by Justice James Marchiano

StorieS from the

2

P R E F A C E

The Bray Courthouse in Martinez is named after Justice A. F. Bray, a distinguished

Contra Costa County Superior Court Judge and later a Presiding Justice for the First

District Court of Appeal. Many noteworthy trials have taken place in the courtrooms on

the second and third floors. The stories of some of those cases have been fictionalized

to fit the themes of punishment, mental illness, ethics, and incarceration in our

justice system. The accounts originally appeared in the Contra Costa Lawyer magazine.

3

Table of Contents

S h o R t S t o R i E S

Guitar Man’s Psalm 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Empty Bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The Secret. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Déja Vu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

4

GuitarMan’s

Psalm 23

5

The light black skin on

his forearm had been transformed into

a canvas for Jasper John-like swirling

tattoos. As Willie Banks, aka Guitar Man,

moved his nimble fingers up and down

the imaginary strings of an acoustic guitar,

mimicking Jimi Hendrix, the rippling

tattoo figures sprang to life. His stage

was Department 47, Superior Court,

Martinez, and his audience eight women

and four men. They did not buy tickets

for the performance and an agent had

not booked Guitar Man for this venue.

Several months before, 49-year-old

Willie Banks, trying to finish a drug re-

habilitation program, unemployed and

unwilling to panhandle, tucked packaged

bologna and a bakery roll under his

shirt in the Empire Market. The market

was a surrogate for the big chains that

ignored that part of the tough Iron

Triangle of Richmond. A checker saw

Willie leaving with a package sticking

out from under his shirt and alerted

her boss. When the assistant manager

grabbed Willie outside, he did not resist

— his broken spirit had been through

this many times in the past. A Richmond

cop arrested and booked Willie for a

488, petty theft that the charging D.A.

escalated to a 666 petty theft with a

prior, making Willie Lamar Banks eli-

gible for state prison. The booking officer

found several crushed Pepsi cans and

scribbled music notes in the accused’s

pockets, and a pocket bible earmarked

to Psalm 23.

Public Defender Joyce Sawyer was

assigned the Banks case — J.D. 1982

from Hastings Law School, LL.M in

street law from the Richmond Public

Defender’s Office, nicknamed “The Great Suppressor” in the early 1980’s when the

appellate courts liberalized the rules of

search and seizure on a regular basis.

Back then, Sawyer was always one step

ahead of the opposing deputy D.A. in

the pretrial department. But the pendu-

lum swung the other way in the 1990’s

and Sawyer’s batting average shrunk

from a lofty .650 to less than .100 —

she counted her victories by hung juries

leading to favorable pleas and not by

favorable rulings on 1538.5 motions. She

reached a point in her career where suc-

cess in her mind was measured not by

cases won or lost but by the satisfaction

of helping clients navigate the system with

some dignity. And she began doubting

herself.

Willie scarcely paid attention to his

lawyer as she piloted him through the

shoals of various hearings. His fingers

strummed his imaginary guitar, strug-

gling to find the chords to a Hendrix

song, and occasionally he perused his

crumpled, earmarked pocket Bible, a

gift from his drug counselor. Concerned

about Willie’s mental state, Sawyer

asked for a 1368 hearing to determine if

Guitar Man understood the proceedings

and could assist her in his defense. After

short interviews and long reports citing

DSM IV-R, the two court-appointed

psychol ogists deemed Willie Lamar Banks

competent to stand trial. They noted

his preoccupation with depressive, self-

imposed ideation of guilt and his delu-

sional playing of the imaginary guitar,

but he seemed to understand the nature

of the proceedings and the consequences

if found guilty.

Judge Raymond Carlton sat in Depart-

ment 47. He was a veteran trial judge,

having presided over high and low pro-

file cases including death penalty trials.

Judge Carlton was a student of the

classics, especially poetry. His wife gave

him an anthology of Emily Dickinson’s

poetry, with most of the untitled, num-

bered poems. Number 883 exalted poets

lighting lamps, an inspiration that rever-

berated in Carlton’s mind. As he waited

in his cluttered chambers for court files

and the lawyers, he reread #883 one

afternoon and then scribbled out his own

version:

Reflection After Reading

Dickinson’s #883

Judges write but words,

Themselves — forgotten under dust.

