My first week as a newly minted Deputy Public Defender Steve Davidson one of the grisly old defenders who had a striking resemblance to Jack Nicholson in style and demeanor called me into his office and told me to, “sit down.” Then, he leaned forward across his desk and looking me straight in the eye he said, “Phil, there is just one thing you have to know about this business, do you know what it is?”
Not easily intimidated even then, I thought for a moment and then recalled the standard responses I had been taught like “our job is to insure all of our clients Constitutional Rights are protected” and “whatever you do don’t socialize with the clients.”
“No, no, no, Phil you don’t know what you’re talking about. The one thing to never forget is there are a lot of bodies on the battlefield out there, don’t be one of them!”
I feigned appreciation to Steve for his concern and quickly got out of his office, and didn’t go back in for a long time.
It would be many years before I understood what Steve was trying to tell me.
- - -
Len and I had been on a roll. It had been a very long time since we heard the clerk read the dreaded “guilty verdict handed down by one of our juries. “Not guilty” is what we were used to hearing.
This one, People v. Ricardo “Ricky” Gonzalez, should be no different. Ricky was looking at sixteen years for a double shotgun robbery in downtown Ventura, of a couple sitting in their car after dinner at a local restaurant. The suspects had worn hooded sweatshirts pulled up over their heads with bandanas over every portion of their face except the eyes. Running up to the car they immediately leveled shotguns at their victims through the open driver’s side window, demanding all of their money, phones, and credit cards.
The whole incident probably lasted less than a minute, but the trauma of having a shotgun stuck in your face was still apparent when they testified almost a year later. The woman in the passenger seat readily admitted she could not identify anyone, all her attention was focused on the shotgun barrel. The man, however, was a different story. When asked to identify his assailants, immediately he pointed to Ricky and his co-defendant and said, “Yes, there’s the one who did it.” This came as no surprise as he had identified them both in a drive by lineup the night of their arrest.
Ricky and three of his friends had pulled into the parking lot while the crime was still being investigated, and all of them fit the general description of the suspects. Immediately detained, a quick search of their van produced just one piece of evidence, an unfired shotgun shell. Ricky and his co-defendant were both wearing hooded sweat shirts, the other two were not.
All four were lined up on the sidewalk as a patrol car with the victims inside slowly drove by using its spotlight to illuminate the suspects. Two officers stood behind the four men and right before the patrol car arrived they lifted the hoods of the sweatshirts on Ricky and his co-defendant. The female victim made no comment but the man immediately picked out the two hooded suspects as his assailants.
Len was outraged by Ventura P.D.’s tactics, an obvious suggestive lineup that violated every protocol he had always followed as a robbery detective with Oxnard P.D. Len had had enough of bad and sometimes dishonest police work and taken an early retirement. Now he was a defense investigator relishing every opportunity that came our way to point out the error of his former colleagues’ ways. This case was particularly exasperating for Len. From the beginning he said, “There is no way someone can ID a suspect with a hood and a bandana on, while looking down the barrel of a shotgun.” I wasn’t quite convinced until Len ran a little experiment past me.
He came to court with a life-size poster board picture of a man with a hood and bandana on and stuck it in front of me saying, “Do you get it now?”
“Get what, Len, it’s a picture.”
“Okay, alright, I guess I’m missing something, what’s your point?”
“I knew you couldn’t tell, you don’t get it Phil, the picture is of me.”
“Wow.” I thought, I didn’t get it, but now I did. I couldn’t tell even with him sitting right next to me, this was one powerful piece of evidence. The strategy wheels of my mind churned powerfully as I contemplated how we might get this little demonstration in front of our jury.
The case had been assigned to the The Honorable Herbert Curtis III. Herb Curtis was unique as a judge in Ventura County in that he was the only African American ever appointed to the bench. He was a former prosecutor of course, as at the time just about three-quarters of the local judges had come out of the DA’s Office. Herb Curtis had grown up in the inner city of Cleveland, Ohio. A track star in High School he won a scholarship to Cleveland State University. Upon graduating he became a teacher by day and a law student at night, having earned his law degree and passing the California Bar he took a chance on an interview for a position in Ventura County DA’s office. Personable, athletic in build, and quick with a smile he had all the ingredients for a successful trial attorney. Hired off of his first interview Herb Curtis quickly earned a reputation as a formidable trial attorney and a capable manager within the office. Not long after a short stint in administration he got appointed to the bench by Governor George Deukmejian in 1984.
