Wall to Wall Law
3.
From the day of my
arrest everyone told me: Get a good lawyer. Run; don’t
walk to a good lawyer. A lawyer can save you. Bring all your
money.
I made some phone
calls. A couple of lawyers told me that they didn’t do criminal
law. I spoke to a woman who did criminal law but she sounded
very negative. I told her what had happened and she spoke to me
with a skeptical tone as if she doubted every piece of what I
was telling her. It was like I had fallen into some sewer and
had called her to ask if she would sponge me off. Sure she
would. She wanted $10,000 to start. But she made it clear we
might not win. There would be no guarantees. She didn’t seem to
care if we won. She would get paid one way or the other. I said
I’d think about it and call her back.
I soon found that
attorney’s fees for a case like mine would most probably put my
bookstore out of business. I could win my case but lose my
livelihood. A typical figure I was quoted was $200 an hour, but
for that $200 an hour no lawyer could say how many hours my case
would require. What they wanted was a blank check. What they
wanted was nine pounds of flesh. I would have given it to them
but I’m not an elephant: I don’t have nine pounds. I simply did
not have that kind of money. It was the kind of money that would
make me homeless. I felt like telling one lawyer, “What the heck
is this? Cash and carry justice? I’m innocent! Somebody should
be paying me.”
The court appointed
an attorney for me. I think the concept of court-appointed
attorneys is a beautiful notion. The poor, the less educated,
the foreign born, the weak can have someone defend them. It’s
something nice to think about.
I first met my
court-appointed attorney, Mr. Shoe, in the holding tank of the
courtroom specially assigned to handle domestic violence cases
at the Hall of Justice. I was still in custody. I’ve mentioned
this before, but the holding tank is a concrete room with a
bench and a toilet. I was dressed all in orange with about
fourteen other men. Mr. Shoe came into this holding tank to talk
to several prisoners, including me. He was young, well groomed,
wore a nice suit, had glasses. He could have just stepped out of
a glossy men’s magazine. He was such a contrast to all the men
in jail outfits. (Very early I noticed how most the lawyers were
white and most of the men in custody were minorities) He had
several blue folders and a pen. The guard locked him in the
holding tank with us. When he called out my name, I walked over
and told him I wasn’t guilty of what they had charged me with.
He said that was something we had to talk about later. Today he
wanted to show me the charges the D.A. had filed against me.
Five counts. It was his job to confirm I intended to enter
innocent pleas.
Later, when we were
out of the holding tank and in the courtroom, Mr. Shoe entered
“not guilty” to the five counts. I had no chance to talk with
him. He was too busy. He gave me a slip of paper with his name
and a telephone number circled. He said the best time to call
was after two but it might be hard to reach him because he was
extremely busy.
After I was
released from jail, I tried several times to phone Mr. Shoe but
I kept getting the answering machine of some woman. Who was she?
By making several other phone calls, I learned the number was
the right number but Mr. Shoe hadn’t yet changed the phone
message. He was too busy. He had just joined the San Francisco
Public Defenders office.
On one of my visits
to court, I was taken out into the hall and told by Mr. Shoe,
“They are really going after you. Not only are they not dropping
the charges they have made an offer that, frankly, if you want
my personal opinion, stinks.”
“What is it?”
“If you plead
guilty to one count of domestic violence with injury, they will
recommend no jail time and drop the four remaining charges. It
would be on your record for the rest of your life. Domestic
violence with injury is very serious. It’s one step below
aggravated assault, which is one step down from attempted
murder.”
I asked Mr. Shoe
why they had so many charges against me. My wife had cut her
hand when she had punched out the window and it seemed they had
turned that into five separate charges. He explained that was
normal. The D.A. loads on the charges so they have a better
bargaining hand. Furthermore if the case should go to a jury, if
the case is weak, the jury was more likely to convict on at
least one of the charges.
“I don’t
understand.”