The ideals they enkindle,

If truly just,

Ever ignite, as do the sun’s sparks —

Yesterday’s glow of justice

Into today’s radiant

Illumination.

He was preparing to rework his poem

when his clerk brought in the Banks case

file and Deputy D.A. Gerald Peraldi and

the once Great Suppressor. Carlton knew

Sawyer from his days of ruling on her

pretrial motions and he also presided

over several of her notable cases. Carlton

admired Sawyer’s tenacity, creativity, and

commitment to her clients. Her youthful

exuberance of the 1980’s had matured

into a seasoned defense attorney, well

versed in the evidence code and human

nature. But Carlton worried about signs

of burn-out in the once-bright comet.

Prosecutor Peraldi had only recently

graduated from misdemeanor trials in

Walnut Creek to felony trials in Martinez.

He was still learning the 30 different

exceptions to the hearsay rule and how

to exercise peremptory challenges.

Banks was caught trying to steal a

bicycle from an open, attached garage

12 years earlier. He was not a Latin

scholar but still pled nolo contendere to

burglary and received probation with a

modest county jail sentence. Now the

burglary conviction returned to haunt

6

him like the monster that could not be

killed in a horror film. The D.A. charged

the burglary as a strike, which raised the

ante to a possible six-year prison term.

Although Bank’s rap sheet echoed with

prior drug possession, petty theft charges

and the garage burglary, Sawyer told the

judge that her client did not want to go

to state prison. Somehow Banks thought

that if he were caught, he would end up

at the Marsh Creek Detention Facility,

as in the past, where at least he had a

roof over his head, time to play his

guitar and read his book of psalms. He

did not comprehend state prison, so he

clung to his pocket bible and belief in

a merciful God.

Judge Carlton was a master at plea

bargaining, but this time nothing would

come together. Like trying to broker a

deal between Hamas and Israel, a frus-

trated Judge Carlton was unable to find

a middle ground that would satisfy the

warring sides. A jury would determine

the outcome of this conflict in a simple

two-day trial.

Dressed in a dark three-piece suit

with a conservative power tie, Peraldi

confidently addressed the jury as he

described master thief Bank’s crime at

the market in his opening statement.

Guitar Man quietly strummed a blues

melody that lamented a good man gone

bad. The attentive jurors listened while

the checker, market manager, and arrest-

ing officer recounted what happened.

They also watched the one-man concert

at the defense table. The People rested.

The jurors appeared to rest too. The

judge recessed for the day.

Sawyer asked the judge to allow her

to talk to her client for a few moments

in the empty courtroom before he was

escorted back to the Detention Facility.

Judge Carlton could hear Sawyer arguing

with her client about testifying. Banks

alternately was crying, praying, and

playing his consoling guitar. Carlton

concentrated on his Dickinson revision

so as not to hear what was said.

The next morning, before the jury

was brought back, Sawyer addressed the

judge as Peraldi listened. Guitar Man

wanted to tell the jury in his own words

what happened. Sawyer advised him not

to testify. Judge Carlton explained the

privilege against self-incrimination and

how the jury could not use his right not

to testify against him. He also told the

defendant that he had the right to testify

if he insisted on doing so. Banks told the

judge, “My God is a righteous, forgiving

God. He is my shepherd and wants

me to testify.” Carlton rarely found a

divine presence in Department 47. But

he wanted Sawyer to be protected from

appellate second-guessing and accusa-

tions of ineffective assistance of counsel.

He asked Banks a few more questions

and then found on the record that the

defendant was freely and knowingly

waiving his Fifth Amendment right and

wanted to testify.

Guitar Man carried his guitar to the

witness stand and promised to tell the

whole truth, “so help me God.” He

pulled some small scraps of paper from

his pockets, unfinished tunes, cacopho-

nous chords, remnants of melodies that

danced in his mind. He told the jurors

that he was a street musician, that he

played blues and rock ’n roll for his

fans at the Richmond BART station

and in front of a liquor store. His mind

could not remember the songs he wrote.

