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Saturday, October 21, 2006

More Adventures In Crime - The Tender Gender

The signs of a decaying civilization may be subtle. Like temblors that merely rattle glassware for an instant, they foreshadow a cataclysm to follow. Case in point: an article buried on page B-5 of the L.A. Times of Saturday, October 21, 2006.

A Riverside County judge dismissed an “indecent exposure” charge against a woman. The controversy that made it news in the eyes of the Times editor was the judge’s reverse sexism, holding that the statute only prohibited conduct by males.

Whether the judge is right about that is of less interest to me than the underlying (no pun intended) facts, which the article didn’t get to until the 8th paragraph. A lady (age 40) complained that a neighbor boy (no age given) was making too much noise playing basketball in his yard. When he ignored her demands, she went onto her sundeck and “’He looked up at her, she looked down at him, and she disrobed.’”

What happened next is the scary part. “The boy ran inside and told his parents, who complained to [the woman]. When she threatened to do it every time he played basketball, his parents called police…. The family has since moved out of the neighborhood.” The “D.A. spokeswoman” commented, “’The whole incident is strange.”

Uh, yeah. Sure, the lady should have complained to the parents instead of taking such drastic action, but the misdemeanor the DA filed (P.C. §314.1) would require the lady to register as a sex offender for life.

Yet, even that is not what I worry about. My concern is for the boy’s well-being. It reminded me of a case I ran across as a public defender years ago in Pasadena. An 18 year old “woman” working as a playground counselor was charged with child molestation for fondling a 12 year old boy on a swing.

I place these stories in the same file as scandals about middle and high school teachers having affairs with students.

I try to imagine myself as a boy faced with these situations. Things were certainly different way back then. Sexism was not even a word. No one’s consciousness was raised above a leer. Sex was a mystery shrouded in an enigma, barely discernible through innuendo and snickers.

If I had been exposed to any of the situations set forth above, I believe we would have told my pals about it. Indeed, I dimly remember whispered hyperbole about such subjects. Someone would claim – to the awed, but skeptical listeners – that he had seen a naked lady, or been groped by “an older” woman. There were teachers whose endowments inspired soaring fantasies, sometimes related as facts.

But try as I might, I cannot conceive of any such event which would have impelled me to rush home after school or play and tell my parents. I can’t imagine a dialogue like this:

“Morty, how was your day? What did you learn?”

“Well, mom, it was a great day. Miss Smith, the substitute, er, taught me a lot, and then at the park, a girl gave me a, whatchacallit, a hand job, and – you know, Mrs. Anderson, she, er, complained about the noise we were making, and she took off all her clothes.”

Now that I think about it, I don’t think my mother would have rushed me to the local shrink – I doubt if she even knew of one – or the principal – and definitely not the police. My mother was - well I guess the word would have been - “earthy.” She delighted in telling a story about how my brother finally beat up the neighborhood bully in front of the kid’s mother who hit her son every time my brother did.

She might have giggled, been a bit shocked, but then might have bragged about it to her friends.

I’m not saying that it was a better world back then. Consciousness raising, over all, is probably a good thing. Adam and Eve had theirs raised – the old “knowledge of good and evil” idea. We were sexist – and racist – and a lot of other evil assumptions.

But I wonder sometimes about lost innocence.

Sunday, October 15, 2006


Paranoia is one of the prime constants of Borenstein’s Law. The Fates and The System all too often conspire to bring our clients down despite the righteousness of their cause.

We are attuned to this defense because we understand paranoia all too well. From the very start, we have felt its force. When we enter courtrooms for trials, the shock wave of contempt directed our way is palpable. Court staff – judge, clerk, bailiff, D.A. – irked that our presence means work and stress, often a tedious trial with a recalcitrant defendant making spurious arguments that must be tolerated.

Yet, the finest rage is directed at the lawyer, not the client. We are to blame. We have failed to “control” the client, to make the case go away by accepting the generous sentence offered. And we will be reminded of it and punished for it all the time we are there.

So I get it when I’m appointed to represent Horace. He threatened to kill his girlfriend and her (probably imaginary) lover, who he thought had come through the bedroom wall and was hiding in the mattress. Horace has been pro per for months beating his weary head against the legal wall. The police, DA, judge, and his public defender had formed a cabal to help the lovers get rid of him.

Horace has made another fateful choice. In a moment of coherent thought, he’s conceded his ineptitude. In a moment of extreme mental fatigue, I accepted the case.

Like most pro pers, Horace has made a hash of all the documents in the file. They are soiled, dog-eared, a mess. I spend too much time putting it into a semblance of order.

Horace has serious problems. He’s charged with PC 422, which used to be called “terrorist threats.” That title was a bit hysterical, so the legislature changed it to “criminal threats.”

It is a crime to threaten harm, even if you don’t really intend to carry it out. If the target thinks you mean it, you’re a felon.

Horace has a bad record. In 1994, he tried a “till tap,” a grand theft of a mini-mart clerk. He got probation. Two years later, he tried it again, and this time there was a struggle. That was a robbery, and he got 2 years for it.

The prior “serious felony” carries a mandatory 5 years consec, and it is also a strike, which doubles any base term and requires doing 85% of the time before parole. His max is therefore 11 years.

At the prelim, his girlfriend Alma, the victim of the threat, testified that on Saturday, Horace had accused her of her tryst with the wall invading mattress hiding guy. Horace had been drinking, and she assured him that he was deluded. Horace then ordered her to leave, saying he would get a gun and shoot her.

Sensibly thinking to spend the night at her mother’s to let Horace sober up, Alma called her mom, who panicked and called the cops. When the cops arrived, Alma didn’t tell them about the threat, because, she testified, she didn’t want Horace arrested. But when she came back the next morning and noticed that Horace had slashed the mattress, she was angry and concerned. So she called the cops and told them about the threat from the day before. The cops came and arrested him.

Alma testified that Horace was not a bad person. He only got crazy when intoxicated, and that hadn’t happened until he lost his job and got depressed. They’d been together for 4 years and he hadn’t been abusive toward her.

I get along well with Horace. He’s been chasing his tail trying to prove tangents. I pursue his diversions, but keep my eye on the crux – the guy needs help, not prison. No history of domestic violence or abuse. He was depressed and went a little nuts. Who hasn't, in a fit of momentary anger, yelled "I could kill you" to a lover ... or a teenager ... or a client?

The calendar DA agrees. He’s been coping with Horace for months and knows he’s more cracked than bad. But his office wants the 5 year prior, so he offered low term (16 months) + 5 years. The law forbids judges from discretion. The DA has all the power and they won’t budge. The DA’s office is suffering from its own paranoia. If they are lenient with this crime and the defendant goes OJ, they might look bad.

I do some investigation, research, subpoena records from prison and his job, verify both his mental illness, drug & alcohol problem, and his work history. I get a shrink appointed. His report is no help. Horace hears voices, hallucinates when loaded, but he’s sane and if he did the act he must have had the intent to do it. Thanks.

So we go to trial. It is a short one. One day to pick a jury, one day for the DA’s case, a half day to argue. They go out at 11 and return at 12. NG.

The trial DA says, “See, I told you there was nothing to worry about. Justice prevailed.”

Sure. No problem. Just a few sleepless nights worrying about every decision. A sore neck from keeping Horace from screwing it up. Second guessing myself every inch of the way. Thinking something was going to go wrong. Hoping for the best and preparing for the worst takes it out of me. The NG is a relief, not a thrill.

Horace can get his own help. Maybe. I’m beyond help. So is The System.