I have said many times that part of the attractiveness of the town to which I am attached is that it sits at the end of a five mile long dead-end road as it tends to keep away the insincere. Highway 131 is the shortest state highway in the system running a mere 4.39 miles to be exact from US 101 to Main Street. There is one way in and one way out of town if you don’t count the winding and bicycle infested Paradise Drive. 

And it is a town, not a city. Tiburon was originally incorporated as a city but for some reason prior to my tenure here decided that city was too strong a word and that town more accurate descriptor in the collective psyche of the 7000+ that reside therein.

The two lane that lead into town choke down to one lane at a big right turn known as Blackies Pasture which sits at the bottom of a hill and is often times occupied by a radar wielding officer. Cars driven by those unfamiliar with the lay of the land some flying over the crest of the hill into the waiting arms of the Tiburon PD who assess an entry tax based on the number of miles per hour over forty the car is traveling.

Our sense of impenetrability was recently pierced by the grizzly murder a local resident. She was in her mid-70’s with no known enemies. There had only been two murders that actually took place in the combined municipalities of Tiburon and Belvedere before when someone shot her in the head in her own yard. The combined effort of law enforcement did not nor have they ever developed any semblance of a suspect. 

The two prior killings that were committed east of Highway 101 and west of San Francisco Bay were fluke type of things that did not impact the secure feeling that permeates the peninsula. The first one happened in Belvedere and was obviously a contract killing on a big time drug dealer. The victim was left in a pile of narcotics and cash. The money and his collection of Himalayan art was divided between the City of Belvedere, County of Marin and the federal Drug Enforcement Administration. No one was ever fingered for the hit. The second one involved an adult son smiting his father using ordinary silverware that was destined for use at a dinner the two of them never shared. He was caught a few days later in San Leandro with the fork still in his pocket. The DA prosecuting the case asked me if I knew anything about the relationship between the two. I told him that I was acquainted with the father, did not know of anything going on between he and his son but that there would seem to have been issues.

The recent murder shook so at the roots of security that the call to take action took hold. A proposal for a camera system which would automatically photograph the license plate of each and every car entering town limits. For most bergs this would be an impossible task because the number of points of entry would necessitate too big of an expense without really establishing an impermeable barrier. It the case of our town these need be only 2 cameras, one on Tiburon Blvd. and one on the unlikely secondary means of egress, Paradise Drive. Baring an amphibious assault, no vehicle would be able to roll into town, do evil and then escape without detection. In the case of a heinous crime it would be a simple matter to go through all of the license plates of all of the cars coming into town during the relevant time period, working from the time it was committed, backward, and establish who has an alibi and who does not.

The potential for abuse and perceived erosion of our right of privacy cause a certain amount of controversy and gained our little borough a flash of national media publicity. It was a polarizing and therefore an interesting issue. It was the epitome of, “If you have nothing to hide you have nothing to worry about,” vs., “Don’t come crying to me when you wake up with numbers tattooed on your inner forearm.”

Examination of the pictures taken by the cameras would only be done in reaction to an event and not routinely just as the refs can’t call a penalty seen on an instant replay that wasn’t flagged during play. Skeptics saw this as an empty promise and also feared use in civil/family law situations to establish misbehavior on the part on an ex-spouse-to-be or an association with person and/or persons outside of the curtelage. 

One impassioned local asked to hire me to address the Town Council as a paid lobbyist of sorts to argue against installation of the cameras on constitutional civil rights grounds. He was the brother of a gal with whom I had an association so I listened, had a spirited discussion regarding the golden age of individual liberty and the imminent approach of the jack-booted thugs under color of office after which I politely declined the job and the retainer. It was explained to the prospective client that I could not in all good conscience accept a fee for a service that I would be ineffective in performing. My status as a criminal defense lawyer would result in the formation of an opinion that I was advocating out of self-interest. The hue and cry would be heard coming from behind as I addressed the five members of the community elected to make decisions of this sort, “We know what you do. You just don’t want your clients to get caught by the police.”

If the notion of self-interest was examined any deeper than the polish on a toe nail it would be apparent to anyone with two brain cells that happened to spark that my desires are quite the opposite. I actually want then all to be apprehended. I don’t make any money on perpetrators that are never nabbed. The perfect situation from my perspective is that they should be arrested and then exonerated by my exploitation of the tiniest of loopholes through which only the most supreme of legal intellects could slip.

