called in for jury duty. This was the first time since my Tuki was little that I’ve been called, and I didn’t think I could get away with the mommy exemption for a 10 year old and a 14 year old, so I was stuck going in. I actually wouldn’t have minded at all at another time of year, but I was worried about sitting on a long trial over the holidays. I’ve only got the kids with me until Christmas this year, and then they are off with He Who Shall Not Be Named for two weeks. I didn’t want to miss the whole vacation. I considered many ways I could make myself look ineligible, and I probably could have, but in the end my basic aversion to lying kept me in the jury pool.

Initially I was pretty worried about my holiday plans. A couple hundred of us were in the potential juror holding pen on Thursday morning when we were told that the room was going to serve as a temporary courtroom for choosing the jury on a lengthy trial. Fuck. The judge came in and spoke for a while and told us the trial would last until at least the middle of January, so anyone with reasons that they wanted to be excused needed to fill out a request form at the outset. He said that of course the chances of actually being picked for the final jury were slim, but that he would not be listening to excuses after they began the jury selection process. He also warned that being excused from his trial would not necessarily mean being excused in general. Some people would be asked to be in the pool for a different trial, based on what their excuse was. So I decided to see if I could play the childcare card. I didn’t want to risk being on a long trial, even if the chances were slim of being chosen. I asked for an excuse based on the fact that my 10 year old was already home on Christmas Vacation, and that asking Mark to watch her would be a hardship. (They didn’t need to know that she spent the day I was gone teaching herself to make Jammy Dodgers.)

So I did get excused from the Long Trial. I heard rumors that it was a murder trial… did I mention that this was the criminal court building? Even though under ordinary circumstances I’d have really enjoyed a murder trial, I was happy to be let off. Downside: I was asked to return after lunch. No general excuse for me. And then after lunch ALL of us who were asked to return were sent down the hall together to be the jury pool for a different trial. Yep. Every single potential juror had made some sort of case for being excused. Not one of us wanted to be there. We were given the standard rigamarole about picking an initial group of 24 to be weeded out in the process of jury selection. The seats were numbered and people were asked to sit in the seat in the order in which we were called. One guess who was called as Juror #1. At that point I was resigned to my fate.

Jury selection took about 30 minutes. The judge told us it was unbelievably short. I think they kicked off about 5 people and were done with it. The two bright spots were that the judge promised the trial would be over quickly. He told one potential juror with plane tickets for this coming Thursday that she was certain to make her flight. (Although the attorneys kindly booted her anyhow.) The other bright spot was that this judge doesn’t hear trials on Fridays. So we were selected on Wednesday and the trial began on Thursday to resume on Monday and go for the presumably short duration.

So. Yay Me. Juror #1.

At least the seat was in the back row.

I could never have been on a trial that lasted longer than two days. Trying not to form a premature decision was hard. Being unbiased was harder, because the defendant’s name was Darby, and that is almost too douchey for words. Not talking about it was torturous, but even worse was the admonition not to look anything up. I can barely make it through a TV episode without looking something up on the internet. I couldn’t. Even. Google. I might as well have been living with stone knives and wearing bearskins. The pain. The horror…

Anyhow, I won’t go though a point by point of every tiny detail. The defendant was arrested for a DUI. The SFPD predictably screwed up the paperwork, but not so badly that it could not go to trial. The ADA was so young he looked like he was conducting a high school mock trial. He stood there at the desk in a suit that his mommy probably picked out and smiled and made eye contact with each juror, just like he was taught in lawyering class. The defense attorney looked like Ned Beatty circa Homicide: Life in the Street, and he didn’t seem to give a crap what the jury thought of him. The judge reminded me of Joe Biden. Most of the time he looked bored, unless he was telling the ADA how to do his job. (“We have overhead projectors for these things. You might consider finding one. Just saying.”) There weren’t any spectators in the gallery. Nobody seemed to care very much. The defendant was stony faced throughout, and never made eye contact with anyone.

