By Bill Collins:
Not the Michael Jackson of Hollywood fame, rather the Michael Jackson of La Tuna
Canyon fame. The anti-government, anti-immigration, anti-authority, and anti-Semitic Michael Jackson.
The Public Defender's Office in Van Nuys had many Jewish attorneys when I practiced law there. That was the reason I received a phone call from Doris, the clerk in Division 10. She asked me if I would come over and meet with Judge Coleman—my favorite Judge and sort of a mentor. This man was studious. He even kept a small, gray metal box full of index cards on which he summarized the new cases he read in the “Advance Sheets.”
When I walked into chambers that day, we exchanged greetings, and Judge Coleman said, ”There is a defendant here today who has been represented by Art Rolston from your office. The defendant is anti-Semitic and doesn't want a Jewish attorney. I don't want to give him any excuses to challenge the verdict if he is convicted. So, I thought of you as the designated Gentile."
I suppressed a smile, because though my name is “Collins” (which is Irish, and I favor that side), by Judaic Law, since my mother was Jewish, I am as well. “Okay,” I said. "Where is he?"
Mr. Jackson was waiting for me by the elevators, and we walked across the street to my office. He sat across from me in my windowless office that I shared with another Deputy Public Defender. Mr. Jackson was in his late twenties, average height and slender. With his blonde hair and blue eyes, he made the perfect Aryan. When he began to talk, he spoke slowly and deliberately, with a dialectic I thought was Southern. He carried a folder with him crammed with papers. He said he was stopped by the police for excessive noise.
I asked, "You mean noise coming from your vehicle?"
"Yes, but I wasn't told that when I got stopped," he said.
"Alright, Michael, tell me what you were doing before you were stopped."
"I was driving westbound on Apperson. I was on my way to pick up my daughter from nursery school. My car wasn't making excessive noise. It had just been to the mechanic, and I was thinking of selling it."
"Did the officers know you? Had you ever had problems with them before?"
"No."
"I want you to tell me, as detailed as you can, what the officer said to you after you were stopped."
Mr. Jackson pulled out a yellow legal-size notepad filled with notes as well as several color photographs of his injuries sustained during his arrest. I noticed he still had bruising on his face, and this was two weeks after the incident. The injuries shown were severe bruises, deep purple and blackish marks 6–8 inches on his calves and the hamstrings of both legs. He also had similar bruising below the rib cage and on his back. This was not an indiscriminate beating. The officers were careful to strike soft tissue and avoid breaking any bones.
"Go back to when you were stopped," I said.
"I saw the red light, and I stopped. He asked for my license and registration, which I gave him. He didn't tell me at the time the reason for the stop. Later I learned he claimed my car was making excessive noise. That's not true. I argued with him. He asked me to step out of the car, and he immediately started to pat down my pockets. I pulled away and shouted, 'What are you doing?' He said it was a standard pat down search for officer safety."
Most people might have submitted to the police officer, but Michael wasn't most people. He had a deep distrust of the government and the police. I had to admit to a reluctant admiration for his determination. The moment that triggered Michael's reaction was the pat down. Was it legal? Based on the arrest report and Michael's statement, it didn't appear to be. The United States Supreme Court in Terry v. Ohio stated under what circumstances the police may initiate a pat down search. The searching officer must be able to articulate a rational belief as to why he thinks the suspect is armed. Mr. Jackson was stopped for “excessive noise”—nothing supported a belief he was armed.
The City Attorney's Office charged Mr. Jackson with violating Section 148 of the California
Penal Code: “resisting, delaying, interfering with a peace officer in the lawful performance of a duty of his office." The key word is “lawful.” If the pat down was illegal, then Michael could not, as a matter of law, be convicted of a 148. However, people have a duty to submit to even an unlawful arrest, 843(a) Penal Code, and could be convicted of a misdemeanor battery unless the officer used excessive force. Then the suspect may defend himself without committing a crime.
I ended the interview acknowledging he had a defense.
The case was sent to Division 103 for trial. The judge was Harold Sinclair. He was an African- American Southern gentlemen. Dapperly dressed, soft spoken, and the only defense-oriented judge in Van Nuys. He wore a broad-brimmed straw hat in the summer that earned him the nickname “Swanee.” The City Attorney was Christopher Westhoff. Chris was young, charming, and a good lawyer, and like most prosecutors he was used to winning. On the first day of trial there were some pretrial issues to resolve. Chris and I went into chambers several times. Each time the judge agreed with me and limited what the prosecution could present in evidence, such as my client's prior arrest record. On my next request:
"Hey, Chris, let's go into chambers," I said.
"I'm not going in there anymore with you. Every time I do, I come out with less of a case," he replied.
I had to agree he was right. The Judge agreed with me that the pat down was illegal. But he refused to instruct the jury to that affect. He said the issue was for the jury.
"But this is a legal question for the Court. The facts aren't in issue as to the pat down," I stated.
"Normally, you're right. But this search didn't produce any contraband. If it had I would suppress it. But since it didn't, what do you want me to do, suppress the defendant? 'Lawful' is an element the prosecution must prove, and you may challenge it. What you are asking me to do is give a 'directed verdict,'” said the Judge.
"No, your Honor, but making a legal conclusion seems out of their area of expertise."