The belief that the practice of criminal defense law renders one “pro-crime” is unevolved at best. It ignores the fact that we are actually people too and don’t like to see individuals injured by the actions of others as well as the above stated pecuniary purpose fundamental to our very existence. If no one ever gets caught we have to find another way to make a living.

In the end fear prevailed as it is the emotion most effectively used and abused by government since the dawn of civilization. Time will tell if the cameras are the panacea they are touted to be but in the meantime, watch your ass when you come to our town.

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Clients naturally seek an opinion from me that predicts an outcome in accordance with their desires. Simply put they want to hear their lawyer tell them that they will win. I invariably resist the temptation to dispense the requested reassurance for a variety of personal, practical and historical reasons. Prospective clients especially want to hear that the cash they are about to lay out will not be done so in vain. Long ago I learned to refrain from giving them anything that remotely approaches or could be misconstrued as a guarantee of a specific outcome.

Personally, it is my preference to render a prediction that is less than optimistic at the outset and upgrade the prognosis later on in the relationship than to initially paint a rosy picture only to yank the rug out from under their feet when things develop in an adverse manner. People are reluctant to accept my refusal to tell them that, “Everything will be all right,” even though I tell them that it would be irresponsible to for me to predict an outcome without knowing all the facts and circumstances. Many go elsewhere and write a check to the lawyer who is willing to tell them what they want to hear as an inducement to getting a person to write the lawyer a check. This tactic is oftimes followed by a recantation of the prior confident representation later on in the deal, pointing to some allegedly unknown and/or undisclosed fact that snatches defeat from the jaws of victory. This is bullshit in my mind since a lawyer should not render an opinion in the absence of a complete understanding of what lies ahead. Many individuals who have been victimized in this respect return many months and mucho dinero later to tell me that they should have listened to me when I told then that it would be a rough road with no guarantee of success.

Practically, it is not a good idea to commit to a particular result and focus in that direction at the outset because it may be not be the correct path. As Yogi Berra is quoted as having said, “When you come to a fork in the road, take it.” But don’t take it prior to reaching it. One should not choose from a number of alternatives unless and until it is necessary to make that choice. Litigants understandably want to know how much money they will get from an accident claim or how much jail they will have to do in recompense for a transgression. They are entitled to this information, but not until it is actually information and not mere speculation. Care must given in outlining various scenarios and putting actual numbers of dollars or days in custody in the equation. When integral to preparing a client for future possibilities, I will use absurd figures, most times unrealistically low when explaining how things may play out. I will tell a person making a claim after an automobile accident that if their medical bills total one dollar that they would likely be claiming a total of three dollars after adding in compensation for pain and suffering. A person facing a jail sentence will be told that if he or she is sentenced to six days in jail they would have the option of serving the actual jail with fifty percent time off for good behavior leaving three days in custody or of doing the entire six days in Lindsey Lohan jail, aka slave labor with no time off for good behavior. It is explained to them that I have refrained from using semi-real numbers in the equations because no matter how much of a disclaimer is given, they will fixate on that amount of money or jail as having been an actual prediction as opposed to an analogy for the purpose of explanation. Then when four months jail turns in to nine months jail or when ten thousand dollars turns out to be five thousand they say, “Hey wait. You told me it would be X.” No amount of, “I said that was just and example,” or, “I wasn’t using real numbers,” will shake a disappointed person from the belief that I somehow lied to them bout the predicted outcome.

Historically, it is unwise to point to center field because for every one Babe Ruth there are one thousand asses as is shown by most if not all of the great stories from mythology and religion Midas, Prometheus, Cassandra, Icarus, Pandora and Ramses to name but a few would testify under penalty of perjury that nothing in this life is punished more swiftly surely and severely than the sin of false pride. When asked to make an uber-positive prediction at any stage in the relationship I cite the above listed and others who have been relegate to the eternal damnation column and tell the inquiring individual that they really do not want me to be express undue optimism because, “God will smite me…excuse me, God will smite thee if i commit the sin of false pride.” That usually ends all inquiry in this respect.

The bottom line is that the result is the same whether I predict it with confidence or not. Bragging about it in advance does not make it more likely that we will achieve to the full potential of the situation. Many clients or prospective client have heard me explain that unfortunately I am not in the good news business. this is the reality business.

I am undoubtedly financially poorer but feel that I am spiritually richer for the path I have chosen this respect.

