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Monday, October 7, 2002


If people were made of paper, this just might work

By Scott Harrison




Wall to Wall Law


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.