Month: May 2012

A primer in Criminal Procedure

I thought it might be helpful to explain the process for this next week.

There are two dates set for the accused. The first, on May 16th at 10 am, is called the preliminary hearing calendar call. This is the opportunity for all the parties to meet and make sure they are ready to proceed to preliminary hearing. The defense attorneys will be making sure that they have all the discovery – police reports, etc. to which they are entitled. They will either be telling the court whether they will be ready to proceed on Friday, or be asking for additional time to prepare. The Deputy District Attorney will be sharing any supplemental reports they have received from the various agencies and letting the court know if their witnesses will be available, and whether they will be ready to proceed. This is typically also the time when initial plea bargaining discussion occur.

A Preliminary Hearing has become rather pro forma. Because these are felony charges, the DA must simply establish whether there is probable cause to believe a crime or crimes have been committed and that these defendants probably committed them. It is a very low standard that has little to do with guilt or innocence. Since the passage of Prop 115 (I think is the number), the state no longer has to put on many of the actual witnesses. The investigating officer is allowed to relate to the court what these witnesses told him, and presumably what they will testify to. It will be the first opportunity the public has to hear what facts the state has. Generally, the defense puts on little testimony, and certainly, none of the defendants will be put on the stand at this point. They can, but most attorneys will not let that happen. There is no advantage to it. There may be one defense witness, we will see, and I will be there to report. It is possible, but unlikely, that if the evidence presented is considerably less than what is charged, then bail might be reduced. I think it is unlikely that there will be a reduction, considering what the DA said about the witness.

I hope this short primer is helpful to understand what may happen next week.

Friday hearing for Cal Trans crew

I was in court yesterday for part of the hearing. Bail remains set at $1,000,000 each. Preliminary hearing remains set for Friday, May 18th at 10:00 in Judge Pamela Butler’s court room, although a challenge under Penal Code 170.6 seems likely to be filed by one of the five attorneys in the matter.

One evening anchor man from a local Monterey station was present, and asked to speak to Tom Worthington, Juliet Peck, or myself, but we were all too upset with the court’s refusal to consider anything the defense had to say about a bail reduction, to respond to the press.

Given the nature of these judicial proceedings, from the overbearing nature of the initial assault on the south coast, to allegations made by the DA in open court, to the court’s refusal to consider anything on behalf of the defendants, as a member of this community I feel stifled in what I can and cannot share on this or any other public forum. I just urge every one to keep an open mind until this case is concluded.

No Willow Springs Maintenance Crew means this section of the highway is no longer safe. Driving home from the North Coast today, Saturday, there was a minor slide south of Limekiln. There were quite a few rocks in the north bound lane, and a few in the south bound lane. There is no one for me to call or stop and see to let them know. This could a harbinger of things to come, not necessarily, but it could be a warning from Mother Nature.

Remember, there are many layers to most cases, this one in particular. Also, as an aside, Cal Trans is suing the estate of the dead bus driver and the tour company who employed him, for damage to a bridge out near Soledad, when the driver crashed into it, killing four French tourists, per a report in yesterday’s Pine Cone. Cal-Trans is suing for one million dollars. I have never heard of such a thing. Nice, huh?

The Cal Trans 5 in court

The Cal Trans 5 were in court in Salinas this afternoon, but the arraignments were continued until tomorrow at 8:30 am. An attorney for one of the defendants said it was likely not to be heard until 1:30 in the afternoon. A significant outpouring of support showed up in solidarity for the Five from the South Coast of Big Sur, including family and friends, local school officials, and other community members. All told, there were probably at least a dozen people who made the 2 and 1/2 drive to show their support. Two camera crews from local news stations also showed up to cover the proceedings.

Attorney Tom Worthington appeared on behalf of Phil Taylor, the retired Cal Trans employee. Attorney Juliet Peck made a special appearance for Cal Trans Supervisor Danny Milsap. She will also make a special appearance tomorrow. A special appearance simply means that financial arrangements have not yet been finalized between the client and the attorney. The public defender was appointed for the remaining three, but the Public Defender will only represent one of the three, and alternative defenders will be appointed to represent the other two. Those attorneys are likely to be present tomorrow.