Strange people were always stealing his

guitar. He held up his instrument and

proudly showed the cherry-red surface

and six silver steel strings that none of the

jurors could see. In a soft-spoken voice,

he told them about his days of lying,

drinking, and whoring around until

Reverend Johnson at Dismas House

helped him through the Twelve-Step

program and convinced him to accept a

saving God. The Lord was his shepherd

and would lead him to restful waters.

He testified that he had been tired

and hungry when he went into the

market and had not eaten in several

days. In his pockets were some crushed

Pepsi cans that he wanted to redeem for

change. He took the bologna and roll

and was going outside to the recycler in

back of the parking lot when someone

grabbed him and said he had not paid

for the items. He did not explain any-

thing to the police — they never believed

him in the past. He put his fate in the

hands of God. He started to weep as he

went beyond direct answers to Sawyer’s

soft questions, explained he was sorry,

and asked for forgiveness. His jail friends

told him to lie, or plead, or say nothing,

but he was finished with lying, would

not plead, and was inspired to speak the

truth.

On cross-examination, Willie Banks

repeated that he took the bologna and

roll. Peraldi asked no more questions.

The defense rested. The judge instructed

the jury on the law. Penal Code section

488: “Every person who steals, takes, or carries away the personal property of another with the specific intent to permanently deprive the owner of his or her property is guilty of the crime of petty theft.” Peraldi’s confident argument lasted

15 minutes. Joyce Sawyer stood up, took

off her glasses, quietly looked into the

eyes of each juror as she reclaimed her

1980’s idealism and gave not a closing

argument, but a summation — a summa-

tion of Guitar Man’s life; a summation

about the intent required by the law of

theft; and a summation about the virtue

of justice found in the defendant’s psalms

and in the lyrics of his imaginary music.

7

A Jimi Hendrix high-chord crescendoed

in Department 47.

The jury deliberated two-and-a-half

days, and they were hopelessly dead-

locked ten to two for acquittal — ten

forgiving jurors believed Guitar Man did

not intend to steal; he was just forgetful

and hungry.

After the hung jury was discharged,

Judge Carlton was able to persuade the

Assistant D.A. not to pursue the case

and simply credit the defendant six

months for time spent in custody wait-

ing for trial. Judge Carlton looked at his

reworked poem and read how the ideals

of justice become a radiant illumination.

Somewhere, some ray must be shining

on Willie Lamar Banks, strumming his

guitar and reading Psalm 23 to himself

— surely goodness and mercy followed

him. JM

8

TheEmptyBench

9

Like bookends, Martinez and

Benicia support the Sacramento River as

it angles into the Carquinez Strait. The

Martinez shore is home to a fishing wharf,

an aging dock, a small boat harbor,

and labyrinthine marshland trails where

people meander to experience the stark

scenery. As the afternoon tide ebbed

and exposed the muddy mouth of the

Alhambra Creek where it seeps into the

river, a hot summer wind bent the pliant

tule and cattails and forced the myriad

ducks to find shade. One could almost

taste the smell of the mixed bouquet of

pungent salt air, sweet wetland flowers,

and the dry heat that slowed the mind

and body. Facing the water and provid-

ing a secluded resting point for weary

walkers sits a memorial bench.

Twenty-five year-old Margaret Onett

did not experience the smells, sights,

and sounds by the creek, nor did she

care about the bench’s heritage — she

only saw the bench as her refuge in her

struggle to survive. Eye-averting walkers

passed by her as she placed her sleeping

bag on the bench, meticulously orga-

nized her possessions in a black bag,

and searched in vain for her medicine.

Her mother called her Meg, her few

school friends called her Maggie, but

she now wanted everyone to call her

Margaret, the name of a self-determin-

ing woman who lived on the streets. She

had not seen her parents in over three

years, had lost weight, but not the will

to carry on. Now the bench was her

temporary home where, in the summer

morning, she awoke to the “fell of dark,

not day.”

Several weeks later, Judge Raymond

Carlton leaned back in his chair in the

chambers of Department 47 on the third

floor of the Bray Courthouse and looked

out at the Martinez shoreline where he

walked each noon hour. While reflecting

on his 21 years as a judge, he had ambled

by the empty bench dedicated to a grand-

mother, paused at the arch bridge that

crossed Alhambra Creek to look east-

ward up the Sacramento River where the

oil refinery smokestacks spewed steady,

white feathery plumes into the air. His

introspection continued into the afternoon

while he waited for the presiding judge

to send another case to Department 47.