Just the facts, Ma’am. Alright. Nearly two years ago at 2:30 a.m. on a Sunday (which for normal people still counts as Saturday night) a veteran CHP officer was driving on the freeway responding to a complaint that there might be a car moving in the wrong direction. She did not find one. What she did find was a car parked in the “gore point” of an exit ramp. For normal people this is referred to as the little triangular area thingy between the freeway lanes and the exit lane that you aren’t supposed to drive on, but very occasionally do when you really fuck up and almost (not really almost) miss your exit, and then hope that the CHP didn’t see you do it. That part. But this car was parked in it. According to the officer, so close to the edge that the driver’s side mirror was actually over the line into the slow lane of the freeway. She pulled up behind it with all her nasty bright spotlights on and saw no movement, so she got out to investigate. Not having a death wish, and following proper procedure she went around the passenger side of the car. The rear windows were slightly fogged, but the front was clear enough to see a passenger slumped forward asleep. And a driver slumped backward in his seat. Also sound asleep. She rapped on the passenger window and no one moved. She moved around to the front of the vehicle and rapped on the windshield. No one moved. She felt the hood of the car and found it to be warm on a cold January night. She snapped two pictures of him napping with her iPhone. She then moved around to the driver’s side of the car, skirting an active freeway lane, and rapped loudly on the driver’s side window. The driver woke up slowly. She motioned for him to roll his window down. He did not do so. She opened the driver’s side door and immediately smelled alcohol. She asked the man in the driver’s seat to give her his license. He fumbled in his pocket and pulled out several cards. He handed her his Amex card. She repeated that she needed his LICENSE, at which point he dropped all the cards in his lap. She pointed to the driver’s license and told him to give her that one, which he did. She asked if he had been drinking, but he did not answer her. She asked if he had been driving and he did not answer her. She repeated her questions, and he said that he had been driving. He said he had been at a bar in the Mission between 6 p.m. and midnight and that he had “a beer and a Red Monkey.” (Tip: NO ONE knows WTF a Red Monkey is. Eventually a forensic expert told us it is a frou-frou yet lethal mixed drink with various recipes, but that it generally contains about 7 shots of hard alcohol. Seriously, if you are gonna get arrested for a DUI, IMHO  you should be drinking something hardcore like Boilermakers. BUT I did not let that influence my decision. I really didn’t.) She told him to remain in the car and went back to her patrol car and called for backup because she was alone that night and was really meant to be patrolling the Bay Bridge. On her way back to her car she took another photo of his car to show its location, and that it was really parked where she said it was.

Within minutes another CHP vehicle arrived bearing two more officers, jaded 10 years on the force utility belt cop (Seriously, he didn’t fit in the witness chair because all the gear on his belt made him too wide. He was wedged in so tight I was afraid his gun might go off.), and a fresh scrubbed little girly thing who looked like a bunny rabbit and had at that point about 5 months under her belt. Manly cop went and talked to the original Chip, and then went to get Red Monkeyboy out of his vehicle. Miss Bunnycop went to direct traffic to make sure no oncoming cars smashed into anyone. She testified that Monkeyboy had an unsteady gait as her partner removed him from his vehicle and walked him back to their patrol car, where he was cuffed and “helped into the vehicle”. The original Chiplady got the passenger into her patrol car, Manly cop got into Monkeyboy’s car, and they all drove to a safer location. Which was literally around the damn corner. Chiplady then took Unidentified Passenger and left the scene. Manly cop inventoried Monkeyboy’s car and arranged for a tow, and Bunnycop performed the field sobriety tests. Monkeyboy did not perform well on these tests. Monkeyboy was arrested.

The only item of any note found in Monkeyboy’s car was a 750ml bottle of Southern Comfort (More chick drinks! Yuck!), half full. Officer Nightstick did not note in his report, nor could he recall, where in the vehicle this bottle was found, but I am guessing that since Monkeyboy was NOT charged with an open container violation it was actually in the trunk. This matters later on a bit, but since I was not allowed to guess at things I did not weigh it into evidence. Now, however, I count it as one more of the many strikes against our hapless defendant.

