“Well, What Are You Going to Do About It?”

By Bill Collins:


Patricia B. was the type of client that I called "normal"—no criminal record, in her forties, and the manager and owner of a family run plumbing supply company. She was raised in the Bay Area and was an original "Flower Child," a hippie in the 1960s (Haight-Ashbury, love, and peace, the whole nine yards). She left that culture to move to Echo Park in 1972 in order to help the family business, as her father was experiencing health problems. She lived in a modest but well-kept house with her friend, Carol M., who she had met in her Bay Area days. Pat had been living with her for two years at the time of her arrest.


A neighbor saw what she thought was evidence of drug sales from Patricia's residence. The neighbor said she saw frequent “trafficking”—people arriving by car who would stay a short time and leave, sometimes carrying a bag on the way out. She also said that when walking by the house, she could smell the odor of burning marijuana. The neighbor called the Rampart Division of the Los Angeles Police Department. This Division would later be rocked by the scandal of Raphael Perez, who worked in the CRASH Unit: Community Resources Against Street Hoodlums. Perez implicated seventy police officers in beatings, torture, planting evidence, and falsifying police reports involving drug arrests. Their bad reputation preceded the big scandal of the 1990s.


The officer listening to the disgruntled neighbor was Alan K. He worked undercover and decided he would check out Patricia's residence. He observed the same behavior—absent the smell of marijuana—and felt he had enough evidence to investigate further. At this time, possession of marijuana could be charged as a felony. Officer K. knocked on Pat's door in plain clothes, identified himself, explained why he was there, and asked permission to search.


This is where the stories diverge. Patricia stated that she had refused his entrance and told the officer to go get a warrant. The officer said that she consented.


In any event, Officer K. entered and conducted a search. He was looking for a large amount of cash, packaging material associated with sales, records of sales, any controlled substances—but he found nothing. However, as he was about to leave, he noticed a black bag, a satchel, by the front door, partially obscured by a standing coat rack. When he opened the bag, he found a cornucopia of drugs—what appeared to be cocaine, crack, Quaaludes, and marijuana. All were in separate containers; one contained pills in a prescription-like vial, but there was no label or identifying name, no doctor's name or pharmacy, just a vial and unidentified pills. There were no initials on the bag, no papers in the bag, no clothing—in short, there was nothing to indicate who possessed the bag. Patricia was arrested, booked, and later released on $50,000 bail.


My initial meeting with Pat was after she had her preliminary hearing. These hearings are conducted to determine if there is a strong suspicion of guilt for the case to proceed to trial. (The vast majority of preliminary hearings do result in the case proceeding to the trial stage.) Pat's trial date was set.


Pat's explanation was that an old friend from her hippie days had come to visit. He knew both Pat and Carol M. The friend, Carl A., had brought the black satchel. Pat didn't deny that she was aware of the bag, but she stated that she had never looked inside, considering it was his private property. Carol M. would corroborate this statement. So, where was Carl A., I asked. She said she didn't know. He had left suddenly complaining of not feeling well. Carl A. was in his mid-sixties. Everything about her statement rang true with me, but that is a double-edged sword. On the one hand, I felt I had truth on my side—something that I didn't always have—but the pressure of believing my client to be innocent is vastly different than believing the prosecution cannot prove their case beyond a reasonable doubt. If I couldn't find Carl A., my chances of winning without corroboration of Pat's story was very doubtful.


The closest hospital to Pat's residence was Queen of Angeles—a hospital I had visited as a child for a concussion. I arranged for a meeting with the Administrator of Records and asked if Carl A. had been admitted in the recent past. The Administrator said he couldn't release the records because they were confidential. I anticipated that response and had a subpoena ready for him and a subpoena duces tecum for the records. Sometimes you get lucky. He produced an admission record and after thumbing through a few pages said that Carl A. had been admitted for seizures. "What type?" I asked. The Administrator said he didn't know, but in any case, Carl A. had passed away. “What?” I exclaimed. Shit, I wanted him in court. I asked what medication if any had been prescribed for him. The first drug he mentioned was Dilantin, a drug commonly prescribed for seizures. I reread the police report, especially the chemist analysis. The drugs were identified as cocaine, Quaaludes, and marijuana. But the pills in the unmarked vial were not identified. I called the District Attorney and asked that a chemical analysis be done on the pills.