“If the jury finds
you innocent of most charges but convicts you on one or two of
them, then the jury might think they are doing you a favor. It
gives the D.A. better odds of convicting you. And it also gives
the D.A. a better chance to force you into a plea bargain.” He
sat on the bench out in the hall, holding my folder and added:
“It’s up to you if you want to take the deal. The good news is
that you wouldn’t face jail time. This is your first offense.”
I reminded him that
it wasn’t even my first offense, because I was not guilty of
these accusations. He nodded and his eyes rolled around a bit. I
said I could not accept their offer. I had not hurt my wife.
I tried again to
explain that I was innocent; that my wife had lied. Not only did
she lie; she also had help and coaching by her friends to pull
off what she had done. Would those people who coached her ever
face justice? He was growing impatient with me. He said, in so
many words, the important thing was not if I was innocent or
not; the important thing was the strength of the case against me
and if a jury would find me guilty. With my wife’s word against
mine, the broken glass, and her injury, they were bound to
believe her. He spoke as if innocence and guilt were secondary
factors. I have heard several lawyers talk this way and it’s
beyond me to understand, because in my shoes my innocence meant
everything to me. My innocence, my honor, my name, my
self-esteem. I would risk going to jail for the chance to prove
my innocence. They had already made an offer to keep me out of
jail. I would risk going to jail and losing my bookstore to
reveal what really had happened. What had happened? My wife had
lied. My wife had lied to punish the non-believer and to secure
her green card. Two birds with one stone.
Mr. Shoe asked me
at one point at yet another court appearance, “The way I see it,
Scott, is the two of you got into a fight. You were struggling
in the kitchen. The window got broken and she basically is
trying to put all the blame on you. Is that what happened?”
“No. We did not
struggle. She broke the window with her fist, she has a black
belt, she had no help from me. I had been reading quotes from
the Koran, sitting in a chair in the kitchen. When she launched
into such violence, I restrained her by holding her wrist, then
holding her arm. My only contact with her was to protect her and
protect myself and calm her down. I was not threatening her. I
was telling her I loved her. Holding someone is not a form of
hitting them. I didn’t hit her. I protected her. I loved her. I
could not understand what she was doing. At the moment I thought
she had flipped.”
“So you’re saying
it was a set-up?”
“It was a
set-up.”
“Still, it will be
your word against hers. I’m sorry to tell you but the jury would
tend to believe the woman.”
Meanwhile, in those
first few weeks while the court process dragged on, I was living
in the back room of my bookstore. My wife had someone bring me a
small bag of my clothes, a toothbrush, my wallet, some mail, my
laptop computer, and a bottle of aspirin from our home. Six days
after the incident her friend came to the bookstore and told me
my wife had moved completely out of the apartment we had shared
and I could return home. The only trouble was that my home
address was written down in the court stay-away order, so if I
went home and someone made a phone call to police and the police
came and rang my doorbell, I would be arrested and charged with
a violation of the court order; subject to up to one year in
jail. I can’t say it was deliberate, but it did bother me that
my wife, who had made all the false accusations to the police in
the first place, was telling her friend to tell me to go on
home, where I would have been in clear, direct violation of a
court stay-away order. Probably my wife just didn’t know. In any
case I didn’t return home. I stayed in the back storage room of
my bookstore for six more weeks.
Early one morning
during heavy rains I was writing in my journal in the cluttered
back room of my bookstore when a sheet of water came pouring
from the outside door into the room where I was sitting. The
drain had gotten clogged and the drainage from the roof was also
clogged, so about 300 gallons of water were pouring into my
little room. The room and the back half of my bookstore got
flooded. But despite soaked carpets and later a terrible smell
that lasted about two weeks, I stayed back there. I could not
return home. I worked myself dizzy sponging and carrying out
buckets of water. At the store I had no shower. I had no hot
water. I had no stove. I was seriously low on money. Furthermore
my wife had gotten two jobs and claimed she had no employment
and was penniless, so I was ordered to start paying her monthly
spousal support through her lawyer.
During the
following weeks the bookstore got flooded twice more. The
newspaper said it had been the wettest November in fifty years.