Judge Carlton worked in a justice system

that was like a cauldron filled to the

brim with competing, catalytic herbs

that boil over with a mixture of punish-

ment, retribution, revenge, recompense,

and little reconciliation. Parties, whether

contesting a criminal or a civil case, are

always adversaries. Virtue seemed absent.

In a reflective mood the judge read

again part of an email from a wise friend

defining forgiveness:

Forgiveness is not forgetting.

Forgiveness does not overlook evil and is

not the same thing as approval. Forgiveness

does not allow destructive harm to continue.

Forgiveness is willing to allow a person who

has offended to start over again because a

person can be larger than one’s faults and

mistakes. Forgiveness surrenders the right to get

even and helps us to rediscover our humanity

and the humanity of the person who did wrong.

As the judge thought about these

pro found words, his clerk walked in

with an L.P.S. file from the probate

department. In 1967 three progressive

legislators, Frank Lanterman, Nick Petris,

and Alan Short, sponsored bipartisan

mental health legislation to provide for

the involuntary commitment of mentally

disordered persons and for the prompt

treatment of persons with serious mental

disorders. Forty years later some questioned

whether the law that was memorialized

with the initials of their last names met

the challenge of the 21st century serious

mentally ill.

The name on the case file was Respon-

dent Margaret Onett. Judge Carlton saw

that Margaret Onett had been detained

by the Martinez police after she was

found by the bench, disheveled, scream-

ing obscenities and throwing gravel at

passersby whom she thought were try-

ing to steal her possessions. The records

explained that Margaret was the only

child of Joe Onett, a deceased Antioch

insurance broker and Christine Onett, a

music teacher. Joe had died a year before,

broken-hearted. Margaret did not attend

his funeral.

Contra Costa County’s petition for

the appoint ment of a conservator of a

gravely disabled person recited an eight-

year history of paranoid schizophrenia;

Meg withdrawing as a teenager, followed

by distrust and confusion, running away

from psychiatric intervention and ulti-

mately living on the streets of Martinez

and medicating with Haldol and Thorazine

prescribed by a psychiatrist at a county

clinic. In a rage she had destroyed her

room when Joe and Christine tried to

care for her. She rejected their help

and their love. After many out-of-control,

name-calling confrontations and threats

of harm to them, her anguished, worn-

out parents surrendered and lost touch.

Time was unforgiving.

Margaret Onett had been kept for 72

hours under a 5150 hold, and then re-

ceived 10 more days of intensive treatment

assigned to one of the 43 county hos pital

beds as a danger to herself because she

was unwilling to accept voluntary treat-

ment. Her mother, Christine, would not

indicate in writing her willing ness to pro-

vide help so that she might be appointed

conservator.

10

The mind is like a private library

with many alcoves where one can retreat

to recall experiences and create ideas.

Dopa mine is the neurotransmitter that

activates the brain’s receptors and lights

up the library. An abnormal imbalance of

dopamine results in an erratic chemical

messenger that may overwhelm a receptor’s

thought process. Margaret Onett could not

function without chemical block age of her

receptors with antipsychotic medication.

Public Defender Joyce Sawyer repre-

sented respondent Margaret Onett. Sawyer

reached the point in her career where

time passing flowed into time remaining

and took a leave from felony trials to

delve into the vortex of law intersecting

with medicine. She waived the right to a

jury trial, opting for a bench trial with

Judge Carlton because she understood

him from years of appearing before him.