On the day of trial, we were sent from the Master Calendar Court to the courtroom of Richard Ross. This particular judge had a terrible reputation for prosecutorial bias, interrupting defense counsel, aiding the prosecution, and taking over questioning. But there were other judges in the Criminal Courts Building who were just as bad. I didn't file an affidavit to disqualify Ross because I would only get one challenge, and I could be sent to another judge just as bad.


I made a motion to suppress the evidence on the basis that there was no consent and no search warrant, and therefore the search was in violation of the Fourth Amendment to the Constitution prohibiting unreasonable searches and seizures. Both Pat and Carol M. testified that no consent was given. Officer K. testified it was. To no one's surprise, the judge believed Officer K., and the motion was denied. The next day, the D.A. asked if I would stipulate to the findings of the chemist without calling him to testify. This is a standard question, and I always stipulated; there was no reason to bring the chemist in except to annoy the prosecution. The legal objection to him not testifying is hearsay (a statement made out of court offered to prove the truth of the assertion), but I knew that the D.A. would just call the chemist. I had a better idea.


"What was in the vial, the unidentified pills?" I asked.


"Dilantin," he responded.


"I'll stipulate to the controlled substances if you will stipulate to the Dilantin."


"Okay," he agreed.


I thought to myself, you just lost the case and we haven't even picked a jury yet. This was premature thinking, as I was about to find out.


The next day, the judge called counsel into chambers to discuss any possible resolution. This is entirely normal. No one really wants to go to trial. The judge hates it because it prevents him from conducting any other business. Judges want pleas of guilt, so does the District Attorney. If too many cases go to trial, it stops the flow of guilty pleas. Many defense counsel fear trial because for some they will lose money, for others they cannot hide their incompetence or mistakes. I didn't fear trial, but I always got nervous. The D.A. and I walked into chambers.


Ross asked the prosecutor what the People's offer would be (Judges and prosecutors like to refer to the D.A. as "the People." I always liked to remind jurors that we are all part of the People, including the Defendant). The D.A. looked at his file and said a County Jail Lid. That meant the judge would be free to sentence her to no time or up to one year in the County jail and three years formal probation with the possibility of early termination. The offer sounded more like a disposition for Possession For Sale. In any event, I knew Pat was not pleading guilty under any circumstances.


My response was brief, “I'll convey the offer, but I know she won't take it.”


The judge quickly added, “If you go to trial and lose, State Prison is not off the table.”


At this point, I was pissed. The judge knew and I knew that this was not a State Prison case. Ross felt there had to be a price for exercising your right to a trial. In his view, if he gave me the same deal after conviction, he was giving me a free trial with no additional risk. I despised this tactic; I wasn't a rookie. I had tried many cases with outstanding jurists, some who made it all the way to the California Supreme Court. Ross's threat didn't affect me. It gave me the opportunity to say something I always wanted to say and to reverse the intimidation.


“I'll convey your message, but just to save time, rack-em.” This meant "get the jury panel up here, let's start the trial."


I knew the trial was going to be a street fight, a brawl; the courtroom reeked of testosterone.

The courtroom was soon filled with prospective jurors, twelve sitting in the box, and fifty to seventy-five seated in the audience. Jury selection is called Voir Dire—to speak, to hear. I liken it to playing with a Ouija board—a guessing game. Attorneys look at body language, race, education, and what jurors are reading. In the end, it is still a game of chance.


The most disconcerting issue arose when the judge asked if anyone had relatives or friends in law enforcement, and half the room raised their hands. This time, I had a hunch about one particular juror, an African-American woman about forty years old. She was a probation officer. Normally, I would never pick her, but she was strong, intelligent, and experienced in law. She could be the foreperson, a leader. She would know the difference between a real case and this one. I left her on the jury as did the D.A. Four hours later, we had our jury and alternates.