I liked Herb Curtis personally, he was much more down to earth than most of the judges. He enjoyed talking in chambers and occasionally regaling us with a story about life on the streets on the east side of Cleveland, or what fight his uncle Don King was about to promote. Don King remains a legend in the boxing world to this day, and much of it was not pretty. Having been convicted of manslaughter as a young man, doing time in prison for it, and then scaling every hurdle in boxing to become almost as famous as Muhammad Ali, whose fights he promoted, Don King was no choirboy. Herb Curtis’ relationship to the man gave me hope for my judge. Alas, it was not to be, though Herb Curtis was not a mean spirited judge, he certainly was no friend of the defense. In my experience he virtually never ruled for the defense on a point of consequence, and on one occasion I had him reversed on appeal on an issue the DA’s office refused to contest. The other thing that disturbed me about Herb Curtis was he was the only judge I knew who openly carried a gun. Strapped in a holster around his ankle was a .38 caliber revolver. When I once asked him about it he told me “I’m my own back up, if something goes down in the courtroom the first guy hit is my bailiff, I’m not going to be second.”
So Herb Curtis wasn’t exactly the best judge to try a serious case in front of, but in those days the pickings for the defense were slim. He might never give you a ruling, but at least he wouldn’t ride you the whole way.
David Lehr was our prosecutor. Well respected, easy to work with and certainly not afraid to try a case, David didn’t look for a way to make a deal in a tough case. I found David a particularly difficult opponent as he suffered noticeably from muscular dystrophy and he quite effectively took advantage of his disability. Unable to move about the courtroom without the use of a cane, David had developed a sympathetic charisma that was hard to combat straight on. His courage was evident, though his continued success as a prosecutor had caused him to go over the top on this one, in my opinion. I hoped that David had let a little complacency slip into his game.
Len knew David, of course, and since he was going to testify about other evidence he had produced, pictures of the scene that night and so forth, maybe he could also mark the hooded bandana man picture like all the other photos. I cautioned him to make sure he showed it to David first, which he did.
I started Len’s testimony with the routine stuff, laying a foundation for all of our pictures, and then, “Mr. Newcomb, let me draw your attention to defense Exhibit “K”. Are you familiar with this photograph?”
“Yes, I am.”
Trying to keep my tone and volume the same as before, I thought ‘only two questions to go.’
“Mr. Newcomb, what does this photograph depict?”
“Well, it’s a life-size picture of a man wearing a hooded sweatshirt, hood up, and a bandana over the lower half of his face.” Len answered matter of factly. Now, the coup de grace was as simple and controlled as possible.
“And, how did you take this photograph?”
“Well, I set up a stationary camera, on a timer, put on a hooded sweatshirt with a bandana over my face, and took a photograph of myself.” I heard a slight gasp from the jury box, and noticeable shifting within their seats, but I couldn’t resist one more question, having heard no objection. “So, this is a picture of you, Mr. Newcomb?”
“OBJECTION! Your Honor, I know nothing about this, counsel never told me this was a picture of Mr. Newcomb!” David at first looked embarrassed, but now he was angry, very angry.
Having prepared for this moment, I shot back, “We gave the exhibit to Mr. Lehr before marking it, is he admitting he couldn’t tell it was Mr. Newcomb?”
Herb Curtis was not amused by our little demonstration. “Mr. Dunn, I will see you and Mr. Lehr in my chambers, right now!”
The back door heading to the Judge’s chambers was a few feet behind the jury box and right next to the witness stand where a large white board with magnets held up Exhibit “K” facing the jurors. On either side of the white board were large wooden doors that when closed covered the board. David, seated closest to the jury, lead the way across the well of the courtroom as we headed towards the door. When we got to the white board, he stopped, leaned on his cane, and reached over to close the doors on Exhibit “K”. Seeing this, I hesitated but a moment, and in perhaps my best moment of courtroom theatrics, shrugged my shoulders and shook my head slightly, before going through the door.
In chambers Judge Curtis wasn’t buying my argument. “This is not admissible evidence, little more than a cheap trick, certainly not an admissible demonstration, even if Mr. Lehr knew about it.”
“Cheap trick.” Now it was my turn to be offended. “Len gave it to him, we had it marked, it’s not my fault he couldn’t tell who it was.” Things were getting ugly now, and I could feel the pressure growing as the Judge was now considering greater sanctions than simply ruling Exhibit “K” inadmissible.
“You might want to consider a mistrial Mr. Lehr, because we all know that once the bell has been rung, no admonition from me is going to unring it.” Horror gripped me. I had a winner going here and now they were plotting to steal it from me.
I changed my tone, pleading, “Come on, David you can’t want to do this one again.”
David hesitated, thought for a moment, then said, “No, let’s finish it, I’ll just use it against you in argument.”
