I was appointed to represent a man accused of robbing the local sex toy store. The surveillance camera was not functioning so there was no opportunity to listen to what was said during the crime, but if there had been it would have sounded something like this as he pointed a 9mm at the counter clerk, “Gimme all your cash. And that big one over there shaped like corn with a crank on the end…..Oh, and some anus creme.”

I received a routine call from Jesica at Alternate Defenders Inc. [ADI] offering me a case on an appointed basis for a defendant my the name of Mr. Gerard. She was in the middle of giving me the relevant data when another call came in on her end so I was briefly put on hold. When Jesica returned on the line she told my that the other call was from Mary, another ADI lawyer, who she had called first on the Gerard case and was returning the call to accept the appointment. Jesica asked if I minded if the case went to Mary because she really wanted it. I had plenty of work at the time, so I told her that it was no problem if Mary got this one. I knew nothing about the client or the case.

 The following day I was accosted by my colleagues Doug who asked me if I was taking the Gerard case. I told him that Mary had first dibs on it so I let it go to her. Doug said he had represented Gerard on a case when he was a baby public defender some twenty years earlier. I then heard of his recurring nightmare of his initial interview with Gerard in the Marin County Jail during which recounted the facts of his crime which consisted of full on fucking a nine year old girl. The worst part was that Gerard licked the salacious grin on his lips and expressed zero remorse for the acts which eventually landed him in prison for an all too brief period of time.

 Come to find out that Gerard had, imagine this, done it again. It came to light that he had preformed a variety of sex acts on a number of neighborhood girls which undoubtedly will adversely affect their ability to have normal physical and emotional relations for the rest of their lives. As with a lot of cases of child sexual abuse, the family of one of the girls reported it to the police then after the allegations became public, more came forward.

 The evidence against him was damning but he refused to accept any sort of plea bargain. Not that the offers were any actual bargain because the government was not going to repeat the prior error by ever letting him breath fresh air again.

Mary, ever the professional, drug him through a jury trial, the result of which was largely predetermined. The speculation was that Gerard wanted to see the little girls one last time, during their court testimony, so he could take with him a final memory with which he could masturbate himself into the eternal oblivion of a lifetime behind razor wire.

When it came time for sentencing a report and recommendation was issued by the Probation Department which set the tally at 250 years in prison for his sins. Mary made various legal arguments which lowered the penalty to 150 years.

 The next day’s headline read, “Convicted Child Molester Gets 150 Years In Prison.” I ran into reporter Gary Klein, the author of the newspaper, on the courthouse floor a few days thereafter and registered my objection to the biased point of view.

 “Why didn’t the story read, ‘Brilliant Lawyer Saves Man 100 years in Prison’. You reporters are so unfair. Always focusing on the negative.”

There are two crimes, the prosecution of which have large political components. Those are DUI and domestic violence. Both of these types of offenses have large groups of people advocating extreme, automatic and draconian penalties for persons perceived to have committed such.

I am certainly not advocating that there should not be criminal consequences for drunk drivers and wife beaters but do take issue with the lack of discretion given to judges and prosecutors in fashioning the appropriate societal remedy and in the case for those accused of domestic violence, the blatant sexism attached to the political agenda flies in the face of equal protection under the law as guaranteed by the Constitution of the United States of America and the State of California.

It may be the case that the male of the specie holds some undetermined edge in the perpetrator category when compare with offenses committed by the distaff portion of the population but the persistent skew in response, analysis and reaction to incidents of alleged domestic violence stands in the way of anything near an accurate compilation of that statistic.

The police who are the first responders in such situations are obliged to make a snap determination as to which party was the dominant or primary aggressor when called to the scene. More often than not that decision is made by taking the word of the first person to the phone or as to which person is perceived to have suffered the more significant injuries. No credit is given as to who may have been the initial aggressor or as stated in playground terms, “Who started it?”

The organization in our area that is involved in not only assisting true victims of partner abuse but also operating the 52 week batter’s program mandated by state law for all those caught under the net was formerly know as marin Abused Women’s Services or MAWS. The presupposition of this name was ignored for three decades before they cloaked the she-wolf in sheep’s clothing by changing its name to the Center for Domestic Tranquility. The change was in name only and not in any substantive manner.

The sexual bias runs deep in the system despite professed efforts to put forth a face of gender neutrality. I have had the displeasure and amusement of cross-examining the government’s expert on domestic violence on three occasions testifying under Evidence Code §1107. The law provides for testimony by a so-called expert on domestic violence who knows nothing of the specifics of the case or the parties thereto but rather espouses a purely political agenda that all men are oppressors and all women are victims. This “expert” is not a psychologist or sociologist but rather a lawyer who reacted with disdain every time I addressed her as “counsel” which is the mannered and proper albeit depersonalized way lawyers refer to each other in the courtroom. She points to charts entitled the “Wheel of Control” and “The Cycle of Domestic Violence” through her expertise as author of a 1000+ page compendium of essays on the subject. When I asked her how many of those pages concerned violence by women on men she answered, “None.” The reason given was that she considered it extremely rare and not worthy of consideration. Kind of like an orphan disease.

I was personally punched so hard in the side of the head by my first ex-wife during her blind drunken rage that I saw stars but had no time to shake it off because there was another one on the way. I caught it with my right hand at which point she went for the phone with her left. A moment of clarity must have occurred when I asked her, “What are you going to tell them, that I skinned your knuckles on my cheekbone.” She put down the phone and we resolved our difference without government intervention.

 So I tell that story to clients who tell me that they were just defending themselves from 135 pounds of fighting fury and add that I sympathize with their plight because I have personally been with enough volatile women to understand their potential as sex partners. Unfortunately Newton’s Law eventually comes into play, that being the law of action and reaction. “You got the action and now we’re in the reaction.”

Sometimes it is just as important where someone serves time as opposed to how much time is to be served. Despite general sloppy use in the media, prison and jail are not synonyms. It is county jail and state prison. Two much different places to spend a period of ones life cut off from society.

Sometimes I get a guy that is relatively new to serious crime but facing a gob of time one way or the other who expresses an opinion that it would be easier to do the same amount of time in state prison rather than the Marin County Jail. While it is certainly true that prison has some freedoms that are non-existent at our jail such as actual yard time in the open air, more varied commissary items available and the opportunity to work outside the gate on a Caltrans crew or something similar. Our jail is a highly restricted environment that afford nothing close to out door time or meaningful jobs. 

When a greenie, so to speak, who has never enjoyed the accommodations at San Quentin State Prison, suggests that he would rather be in prison than our jail I usually push my reading glasses to the end of my nose, if I am wearing them, make direct eye contact over the top rim and respond as follows, “Listen asshole. I understand that you don’t like it here. You’re not supposed to like it. But guess what, it’s clean and you’re safe. I can’t say that about #1 East Sir Francis Drake. I can personally guarantee your anal sanctity in this jail. If you go across the street you’re on your own.” And then I wait and let him speak. It’s usually something non-sequitur and the subject of any net benefits of prison never comes up again.