Lawyers liked assignments to Depart-

ment 47, where justice was dispensed

fairly, efficiently, and with an under-

stated sense of compassion. County

counsel Louise Ramirez quickly put on

evidence that Margaret Onett was

gravely disabled under the Welfare and

Institutions Code. A county hospital

psychiatrist testified about the patient’s

medical history, mental status examina-

tion, prognosis, and the medical records

were received in evidence. The rhythm

of the case was interrupted by the

cherry wood courtroom door swinging

open to reveal an anxious Christine

Onett. A mother’s eyes locked onto

Meg, whom she had not seen in more

than three years. Margaret refused visits

from her mother when she was invol-

untarily hospitalized because her mind

convinced her that her parents were the

cause of her forced confinement and

threatened imposition of a life-control-

ling conser vator. Christine wanted to

hold Meg as she had at birth, hug her

as she had during grammar school days,

and embrace her as she did when Meg

was a troubled teenager and needed

someone to put wind beneath her fledg-

ling wings. Margaret looked away.

Skillful lawyers have a plan and pur-

pose and know the vulnerability of their

adversary like a leopard stalking its prey.

Joyce Sawyer was a leopard. She knew

the outcome of the case hinged on the

legal definition of gravely disabled: “a

condition in which a person as a result

of mental disorder is unable to provide

for her basic personal needs for food,

clothing, and shelter.” Joyce, with care-

fully crafted leading questions, cross-

examined the psychiatrist. No, he did

not know that Margaret Onett main-

tained a modest checking account at

Citibank on Main Street where each

month a direct deposit SSI payment

was received. No, he did not know

that St. Catherine’s Church, through its

Loaves and Fishes program, regularly

provided a basic food bag for Margaret or

that sympathetic vendors at Thursday’s

Farmers’ Market on Court Street gave

her fresh fruits and vegetables. No, he

did not know that Margaret sometimes

slept at the homeless shelter during severe

weather. No, he did not know she is a

resourceful camper, able to convert a

bench into a covered lean-to and owns a

sleeping bag that is certified for moun-

tain survival. No, he did not know

whether she would take her medication

if left on her own. The court reporter

struggled to keep up with Sawyer’s rapid

fire questions targeted at Margaret’s

ability to cope with her daily struggles.

Then Christine Onett testified about

the scourge of schizophrenia. Like waves

increasing in size, anger swelled up as

Margaret listened to the leopard cross-

examine her mother and coax admissions

from her. No, Christine did not know

how Meg had been living during the

past years. Yes, Meg is of above average

intelligence, and was an honor student

until the schizophrenia turned their lives

upside down. Meg had always been strong

willed and independent, and seemingly

able to care for herself except for her

psychotic episodes. Christine explained

that she loved Meg unconditionally

but felt helpless to deal with her con-

dition. As she walked from the witness

stand, a mother’s hand softly brushed a

daughter’s neck.

After the county counsel rested, Sawyer

called her only witness, Margaret Onett.

At the hospital, an aide had washed

and neatly trimmed Margaret’s hair

and Sawyer bought a pants suit for her

client that complemented her slim figure.

Margaret agreed to take her medication

in preparation for the trial. Haldol cleared

some of her hazy, bedeviling thoughts as

she slowly answered her lawyer’s ques-

tions. Speaking as if from a lifting fog,

she said she recognized that she was

different from other people. Sometimes

thoughts whispered through her mind

clouding reality. Because she was fearful

of uncertain persons who seemed to

menace her, she took special precautions

to protect her backside at all times. She

understood she functioned better when

she took her medicine that controlled

her swirling, mental marauders. While

carefully answering Sawyer’s questions,

Margaret began to feel a trans forming

cleansing of the resentment she harbored

against her parents. The inner recesses of

her mind recalled the words she used to

pray with her parents at church, “And

forgive us our trespasses as we forgive

those who trespass against us.” In the

first row, Christine listened with the

hope of an expectant parent and wept

inwardly as she listened to what had

become of her dream of 25 years ago.

11

After counsels’ final arguments, Judge

Carlton recessed to chambers where he

reviewed his notes, the medical records,

and prepared his decision. Judge Carlton

admired Justice Oliver Wendell Holmes,

Jr. who systematized the law as an editor

for the American Law Review in the

19th century. Holmes helped to transform

static, formalistic English law into an

American dynamic process built on

principles that provided predictability of

outcome. Judge Carlton tried to rely on

such legal principles to guide his decision-

making. As he thought about what had

just transpired in his courtroom, his

eyes fell onto the words of forgiveness

on his desk.