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It probably goes out without saying that any sort of contact with San Quentin has its unpleasant aspects but actual penetration, however slight, is an exercise in revulsion. I mean to say that those of use who have had the duty or inclination to go inside the gates and walls know only too well that the level of decay permanently raises the threshold of filth beyond which one cannot endure.

The first building of the actual prison is crowned by a parapet structure which bears the date of 1890 as having been constructed in that year. Main visiting takes place in a red brick blockhouse in which large timbers have been placed so as to give the illusion that the Frankenstein retrofit will brace the building sufficiently in the case of a seismic event.

Most of my encounters with clients take place in a speaker/telephone interview booth. Even lawyers are not allowed to take first aid type alcohol pads with which to sterilize the telephone receiver on the representation that they will be available at the second check-in desk. Rarely is this the case. In reaction to an expression of OCD quality germaphobia I have been given a blob of hand sanitizing gel on a paper towel.

They, meaning the CO’s have actually lost people I was intending on seeing on at least two occasion. You would think that keeping track of the whereabouts of all of the prisoners at all times would be #1 on the agenda at a prison. San Quentin however has a huge influx of new conscripts into the system on a daily basis. It is no longer the high security, maximum danger place that it once was. The so-called Reception Center is but a transfer station which begins ones prison experience from any of a number of counties in the Northern California area. When someone arrives on a bus from county jail they necessarily install him in a cell and ask questions later. It is a minimum of a week and sometimes as long as two or three weeks before any given inmate is booked into the system with a CDC number so that he can be located on request. Inmates are then sized up on a point system and generally moved to other appropriate loci on the CDC travel brocheur. A stay in the Reception Center is only supposed to be ninety days but in some cases is much longer because once CDC has someone they are in no hurry to do what ever they are going to do with him.

Cells in the Reception Center are approximately 9′ x 12′ inhabited by two stink-ass guys with little or no yard time outside thereof. After waiting an hour and a half for them to find one of my people the CO suggested that maybe this guy was refusing the visit but the word just wasn’t getting back to the visiting area. I opined that this was unlikely since he was in reception and my understanding of the conditions there leads me to conclude that if he was going to be out of his cell for as short a time as a half hour but he was told that he would have to first eat a dog turd he would probably do it. The CO failed to see the logic and/or humor in that observation and told me I was lucky I only came from Tiburon and not Los Angeles or San Diego for nothing. That may be true but did not make me feel any better about the past ninety minutes that were better spent elsewhere.

The prison authorities are very particular about the color and cut of the clothing worn by visitors, legal and non-legal, alike. Not to mention the fact that one must pass through a metal detector that if airport security were set to the same level of scrutiny the line to board an airplane at SFO would end somewhere near Chinatown. The regulations are far too numerous and tedious to inflict upon an otherwise engaged reader. Accordingly, only the high spots will be touched upon. I can bring in my case file but it must be devoid of all paper clips and staples, which is unreasonable. Usually I bring with me only fax confirmation of the visit upon which to take notes. Only a finite number of one-dollar bills can be taken behind the walls with which to avail oneself of the commissary vending machines. One car key can be in my pocket but no fob or remote is permitted. No blue jeans are allowed because some of the prisoners wear blue denim. One would not want to be mistaken for a one of then, now would one. Navy blue slacks on the other hand are perfectly acceptable. No green of any shade, tint or tone is allowed. The guards wear green and despite the fact that it is highly unlikely I would be mistaken for one of them, green is strictly verboten. I consider it a minor victory if I am sent back to my car only one time on any given visit to relieve myself of an offensive item. 

The color coding came to point one day when I worn a pair of pants I routinely wore to San Quentin because the were drawstring as opposed to belt loop type trousers. This meant one less item to remove for the X-ray machine along with my shoes and jacket. the CO at the check-in desk asked me what color the pants were. I told him they were gray or if one wanted to get very particular, slate colored. He specifically inquired if they were green to which I responded, “No, they are dark gray or slate, take your pick.” He then informed me that he was color blind and they could be green from his sensory perception. I took pause with amazement that the CO’s union possessed such drag so as to be able to preserve the job of a color blind member in a position where color determination was crucial. Another CO not so afflicted was called over to make a final determination as to color of my pants. I explained that I had worn this particular pair of pants into the prison on dozens of occasions and had never been mistaken for a guard. The precedent I cited meant nothing to CO Black&White who summoned a colleague for a ruling. The second set of eyes was initially ambivalent provoking additional argument for my position that the pants where many thing, but not green. Discussion ensued and I was ultimately allowed to enter with the admonition that I should select another item from my wardrobe next time. I did and the pants in question were relegated to leisure wear.