Monkeyboy was then taken to the jail. He “consented” to a breathalizer test. (Although if you read the fine print on your CA driver’s license I am pretty sure the test is only optional in that you can refuse it, and thereby forfeit your license.) He took this test at least twice. Officer Big Stick said on the stand that he conducted it four times, but we only had records of two. In any case the machine was not able to make a valid reading on any of the attempts because of “insufficient volume”. There was testimony on the stand that the officer witnessed the defendant covering the mouth end of the tube with his tongue during the tests, yet this fact was not in any official report. After 2-4 failed breath tests Monkeyboy was informed that they would need to perform a blood test, and once again he “consented” to this. A phlebotomist employed by a contracting agency was brought in, and Bunnycop officially witnessed the drawing of the blood. She also did not complete all of the chain of custody paperwork entirely properly. On the evidence envelope she neglected to sign her name twice as requesting officer AND witnessing officer, though she did sign it once. On the tamper proof seals to the blood vials she filled out all the information, but failed to initial them. On a procedural checklist (an internal document meant for compliance to procedure but NOT required by any law) she initialed that all the steps were performed properly, even though as noted she had neglected two. Also when she wrote in the date on the checklist a small portion appeared to have been overwritten to correct a mistake, yet was not initialed as such. Bunnycop freely admitted that these were all errors on her part. From that point forward all proper chain of custody steps were performed, the blood was tested, and it was found that Monkeyboy had at the time of the blood draw, 4:15 a.m., a blood alcohol content of 0.14 percent. Monkeyboy was charged under two counts of the CA code of regulations title 17, to wit: driving while intoxicated and driving with a BAC greater than 0.08%.

These are two separate charges, although that makes very little sense. But whatever. Two charges.

Those are the facts that were in evidence. Red Monkeyboy was found passed out in the driver’s seat of his car, parked in a dangerous and illegal location at about 2:30 a.m. He was visibly and pungently intoxicated and admitted to having driven and to having drunk stupid beverages earlier in the evening. Some key things that were NOT mentioned at the time of arrest: Monkeyboy never said or implied that anyone else was ever driving. Neither did he allude to having drunk anything while parked at the gore point.

We got to hear evidence from the three officers, and while they did kinda fuck up, none of them seemed to be lying. We also got to hear testimony from the toxicologist, her supervisor, and lastly the head of the forensics lab for San Francisco. That last was actually really fun. He was charming and vaguely Slavic and obviously not only knew his job backwards and forwards, but really enjoys it. He was a wonderful witness. Old Bully Pulpit the lawyer tried to be sneering at him on cross and failed miserably. He was the definition of an expert witness.

Now at this point I feel the need to mention that I abhor lawyers. I worked for lawyers. With very few exceptions they are not good people. But since there were lawyers on both sides of the case I felt that I could make a fair decision without my biases affecting the outcome. While the defense attorney looked and acted like a man who never uttered an honest word in his life if he could help it, the baby ADA seemed like he needed help tying his shoes in the morning. I know they don’t make wingtips with velcro closures, but I didn’t actually check to see if he was, in fact, wearing loafers. Also, he reminded me of the guys I used to work for. Ridiculously young and naive does NOT equal honest. Really. I never knew a lawyer who could see a loophole and not dive straight into it, even if he had to grease himself up first. (Except for you, sweetie. You know who you are.)

That said, while I found Junior’s attempts to “connect” at best amusing and at worst kinda smarmy… well, he wasn’t an out and out asshole. And he didn’t FUCKING INSULT MY INTELLIGENCE! The Ole Warhorse took every opportunity to mention things that were not in evidence, had no bearing on the case, or were outright lies. He repeatedly implied, but never produced any evidence for the fact, that the phlebotomist in the case had in some way tainted the blood draw. He made wild speculations as to motives. He threw in red herrings. He repeatedly (and I think intentionally) mispronounced the names of the witnesses as a subtle way of belittling their testimony. He misrepresented facts in evidence in what I could only take as a blatant attempt to confuse the jury, and make it seem as if there were inconsistencies that were not there. He did everything in his power to make Bunnycop cry. He tried to bully every witness, and closed his case by trying to bully the jury. At one point when cross examining the toxicologist who performed the lab tests he made reference to something she had said “in the other trial”. The judge instructed us to ignore the statement, and I did not consider it when making a decision, however it made me wonder if he wasn’t deliberately trying to provoke a mistrial.