The D.A. called his first and only witness, Officer K., who testified that he had found the satchel in Pat's house and had looked inside and found the drugs. And that was that. On cross examination, I made a tactical mistake.


"You arrested her for possession of a controlled substance, correct ?” I asked.


“I arrested her for possession for sale as well," he responded.


The D.A.'s office decides what to charge, not the police. My error. By that point, it was the end of the day, and the Jurors were excused for the night. Officer K. walked passed me.


”Well, that was really chicken shit!” I said.


Officer K. got very close to my face, too close. “Well, what are you going to do about it?”


“Be here tomorrow, and you'll find out,” I replied.


I still had the “knock out” hospital records that were unknown to the prosecution. However, unknown to me, the judge planned on taking over for the D.A.


The next day, I called Patricia as my first witness. Unusual for me, since I always called my client last, giving them the chance to hear everyone else testify first. However, this time I wanted the hospital records to be the last impression in the jury's mind. I called Carol M. after Patricia to corroborate her story. I then called the Custodian of Records for Queen of Angels Hospital. This was the moment.


After my first question, “How are you employed?” the D.A. objected on the grounds of relevancy. I thought, What in the Hell? The judge sustained the objection. I asked to approach the bench to make an offer of proof, called a “proffer.” I explained the records would show a nexus, a connection between Carl A., the drugs, and the satchel. Furthermore, the records would corroborate Patricia's testimony that Carl A. had left feeling sick and couldn't be located and she didn't know where he was. This alone made the record relevant.


The judge still claimed that my proposed evidence was irrelevant. This whole discussion was taking place at the side bar. I asked the judge to excuse the jurors so I could make a complete record. He knew I was doing this for a possible appeal. Judges hate being reversed. I told him with no uncertainty that if there was a conviction, I would most definitely appeal. He relented, did not excuse the jury, and said, “OK, I am going to let it in.” I resumed my place at counsel table and said, “No further questions.”


Court: "Are you sure?"


I knew something had gone wrong. What did I miss? The witness was almost at the door, about to exit. My plan was going down in flames.


At this point, I need to digress for a moment . . .


A hospital record offered to prove the truth of its contents is hearsay—inadmissible unless a hearsay exception applies. However, a hospital record is also a Business Record, a well-established exception to the hearsay rule. But a proper foundation must be laid first before the record is admissible. The foundation consists of: the custodian must be familiar with the manner the records are kept, the records must be kept in the ordinary course of business, and the method of record keeping is trustworthy. I realized I hadn't asked him these foundational questions. What the judge meant when he said "I'll allow it" meant that he would allow it if I laid the foundation.


From my chair at counsel table, I said in a loud voice to the witness,”Wait, will you please resume the stand?”


The judge went apoplectic, screaming, “Don't ever order anyone in my courtroom!”


I think he was actually angry that I had figured out his attempt to block my evidence. I proceeded to lay the foundation and then went through the entire hospital record with the witness. When I got to the crucial prescription for Dilantin as the first medication ordered, I was standing next to the witness and able to see Officer K.'s reaction to the testimony. He hung his head down, shaking it side to side. When we made eye contact, I mouthed, "That's what I'm going to do."


The jury got the case. I remained in the Criminal Courts Building, expecting a quick verdict. The jury came back in one hour and twenty minutes with a Not Guilty. The probation officer was the foreperson. The entire jury was waiting for Patricia in the hallway. Congratulating her and wishing her well. They hugged and embraced one another. I realized that I had left a book in court and returned to get it.


As I entered the courtroom, the clerk said, ”Oh the conquering counsel.”


The judge added, ”Oh, he has bigger fish to fry.” He was an asshole to the end, attempting to minimize my win.


"I'm happy to take it," I replied.


Patricia offered me plumbing supplies for life.

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.

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