One need look not farther than the parking lot to see the blatant and intentional caste distinction between those allied with the prisoners and those aligned with the guards. The staff parking lot is newly paved, freshly stripe and perfectly level. The lot that to which legal and personal visitors are relegated has not seen fresh blacktop in decades, is worn down to the bedrock in some areas and has ankle deep potholes in others that fill with rainwater providing for a steeplechase run from the car to the check-in counter every winter.

No where is the intentionally unhygienic infliction of dehumanization more evident that in the visitor’s restroom. While the commodes and other fixtures are kept in a reasonable state of sterility sitting on a slightly corroded stainless steel is a bar of soap. Every other public accommodation in the state contains some type of liquid soap dispenser which has to date failed to find its way into the San Quentin visitor’s restroom. And not any type of anti-bacterial soap. Just a basic white greasy ass bar of soap with a couple of dirt veins running longitudinally. 

I cannot imagine what I would have to get on my hands which would compel be to lay my profane paws upon that bar of soap. If I had my own shit on my hands I would leave it be as opposed to lathering up a bar of soap that has presumably suffered atrocious acts at the hands and other body parts of friends, family and associates of heinous persons who can be assumed to have heinous traits themselves if only by association.

What would it take to put a little plastic bottle supported by a chrome bracket and button valve so that an individual who is probably thoroughly intimidated prior to pissing on his or her own fingers can lave sus manos without fear that heretofore undiscovered microbes will be introduced into the bloodstream via dermal osmosis and creating an internal chain reaction rendering their host a poster child for a George Romero film?

How much would it cost to place a ubiquitous dispenser on the wall so that a false perception of benevolence could be maintained. It’s my understanding that the soap company will give you the plastic dispenser so long as you agree to fill it up with only their product. It is my further understanding that liquid soap is actually more economical in the long run, excepting I guess if we are talking about a bar of soap that has been there the last five years because no one has had the guts to touch it. 

So if you happen by the San Quentin visitors restroom, be careful when you pee.

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I was arguing a sentence in front of Judge D’Opal one day, the exact nature of which I do not recall. It came down to a call between 60 days jail or something less than 45 days. The distinction between the two was actually more significant than the arithmetical difference between the two numbers. Most people sentenced to jail in Marin County do not actually serve the jail in the so-called Blue Roof Inn dubbed such in homage to the color of the top of the Civic Center building designed by none other than Frank Lloyd Wright. We referred to our jail by this benign moniker even though it had been moved a bit north, out from under the aesthetical pleasing lines of only public building designed by Mr. Wright that was ever actually constructed. Presently the jail was sunk in a hole, excavated in a grassy knoll that abutted the northwest corner of the existing structure. James Murray opined at the time of proposed construction of the new jail that society had progressed from the point where we dug holes and threw people into them. This did not overcome the hue and cry of law enforcement for a new lock-up with more cells and less sunlight.

There were two alternatives to having ones room and board covered by the County for a period equal to 2/3 of the actual sentence after taking into account time off for good behavior. If a person was sentenced to 44 days or less, an application could be made to perform community service work known as AOWP, Adult Offender Work Program. A jail term of 45 days or more pushed a sentenced individual into applying for county parole aka home detention aka ankle bracelet. 

In trying to convince Judge D’Opal to cut this guy a term which was less than the one recommended by the probation department I argued that 60 days on ankle bracelet sitting home watching cartoons would not make nearly as significant an impression on him as would some old fashioned physical toil without pay. In doing so I referred to the proposal as ‘slave labor’. Judge D’Opal wrapped in the rainbow flag of political correctness called me to the for a brief off the record parley. She told me that there were some African American persons in the courtroom who probably did not appreciate my use of the terms ‘slave labor’. I grabbed the right lapel of my jacket upon which my diamond Rotary Club past-president’s pin sat. I told her that we in the Rotary Club did not appreciate calling it community service because it equated an involuntary situation with the volunteer work we did. I also pointed out the historical fact that African Americans did not have market on slave labor cornered and were hardly unique in that experience.

Always the diplomat I added, “Never the less, it’s your courtroom and I will refrain from using that term in the future.” I walked back to counsel table without further comment and continued my presentation. If an apology was what her honor was seeking, she is still waiting.