Before announcing whether to order

a conservatorship, Judge Carlton noted

that Margaret’s mother had not seen her

for a long time. He wondered aloud if

anyone wanted to say anything before

he explained his decision. A small ges-

ture can signal a momentous message.

Turning her downcast head to the side,

Margaret glanced behind her and looked

at her mother’s face. Judge Carlton

motioned to his bailiff to allow Christine

to come around the rail. She embraced

her daughter as only a loving parent

with a heavy heart can. No words were

exchanged, but a mother’s touch reverber-

ated throughout Meg’s body. Margaret’s

inner child was crying. And anger con-

fronted forgiveness and quiet forgiveness

prevailed as lives momentarily reconciled.

With her stomach churning, Joyce

Sawyer waited for the judge’s decision.

Judge Carlton then explained that the

law at times does not adequately protect

the mentally ill. Legal definitions imper-

fectly address a complex illness of the

inner workings of the mind with its one

hundred billion nerve cells. Trying to put

his decision in understandable words, he

said that Margaret Onett is presumed to

be not gravely disabled until the con-

trary has been shown; and that the

county as petitioner had the burden of

proving beyond a reasonable doubt that

she was gravely disabled, that she was

unable to provide for her basic personal

needs for food, clothing, and shelter.

Although he considered the historical

course of the mental illness, psychosis by

itself is not sufficient to justify a conser-

vatorship. Based on the evidence, Judge

Carlton was unable to find beyond a

reasonable doubt, with a personal abiding

conviction, that Ms. Onett was legally

gravely disabled and so he denied the

petition for a conservator.

With some misgivings, Joyce Sawyer

walked out of the courtroom clasping the

hand of her client. Mrs. Onett strained

to exchange words with Margaret, who

wanted to keep to herself. Margaret was

determined to face the world again on

her own terms. In front of the Bray

Building, they said a simple good-bye,

and Margaret — for a moment — felt

like Meg again, at peace with her family.

Margaret returned to the hospital, gath-

ered her medicine, clutched her bag of

belongings, fastened her backpack, and

headed down Alhambra Avenue toward

the path to the empty bench. JM

12

TheSecret

13

It clung to him and obsessed

him during quiet moments, interrupted

his thoughts while he struggled to write

a motion, and awakened him in a sweat

at night. The secret consumed his being.

John Derickson, a successful, 56-year-

old Walnut Creek criminal defense lawyer,

skilled from defending countless persons

accused of crimes against the People of the

State of California, reread Evidence Code

section 954 which governs confidential

communications between a lawyer and

client. He was duty bound to claim the

privilege unless disclosure was necessary

to prevent a criminal act likely to result

in death or substantial bodily harm. It was

the corner stone of the profession to which

he had dedicated his life, twice divorced

but never separated from his love of the

law. He recalled from his ethics course at

Hastings Law School that he must faith-

fully adhere to Business and Professions

Code section 6068 to maintain inviolate

the confidence and at every peril to him-

self preserve the secrets of his client.

Inviolate: free from violation, never

trans gressed, never broken — yet now a

secret confidence harbored an injustice

and tore at the core of his conscience.

Derickson’s secret sprung from con-

versations with a client and his review of

court transcripts. The obsessive secret fate-

fully began some years before in a Latino

area of Concord and involved two Mexi-

can cousins and a good luck medallion.

Juan Jesus Mejia, a five-foot-seven, quiet

27-year-old from a village in Zacatecas,

Mexico, worked as a gardener for any

landscaper who would give him work.

Each February for six years he had slipped

across the border near Mexicali into Cali-

fornia, made his way to Concord where

other Zacatecans lived and then returned

to his village in late November in time

to celebrate the December fiesta honoring

Our Lady of Guadalupe. During slow

times he waited patiently in the parking

lot of Home Depot hoping that some

Lamorinda patrón in his silver SUV

would need his strong back and rough

hands for renovating a backyard. Twenty-

five dollars of each hundred dollars he

earned was Western Unioned back home

to his mother and five brothers and sisters.

He lived in a one bedroom apartment in

the Monument corridor of Concord with

four other itinerant rent sharers who

slept in beds, on the floor, and on two old

couches. The neighborhood had become

a barrio with its tiendas, comidas de

Mexico shops, Latino music blaring from

car radios and young Latinas sashaying

their baby strollers down the sidewalk,

looking to make friends with other

young mothers who spoke their language

and understood their dreams and fears.