The only surprise presented in court addressed why the bail had been set so unusually high.Tom Wothington pointed out that the standard bail schedule for these non-violent, non-serious felonies is usually $10,000 per offense charged. However in this case, a declaration was filed under seal under Penal Code section 1275.1 to allow for the extremely high bail of $1,000,000 each. None of the parties – the DA, the attorney, or the court had seen this sealed declaration.

Either a police officer or a prosecuting attorney must file a declaration under penalty of perjury that he or she had probable cause to believe that the money that may be used to post bail was obtained by fraudulent or felonious means, and therefore, it may be set much higher than the bail schedule allows.

This is just another piece of the puzzle. A million dollar bail requires $100,000 cash. That is the sum alleged to have been involved in the overtime fraud charges by ALL 5 people. So the question in my mind is how a cop or a prosecutor can claim that all four are going to use feloniously obtained funds to post bail when they collectively are only charged with “stealing” enough money to post bail for one? Since no one is yet allowed to see the declaration (although defense attorneys will get a copy) we cannot know the reasoning behind this move by the prosecution. The defendants are entitled to a probable cause hearing on the Penal Code 1275.1 declaration, as soon as their attorneys can be ready for it. In the meantime, a preliminary hearing has been set for May 18th.

This story has lots of layers, which will only be revealed over time. My fear is that the real story will never find its way into the public information system.

UPDATE: 11pm, Tom Worthington was interviewed after the bail hearing and told the reporter that in his opinion this matter was WAY over charged and that he expected these men (and one woman) to be released tomorrow. Interesting. Let’s hope he is right.

I cannot make the 8:30 time frame, but if it is held over until 1:30, I will be there and report back.

Big Sur’s compassionate citizens

I am glad so many people here are supporting our South Coast crew, willing to recognize that there is more to this story than we have heard. So many of you are keeping an open mind, willing to prevent the presumption of innocence (yes, I know how to spell it) from being a meaningless series of words just strung together. We are doing what we are so known for, supporting each other in difficult times.

Truth has many sides, not just one or two. I often used to tell juries, as does a jury instruction, that two people witnessing the same event, will have two different versions. They may be similar, and they may differ little or a lot, but if they are the same, it is because the two parties got together and decided jointly which version they would present. Ask any cop, or defense attorney. We know this is the way of perception.

This Cal Trans story likely will have many layers, and many parts. We may never know what is true, particularly if we cannot depend on the local media. It will come to light in bits and pieces over the next few days, weeks, and perhaps months.

On a related note, i am concerned that I have yet again been removed from Jack’s WildBigSur email list, after posting a version of my Innocence post there. I never saw it, and I wouldn’t have seen the 5-6 responses I received, if it hadn’t been forwarded to me by a friend. Why does he do this? I know of at least one other very knowledgable, very responsible blogger about things Big Sur, who has also been banned. Given my experience, and this other person’s, I do not believe it is an accident. I would love to be wrong. I haven’t gotten ANY Pelican Network emails for a couple years now, unless they are forwarded, and I just was re-added to WildBigSur a couple months ago, and once again, I have been removed – because I spoke out about an injustice? Why is that? Inquiring minds want to know.

A primer in Innocence

I sent a version of this to WildBigSur in response to Bill Monning’s comment, but Jack has a way of censoring me, and not posting my comments, so I wanted to share this here.

Please remember, we only have allegations at this point, and we only have a very narrow, and incomplete story. All these individuals are INNOCENT until they are either found guilty beyond a reasonable doubt by a jury of their peers, or they plead guilty to any possible charges, which may be much less than what they were arrested for. Family members and loved ones of those accused are reading the comments posted online at news sites, and it is adding to the pain they are already feeling. I have talked to several of them throughout the day and night, and they are in shock, pain, and reaching out to make sense of what is happening. Public comments make that harder.