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Let’s face it, the government controls the process within which myself and the accused must function. The what, when, where and how are largely decided for us with little or no input from our side .

I never refer to an individual I am representing as “my client”. Not in open court, not in legal filings and never in correspondence. First of all it is inappropriate to profess to possess a person in any manner. This is a matter of abstract philosophy. They are not mine or anyone else’s at least since adoption of the 13th Amendment. As a matter of advocacy, use of the third person tends to dehumanize, depersonalize and objectify which is something to be avoided, especially in criminal defense. Much better to state that, “Mr. Wrongly accused was nowhere near the scene of the crime,” rather than, “My client was….”

Similarly I never refer to the opposite side in a criminal case as “The People”. To the judge I most often refer to my opponent as “The Prosecution” or “The Prosecutor”. In front of a jury it is “The Government”. I can’t call them “The People” because we are people too. In actuality it is not “The People” but The Government or at least one arm of government. This also helps to depersonalize the opposition.

Neither myself nor anyone I represent are allowed to wear leather in court at any time, under any circumstances, except for shoes. No matter how nice or what the cost, leather garments look hoody. I have sent people back to their car with a thousand dollar leather coat from Nordstroms.

Men in custody tend to mess around with their facial hair for no other reason than sheer boredom. They can do all they want but whether in or out of jail they are not permitted to attend any substantive court appearance with a van dyke/goatee. Full beards, outrageous moustaches are acceptable along with of course, a clean shaven look. My absolute bar on the goatee is founded in fact not superstition because it makes a man look evil. There is subliminal sinister quality to that particular configuration because every single visual representation you have ever seen in your entire life of the Devil, he is sporting a van dyke. I cringe every time I see a news report of a high-profile defendant with this configuration of facial follicles. Sometimes the big city lawyers aren’t paying attention to obvious detail.

Seating during a jury trial is very important. The prosecution would like the defendant as far away from them and the jury as possible. I like to seat my client between me and the prosecutor. In Marin courts this has to be conceded with an in-custody defendant because the security concerns of the Sheriff mandate that they sit in a certain chair that is not in fact furniture but part of the real estate. It has special hardware in the back so that an unruly individual can be chained to the chair without the jurors seeing the steel wrapped around his waist. As a point of honor I once sat in that chair for a portion of the trial so that the accused individual would not be isolated at the end of the table. We subsequently had to switch seats when he failed to show midway through the proceedings and got himself remanded into custody for the duration.

In the appropriate case I like to sit before the jury with as little paper in front of me as possible. The prosecutor will wheel in a cart full of files while I sit beside one or two manila folders and a writing tablet. This is done subliminally to convey my feeling that the whole thing is no big deal. Every once in a while I get caught short without the correct police report for the present witness but what the hell, that’s what improvisational skills are for.

During a trial I will eat lunch anywhere but the courthouse cafeteria. If the defendant is in custody we go to great lengths to insure that the jury is not informed of this fact. If I am seen dining without the client the natural conclusion is that he or she is chomping down a baloney sandwich at county expense out of view. While the jurors probably figure it out at some point, it is not a good thing to remind them of it at every turn so I take my repast elsewhere. Even with the luxury of an out-of-custody defendant I try to avoid dining in the vicinity of the jurors to avoid the possible mis-speak in their presence which may present an image which differs from the one we are portraying in the courtroom.

Whatever beastly acts the individual sitting next to me may be accused of is no excuse to treat him or her as anything other than a family member. I always take an opportunity to touch the shoulders or arm of the person on trial to convey the thought that he is not the disease that the government alleges he is.

I never use the word ‘victim’ except after guilt has been established and then only as an expression that the accused is accepting culpability for this actions in a ploy for mercy. The V-word has no place in a courtroom prior to that. There is no crime and therefore no victim unless and until there has been a jury verdict or a plea of guilty. I have a standard pre-trial motion which asks that the prosecutor to refrain from use of the V-word. This motion was routinely granted because the authority behind it is solid. The prosecutors are so married to the concept that they are there to make things right and that there must therefore be a victim would inevitably violate the order by uttering the V-word usually on direct examination of a police officer. I would then scream for a mistrial which would be denied and used later by an appellate lawyer seeking to overturn a conviction. Lately the local judges, having heard this play out no longer grant the motion but politely ask the DA to do their best to avoid use of the V-word.

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