But none of that was the worst. The worst thing was that I found myself SO disliking him that I was metaphorically bending over backward to try NOT to let it sway my decision. I expected, due to pretrial instructions and the attorney’s opening statements, that Monkeyboy would not be testifying. However, once the prosecution rested, I was actually eager to hear from the defense. Surely there would be some explanation for all the veiled hints he had been throwing at us during his cross examinations of the prosecution’s witnesses. Surely he would either unravel the prosecution’s case, or I hoped, offer some even remotely reasonable alternate scenario in which Monkeyboy could be not guilty. I wanted to hear how there was a case other than in missing initials or veiled innuendo of misconduct, never even entered into evidence, let alone proven.

The Artless Codger put one witness on the stand. An old private investigator that looked enough like him to be his brother (but that I suspect, on the flimsiest of evidence, was actually his longtime spouse, having inadvertently witnessed a really pissy spat between them in the hallway about evening plans.) I thought, oh goody! A real PI. What did he dig up? Had he found evidence that the phlebotomist was a fraud who was using her position to deal meth? Maybe the defendant had a long lost twin who he was protecting. I was ready to accept just about anything at that point.

Here is the evidence he presented. He drove with Monkeyboy to the gore point in question and asked him to park in the same spot. He then got out of the car and took some pictures of the car. One picture showed the car to be in approximately the same position as the bad iPhone photo taken by Chiplady. Another from a different angle showed that the car was NOT, in fact, parked with its driver’s side mirror extending into traffic. He opined that the original photo appeared to show that it was, but that was a result of “parallax distortion”.

That’s it. That was the end of the defense case.

Fuck me. Seriously?

On the one hand… Yay! I’m going home today. Two days and DONE!

On the other hand, SERIOUSLY???

The head of forensics for SF, Dr. Utterly Charming showed with solid math and science that a man of Monkeyboy’s build simply COULD NOT have had a blood alcohol level of 0.14% at 4:15 a.m. without having been much drunker when he drove that car to the gore point. Three police officers witnessed that he was impaired between 2:30 and 3 am, but was NOT exhibiting increased impairment. Even if for some blindingly unlikely and stupid reason he was sober when he drove to the gore point and decided it was a good place to park and get drunk in his car, he would had to have stopped drinking by 1:45 am to reach a peak of intoxication by 2:30. The hood of his car was warm and his windows were relatively unfogged at 2:30 a.m. So even given the completely UNREASONABLE doubt that he was not drunk BEFORE he arrived and chose that particular spot to party down… it STILL doesn’t add up.

It really didn’t take us long to find him guilty. We found it necessary to go through the motions of discussion and reviewing the evidence because we felt obligated, but only one juror had any doubt at all, and that was based on feeling nervous about declaring him guilty when the police procedure had not been completely followed. Even though that one juror freely admitted he had no real doubt as to guilt, and really just wanted us to note his objections.

We found him guilty. If we had the option to find him Guilty as Fuck, we likely would have done so. He was so very, very guilty.

Still… he pulled over. He did drive drunk, but he pulled over before any damage was done. I can only hope that the judge took that into account on sentencing. We were not allowed to hear that part. We had to leave after we delivered the verdict. And I did a stupid thing after the verdict. I looked at his face. The face that had registered no emotion other than, perhaps, stubborn anger during the trial had crumpled a little. One person, who I can only assume was a family member or girlfriend, had witnessed the last hour of the trial, and she was visibly shaken. I have no doubt that he was Guilty as Fuck, but I felt bad for him. It hurt to affect someone’s life in this way, even if it was only two misdemeanor counts. It was really really real. Not TV. Not a book.

When I came home, I told Tuki I was sad because I had looked at his face when we declared him guilty. She said, “Sometimes you just have to dial down your empathy.”

Tuki is so smart it hurts.

Post Script: For anyone that objects to the title of this piece on the grounds that it did not happen at the airport (SFO), the courthouse wifi connection was named SFO-Public. This was very important to me because I needed to play my silly iPhone butterfly game during breaks. Because. So if you ever find yourself in San Francisco near the Criminal Justice building on the corner of Crackhead & Bryant and you are in need of wifi… You’re welcome.