All my wife needed to do so I could go home was call the D.A.
and tell them she had officially moved out of our residence so
the judge, in one of my numerous court appearances, could
officially modify my stay-away order. But my wife never did
that. I was not allowed to ask her or ask anyone to ask her. I
was ordered by the court to have no contact. The one person who
could have solved this for me was Mr. Shoe, but he never had any
time. He had a gridlock of other cases he was handling. He tried
twice in court to mention it to the judge, but he just couldn’t
manage. One day I called him and he spoke with me for only a
minute, telling me he had just been assigned thirty new cases.
Most the time when I called, I only got his answering machine.
Many weeks passed.
I liked Mr. Shoe. He was a nice, affable man, but he was always
busy. He was loaded down with so many cases and given so many
new ones each week that it was a bit absurd. It was very absurd.
Since most cases, say 90%, never go to trial, I suspect his
habit was to do almost no preparation for trial for any
particular case until the very last minute. In my case, he and I
had had a few ten-minute conversations in the weeks leading up
to trial but we had never sat down together and gone slowly and
carefully over the case. Not even once. He had obtained no
witnesses. He had obtained no expert witnesses. He had even been
unable to get a certified copy of a court record from another
court where my wife had plainly contradicted herself about the
incident. He had asked me to do that for him. He was too busy.
He had not obtained the 911 tape of my wife calling the police
to contrast what she was saying with what she later told the
police. He had no investigation at the scene of the incident to
produce direct evidence that her chronology of events was out of
whack. He had not even found out about the Muslim woman upstairs
whom my wife had told I had never harmed her (I found out about
this months later from her husband).
I’m not a lawyer,
so maybe Mr. Shoe was doing a fine job. Maybe our defense was to
present no defense, just challenge the evidence and witnesses of
the D.A. After all it is for them to prove beyond a reasonable
doubt that I had pushed or pulled my wife into the window and
she hadn’t broken the window herself. This is the “go limp”
defense. Go limp, play dead, and maybe the steamroller will not
roll over me. But if that were so, then why did Mr. Shoe tell me
so often that the jury would likely convict me?
Maybe no defense
was our best shot. Maybe I needed to earn $200 an hour to see
these things. But honestly, I didn’t want to play cards. I
wanted everything spread out for the jury to see. It just seemed
they had to see how outrageous this all was. What kind of injury
had my wife sustained? A cut to her left fist. Isn’t this a bit
odd? She says she’s being pushed but falls fist-first into a
window? Isn’t it odd that this woman has a black belt? Isn’t it
coincidental that this incident secured her immigration status
and occurred at just exactly the best time for this?
As much as I liked
Mr. Shoe, he was so busy that I thought he was totally
ineffective. I don’t think it’s his fault. I believe most the
defense attorneys in the Hall of Justice are in the same
position. How can I explain it? They are given an insane
workload. They must work with extremely complex legal rules that
sometimes even the judges don’t understand. All cases are
treated as if they are going to trial, but only a fraction
actually do. It’s not justice; it’s theater. It’s like having a
hospital where only a small crew of doctors handle literally
thousands of cases. These doctors might be fine talented men.
The doctors might be good-hearted and want to help people. But
you tell these doctors, “OK, that man needs his appendix taken
out, but you have ten minutes. Broken leg? Do your best in five
minutes. Open heart? Don’t exceed an hour. Brain surgery? Do it
before lunch.” The laws of physics just prevented Mr. Shoe from
doing anything like the job he should have done.
It wasn’t justice.
It was black comedy. (Months later he even told me in court when
I was trying to speak and show the judge a letter, “Be quiet,
don’t say anything to the judge. It’s just a charade!”) He had
these rows and rows of men, all needing his help and many facing
some very serious stuff. How much time could he spend on me? He
had men who were desperate to avoid long jail sentences. Men who
wanted to see their kids again. Men who were desperate to hold
onto their apartments, their wives, and their jobs. Men
suffering from drinking problems, prior convictions, insanely
complex family situations, and the sometimes-superhuman, simple
task of keeping jobs and paying rent. Men falsely accused.