"Not in this case," he replied. "Let's proceed, gentlemen."
Officer Osuna was the first witness for the prosecution. He was the one who attempted the pat down. Both he and his partner were from the Foothill Division of the Los Angles Police Department and had a reputation of being a bunch of “cowboys"—officers who bent and sometimes broke the rules. This was the division involved in the Rodney King beating.
In any trial, the credibility of a witness is critical. If they demonstrate a poor memory or if there are inconsistencies in their testimony with prior statements, the effectiveness of their testimony is diminished and may be disregarded. I was looking for such evidence, and Officer Osuna didn't disappoint.
"Where were you when you first observed Mr. Jackson's vehicle?"
"We were stopped at a stop sign westbound on Apperson," said Officer Osuna.
His partner, Officer Small, testified on direct that they were they were soutbound on Commerce and not stopped at a stop sign.
"Officer Osuna, where was the defendant's vehicle stopped?" I asked.
"It was stopped 300 feet west of Mountair."
"Did you write a report regarding this incident?"
"Yes, right after the incident."
"How long after the incident?"
"Within one hour."
"Were the events fresh in your mind at the time?"
"Yes."
"Do you have a copy of your report?"
"Yes."
"Please look at the box marked 'location of arrest.' Did you find it?"
"Yes."
"Please read it out loud."
"One hundred feet east of Mountair," read the officer.
"Which is accurate?" I asked.
"My report," said Officer Osuna.
"On direct, you testified you couldn't complete the pat down because the defendant ran away, correct?"
"Yes."
"What does it say in your report about the pat down?"
"It states the pat down was completed."
There were more contradictions. Officer Osuna testified that the reason for the stop was for excessive noise, while Officer Small testified the reason for the stop was failure to signal for a turn. Osuna testified Michael ran for 225 feet, while Small testified he ran for 75 feet.
"Officer Osuna, how long did you talk to Mr. Jackson before you attempted to pat him down?"
"Two minutes," he said.
"During that two minutes, did you discuss why you stopped him?"
"No."
On redirect, he explained he was trying to put Mr. Jackson at ease.
"Did you strike Mr. Jackson on the back with your baton?" I asked.
"I don't recall hitting him on the back. I hit him 5 times on the back of his legs, and Officer Small hit him 2 times on the side of his torso."
I thought it was odd the Officer remembered the number of times Mr. Jackson was struck.
"Why did you want to pat down Mr. Jackson?"
"For officer safety," he stated.
"What made you think your safety was in danger? Had you received any information that Mr. Jackson's vehicle had been used in a crime?"
"No."
"Had you received any information that Mr. Jackson had been involved in a crime?"
"No."
"Did you have an arrest warrant for Mr. Jackson? Or a search warrant for his car?
"No."
"The only reason you stopped the vehicle was for excessive noise, correct?"
"Yes."
"Did you cite him for an equipment violation?"
"No."
"Do you know why your partner officer testified that the stop was for failure to signal for a turn?"
"No."
"What made you think you needed to pat down Mr. Jackson? Do you make every motorist you stop for a traffic violation submit to a pat down?"
"No."
"But in Mr. Jackson's case you did, correct?"
"Before the stop I saw Mr. Jackson lean to his right."
"Was this after you activated your red light?"
"Yes."
"What significance did you place on Mr. Jackson leaning to his right?"
"I thought it was a furtive gesture, possibly getting a weapon from the glove box."
"Or getting his registration from the glove box, right?"
"Possibly."
A recent California Supreme Court case, Kiefer v. Superior Court, held the term “furtive gesture” is insufficient standing alone to justify a detention or search. I later asked for a jury instruction to that affect, and I got it.
"Officer Osuna, did you find any controlled substances on Mr. Jackson or in his vehicle?"
"No."
After the prosecution finished with their witnesses, the court recessed for the day. I met with my investigator, whom I had sent to the location of the arrest to look for witnesses. Two boys playing in the neighborhood saw the entire incident. Jose Garcia and his brother Corky, 13 and 11, respectively, testified that Officer Osuna threw the defendant to the ground when he pulled away from the Officer. They did not see Mr. Jackson run, but they did see both officers "... hit the man many times. He was screaming 'stop, stop.'” I asked Jose if he was hit more than 7 times? He said he wasn't counting, but it went on for a long time, so yes he believed it was a lot more than seven. Children can be very powerful witnesses, and these two were. They had no connection to Mr. Jackson, and they had no reason to falsify their testimony.
During the closing argument, the prosecutor brought a police baton into court. He hit the counsel table so hard it startled me and knocked books and papers off the table. His point was that if Mr. Jackson had been beaten as badly as he claimed, he would have had broken bones. Very creative, I thought.
It didn't help, the jury found him Not Guilty. At least one juror let it be known he was not happy with the verdict but felt he had no choice, the law required it. That was good enough for me.
As Mr. Jackson and I were walking out of the courtroom, I said, "Hey, Mike, I'm Jewish!"
Stunned silence.
Years later he called me when I was in private practice.
“You made me think about my attitude, and you fought hard for me. You were the best lawyer I ever had, thank you," he said.
That also was good enough for me.
Bill Collins has practiced law in the Southern California area for over forty years and has a lot of stories to tell. We are proud to welcome his unique perspective and original stories to Flapper Press.