Jose Miguel Moreles was Juan Mejia’s

29-year-old cousin and roommate. His

nickname was “Lobo” because he seemed

to be a lone wolf, nervously on the prowl

for some action, usually dressed in black

with his longish hair protruding from a

black baseball hat. His upper left arm dis-

played the tattoo of a menacing wolf with

exaggerated teeth ready to devour any-

thing that came near. His right arm bore

a seven-inch long serpentine scar etched

from a vicious knife fight several months

earlier. His good luck gold medallion with

the Mexican symbol of the eagle eating

the serpent hung on a gold chain around

his neck, hidden under his shirt. The Aztec

gods directed the building of Tenochtitlan/

Mexico City on land in the middle of Lake

Texcoco where an eagle on a cactus was

seen devouring a serpent. It was a place

of good luck, now memorialized in gold

medallions. Only Jose Moreles knew about

this 18-karat last refuge — his good luck

charm in case he ever ran out of money.

Moreles drank more than he should

have and learned firsthand about the

American delicacy of methamphetamine

that heightened his senses and electrified

his reflexes. He was a muscular five-foot-

eight, 175-pound figure, bitter about his

dead-end existence in Norte America.

Tecate beer and meth helped him forget his

plight. He was jealous of Mejia who found

work readily and made friends easily.

On the last week of November, Juan

Mejia alone in the apartment eagerly

planned his return to Mexico. Lobo had

not paid his share of the rent for six

weeks. Work was slow for everyone and

other newly arrived Zacatecans arrived

with enough money to pay a share of the

rent. Lobo was looking at eviction to the

streets where homeless shelters did not

exist for people like him. After fortifying

himself with some meth he won from a

bet, he put on Mejia’s black hooded

sweat shirt and walked the two miles to

Park & Shop Shopping Center with its

elongated neon light seductively beckon-

ing shoppers. It was 9:00pm. Most of the

stores were closing and the parking lots

were practically empty. Lobo would make

his own luck. He hid in the shadows of

the employee back parking lot, where

one car was parked off by itself.

At 9:15pm Janet Bronson, a sales

clerk at the discount clothes boutique,

walked quickly to the car, her mind

occupied on picking up her three-year-

old from her babysitting aunt. As she

opened the car door, a pair of strong

arms suddenly grabbed her from behind,

one hand muffled her mouth and the

other pushed a sharp gardener’s knife

against her throat. In an accented voice

the assailant told her to keep quiet and

shoved her into the back seat as Ms.

Bronson fought against him. She momen-

tarily glimpsed at his face under his black

14

hood and in the struggle grabbed at his

gold necklace. She saw a large tattoo on

the assailant’s arm. A terrified scream

became her only defense as her finger-

nails dug into Lobo’s arm and drew

blood. Lobo panicked, viciously slashed

his victim on the face with the knife,

grabbed her purse and her cell phone,

fled down a back alley, and ran until

safely back to the apartment. This was his

lucky night. The wallet in the purse con-

tained $141.24, enough money to buy

time for his rent, to buy speed, to buy

whatever. He buried the cell phone that

had a spot of his blood by the apartment.

Hearing the screams from around the

corner of the parking lot, a passerby

called 911. The Concord police tried

to comfort an hysterical Ms. Bronson,

obtained some information, and took

her to Mt. Diablo Hospital for medical

treatment. She told a female officer and

the surgeon about the knife and the

necklace. A few days later, a police artist

drew a composite sketch of the suspect

with the medallion dangling outside a

black sweatshirt. Copies of the drawing

were distributed to patrol officers and to

the press. In the meantime, criminalists

checked the Bronson car for fingerprints,

hair, and fiber evidence. A few hairs that

might have come from the hooded

sweatshirt were retrieved and carefully

placed in a plastic evidence bag.