My 31 years of experience as a criminal defense attorney for indigent clients has taught me that the initial charges are often times very exaggerated, and the charges actually filed by an attorney for the District Attorney’s Office may be less than what the police are asking for, and what is found true or admitted may be even less still. “Overcharging” is a common way to “force” a plea’bargain, which might not otherwise happen, and a way to keep defendants locked up in jail on outrageous bail amounts.

Be considerate and kind in your thoughts and comments. Unless you are on the jury with evidence from both sides presented to you, it is not up to us to judge.
Bigsurkate

A failure of the Press

My information is that one of the current employees was arrested, but later released, with no charges pending. I was told of his arrest by CHP last night at 6:30 pm, confirmed by the jail as arrested at 7:00 pm, and yet the press release issued jointly by CHP and Cal Trans just after 3:00 pm, doesn’t list him as being arrested or as a suspect. I also find it interesting that the only media to carry this information is bigsurkate and the Cambrian, who called me. All the major news networks are reporting, almost word for word, the statements issued in the joint press release. NONE, of our local media seem to be doing any independent investigation at all! I am extremely dismayed to discover that the Herald and KSBW, at least, are just reporting what they are told to report. So much for independent, investigative journalism. PLUS, in my humble opinion, it is biased. Where do we go for honest, and in depth reporting, if we can’t count on our biggest newspaper and local television station? Please don’t say bigsurkate. I can only cover the South Coast, sometimes the North Coast, and I haven’t had time to train my volunteer.

This has been a day of lessons for me. Many people prefer to condemn without knowing the facts. Local media prefer to just publish press releases, rather than do their homework, no one notices except those who have access to the inside story. We wonder why our economy and democracy are in jeopardy? A true democracy does not work without an informed constituency, and it hard for the public to stay informed if the media just publish what they are told to publish. Shame, is all I can say.

Current and former Cal-Trans workers arrested

At 5 am this morning, per a non-employee woman who was staying at the Cal-Trans yard at Willow Springs maintenance Yard, she woke to find 5 police officers in her room. She was not arrested.

At about 9 am this morning, I got a call from Rock Knocker informing me that there were a huge number of MCSO and CHP officers at “the yard” and Gorda, and four additional officers parked at Radio Point. I left about an hour and a half later, and noted a lot of officers at the yard, but none at Gorda, and saw at least one at Radio Point. (I did not pull in and look behind the rock, like RK did.)I couldn’t stop and investigate, as I had a brief due today, which meant it had to posted by priority mail today from Cambria.

After lunch with RK, sharing information, making and receiving several phone calls, including one from RK (who left early to find out what was going on) I had enough information to know that something very unusual was going down, but I was still trying to piece it together.

RK told me that his landlord, a former Cal Trans employee had been arrested, and that all his tenants had been given 30 days to move, due to code violations. I made more phone calls. I had more information.

On the way home, I noted 3 CHP cars and their drivers in the Cal Trans yard and the gate open. This was 6:30 pm. I turned around, and when I got back, the gate was closed. My mail box is there, so I stopped anyway. The gate was not locked, and was swinging open, so I walked in. CHP Officer N. Ashby immediately approached me, so I introduced myself, and showed him my press credentials and started asking him questions. He confirmed that arrests were made. I asked for the names, and he went back to the other officers, and as I started to approach, he motioned for me to stay where I was. I did. After a few minutes, he came back with 6 8×10 computer print out of photos of 6 people – 5 current Cal Trans employees, and one former employee. Each had a name at the top of the photo, which he read to me as I read over his shoulder. He gave me the name and number of the PIO for the CHP to call, with the caveat that the PIO might have already left.