Back in front of the jury, Judge Curtis in his sternest voice announced, “Exhibit “K” is ruled inadmissible; all of Mr. Newcomb’s testimony on Exhibit “K” is stricken from the record. Ladies and gentlemen of the jury, what that means is that none of what I have ruled inadmissible is evidence in this case, and therefore, it is not to be considered by you in any way in your deliberations.”
As the Judge spoke I watched my jurors intently. Predisposed to like, or at least respect his authority, confusion now reigned over their faces. They had always heard it was the defense that got away with suppressing evidence, but here the prosecutor’s objection was sustained and the Judge was telling them that a truth they had witnessed, in dramatic fashion, should be ignored for some unspoken reason. For a few of the more independent jurors a certain discontent came across their faces as they chafed under the oppressive nature of the Judge’s order.
My closing argument was based upon a false identification of two young men who happened to be in the wrong place at the wrong time. As I delivered my summation, I could tell most of the jurors were with me. Asking them to consider the gravity of their decision on a young man’s life, I saw my likely foreman, a Hispanic man in his mid-sixties, nod in agreement as I told him “this decision, your verdict, may be the most consequential decision you will ever make affecting another person’s life.” The facts, as they played out in court, made it possible to argue with righteous indignation building to a final call to do justice on behalf of Ricky Gonzalez because “if you do not, none of us are safe from this kind of prosecution, do what is right, muster up within yourselves the moral courage to find Ricky Gonzalez not guilty of all of these charges.”
It didn’t take them long, perhaps three hours. The reading of the verdict was as always extremely intense. With the first “not guilty” I knew we would get to hear those beautiful words spoken into the record three more times as both defendants were acquitted of all the charges. Each time the precious words were spoken a cheer came from the gallery as the friends and family of the accused could no longer contain their joy.
The moment was as good as it gets.
- - -
I didn’t hear a word from Ricky until almost three months later. I ran into him in the courthouse one morning. Seeing me he walked over to shake my hand and apologize “for not getting a hold of you, to thank you earlier.” Ricky didn’t look good, since he had been in custody prior to, and throughout the trial, he had the pale but clean look of someone who wasn’t getting any sun, but had no access to drugs or alcohol. That look was gone as he clearly had lost weight, and his demeanor was consistent with so many of the drug addicts I had represented over the years. “Methamphetamine most likely,” I thought.
Three months later Ricky walked into a liquor store in Ventura, held up the clerk, and before leaving he shot him dead on the spot. The local paper reported that the clerk left behind a wife and three children.
After the shooting, Ricky grabbed a rifle, put on body armor and barricaded himself in a house. The Ventura SWAT team surrounded the house, and when given a clean shot, they shot Ricky dead.
- - -
Herb Curtis retired as a judge in 2007. His retirement was premature as it was well known to have been related to a drinking incident in which he allegedly told law enforcement that they better leave him alone since he was hearing one of their murder cases at the time. His personal life also appeared to be suffering as he went through at least two divorces. He did practice law to some extent as he joined a local criminal defense firm, but he chose not to ever appear in front of his former colleagues so we never saw him around the Ventura Courthouse.
On February 6, 2017 police were called to Herb Curtis’ home, neighbors reported shots fired. When they arrived Herb Curtis barricaded himself inside his residence while his girl friend lay bleeding out from the bullet wounds he had inflicted upon her. Hostage negotiations ensued for the next couple hours as Ventura Police sought to confirm that the shooting victim was still alive. Additional shots were then heard, so the SWAT team broke into the residence just as Herb Curtis shot himself to death.
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In war they call it collateral damage. The unintended consequences of battles fought in an endless struggle known as the criminal justice system. Those of us charged with doing justice within this adversarial system are not immune to its consequences. No, far from it, the horror of it all is not experienced in a catastrophic moment as in war, but rather it is a slower form of psychological torture administered in small doses over decades of exposure. It is its own form of Post Traumatic Stress, the result of witnessing so much suffering with little ability to alleviate it. A temporary salve is administered in the punishment of those offenders that are convicted, but such satisfaction is short lived as the consequences of mass incarceration become the cause of more crime and punishment. It is a never ending cycle of pain and retribution.
As for me, I always feared the day I learned I had successfully defended someone who went out and did it again, or as in this case, worse. When it happened the war still raged on for me so I had little time to absorb the impact. When I do consider it, I must say if presented the same facts and circumstances again, I would change nothing. But still, it is always there, lingering somewhere in my conscience.
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Written by: Philip Remington Dunn is a practicing criminal defense attorney, social justice advocate, and author of the critically acclaimed book: When Darkness Reigns.