I rushed to a local land line, and he had gone home, but the woman who answered the phone suggested I call the MCSO, which I did. I finally tracked down someone who confirmed the 6 arrests, but could not confirm the charges, as at 7 pm, they were “being interrogated.” I made numerous other calls, spoke to a number of locals, and eventually got home around 8:30 pm. I had groceries to carry in, dogs to take care of, more phone calls to make, and eventually got a copy of the joint press release from Cal Trans and the CHP. (Thanks to Bert.) The press release indicates 4 current and 1 former employee were arrested, but the information both the CHP and the jail provided, listed six total names. There are only 6 current employees at the yard, so only the very newest hire was not arrested.

The charges listed on the press release, as to all individuals, are grand theft, conspiracy, and theft of public monies. It further indicates that the workers were falsifying documents to increase their over-time salaries, as well as stealing Cal Trans property.

If you get KSBY or KION, there will be much more later tonight, and given the potential for notoriety, I suspect there will be more coverage in the days to come.

ED COMMENT: For us down on the South Coast who know all these people, who have helped and been helped by these workers, it is a very sad day. It will affect our entire community for months to come, not to mention the eviction of a number of residents from their homes. As a criminal defense attorney for too many years, I would just ask everyone to remember that these individuals are innocent, until the state proves beyond a reasonable doubt otherwise. So, please, do not judge until you have heard the whole story.

Big Fat Moon, Cinco de Mayo, and Sam Farr…not necessarily in that order

What a glorious afternoon and evening!

Rock Knocker and I spent a few hours this afternoon at the wonderful home of Kenny and Mary Wright for Cinco de Mayo and a fund raiser for Sam Farr. Sam has a heartfelt connection to this coast, having been raised here, and it is evident whenever I see him here. His face lights up and he is clearly at peace.

He showed up in his truck with some small white PVC pipe. “Going to Point 16 from here?” I asked. “Yes,” he said. “I need to work in my garden to stay sane,” he answered. When I left, I congratulated him for keeping his balance with Mother Nature, considering the Washington politics he has to deal with.

Besides seeing Sam, and other wonderful people, like Helen Morganwrath, who came to Big Sur when I was 2 days old – which was a l-o-n-g time ago, and the Wright house, the other highlight of the afternoon was seeing Michael Jones, of Cachauga Store (i tried to inset a link, but was not successful, so see the links to the right, under odds ‘n ends) whom I consider a friend, even though we had never met before. We met on line during the Basin Fire, and I have followed his adventures (and misadventures) ever since. He and his crew catered the event, and oh, my what a treat THAT was! He is a gastronomical artiste. There is just no other way to describe him, unless one is describing his intellect or wit … Then lots of other adjectives come to mind. I love you, Michael, more than my solar panels, or almost, at least.

HipNic was also going on, and considering the HUGE numbers of cars parked at Fernwood and on the highway, this Fourth version seemed to be an amazing event. Maybe next year I will be so retired that I can attend some of those magical 3 days. I’d like that. Anneleise Agren of Coast Road ( also listed in my links under Odds ‘n Ends) offered me her second ticket, but with the solar system yesterday, the gathering at the Wright’s today, and a brief due Monday that I have to write tomorrow, there just wasn’t enough of me to go around! That’s why next year I will try to make it a priority.

Then, to top off the day, I climbed my mountain under the fatest moon of the year! Now, you tell me. Does it get any better than this?

The Sun and it’s power

The power of the sun, we all know, can be harnessed and used for household power. It provides the source of life for growing gardens, it can majorly affect moods, mine in particular.

The more I get in touch with Mother Nature, the more I get in touch with myself. I have learned I am severely affected by the weather. Gray gloomy days make me gray and gloomy. Bright sunny days make me bright and sunny. Stormy days are dramatic, and so am I.

And sunsets take my breathe away. Like this one from the other night.

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Finally got my solar system up and running. Thus, the free flowing, stream-of-conscience post. I’ll write more about it later, but must say, clean, quiet, 24 hour power is a thing of beauty!

Distressed Gray Whale

That gray whale I wrote about a few days or a week ago has been found and rescued in San Francisco today!!

Thank you to the crabbers who found him!! And all the people up and down the coast who were on the look out for this guy!