Two days later, Lobo did not know

why he happened to see the Contra Costa Times on a fast-food counter, opened to

page 3 with the drawing of a Latino

suspect with a gold medallion staring at

him. It was like looking into a slightly

distorted mirror. He hurried back to the

apartment where some new renters were

unloading their belongings. Desperate

for money and a way out, he decided to

part with his last refuge. He took Juan

Mejia outside and offered to sell the

prized gold medallion. Mejia planned to

leave for Mexico the next day. Mejia had

never seen such finely crafted, golden

figures and bargained to $225. The deal

was struck. Lobo moved out that day and

headed to East Oakland where he could

lose himself in the Latino community.

That night, Juan Mejia celebrated

his imminent return home with a few

friends at a local cantina. He proudly

wore the distinctive medallion against a

black shirt and reveled in the compliments

he received. His good luck was short-

lived. As he walked down Monument

Boulevard with the medallion glistening

under the street lights, a Concord police

patrol car passed by, slowed, and the officer

fixed his eyes on the necklace and medal-

lion. The consensual stop turned into a

detention, and then an arrest. At the

police station, he struggled to explain in

poor English how he obtained the neck-

lace. The interrogating officer noted a

small tattoo on the suspect’s arm and

arranged for a photo lineup. Ms. Bronson

picked out Mejia’s photo from photos of

five Latin-looking men and was “pretty sure” that Mejia was the one who attacked

her. And she would never forget that

haunting gold medallion. Officers served

a search warrant for items in the apart-

ment and found a black hoodie and a

gardener’s knife. A microscopic exami-

nation of a hair strand found on the

night of the assault matched a strand of

Mejia’s hair taken at the station. Mejia’s

cousin was nowhere to be found.

The trial was swift and unremarkable,

lasting only three days in Department 47

of the Bray Building. A scared defendant

Mejia testified and tried to explain why he

was innocent. He was alone at the apart-

ment at the time of the attack. No one

provided an alibi. Eyewitness identifica-

tion, forensic hair evidence, a similar knife,

and the medallion doomed the defendant.

The public defender’s investigator was

unable to find anyone at the apartment

who knew where Lobo was. At sentenc-

ing, the penal code sections meant little

to Mejia, but he did understand Judge

Raymond Carlton intoning the aggregate

term of 12 years in state prison for assault,

robbery, personal infliction of great bodily

injury, use of a deadly weapon.

Moreles learned about the sentence, was

relieved and pleased that the cousin whom

he disliked was his proxy at Soledad State

Prison. He eagerly turned to his new ven-

ture in the East Bay, distributing mari juana

and methamphetamine smuggled from

Mexico. Two years later, a joint DOJ and

DEA enforcement team stopped Lobo’s

van, uncovering enough illegal sub stances

to warrant a 25-year federal prison sen-

tence. Fate befell John Derickson. Because

of a conflict of interest among the defen-

dants charged in federal court, John

Derickson, who spoke some Spanish, was

appointed to represent Moreles. Derickson

knew the ambitious U.S. Attorney and

recognized the favorable publicity fallout

that this huge drug bust could provide.

He helped transform Lobo into a valuable,

voluble source of information, naming

names, routes, and safe houses. For ser-

vices rendered, Lobo would receive a

reduced five-year sentence to a pro-

tected section of a prison and then ICE

would return him to Mexico after he

served his time.

Most clients found John Derickson easy

to talk to. In a prison conference room,

Lobo and Derickson shared strategy,

information, and discussed Lobo’s future.

That’s when Lobo with a smirk on his face

unleashed a torrent of Mexican obscenities

about Mejia and blurted out: “5 years

was less than 12 years.” Then he told

Derickson about his attack on some

woman in Concord, how he escaped, and

how his cousin was mistaken for him and

15

convicted of his crime. He laughed as he

described what he thought Mejia’s daily

life in prison was like. Derickson could

not believe what he was hearing. Lobo

went into detail how he committed the

crime, described the car, the woman, his

knife, her struggle, and his fortuitous sale

of the medallion to Mejia. The disclosure

was a mock confession to his priest,

and this priest could not reveal what he

learned. It was their inviolate secret.

John Derickson asked a clerk at the

First District Court of Appeal to retrieve

People v. Juan Jesus Mejia from the court’s

storage. As he read the reporter’s tran-

script, he found every detail described

by Lobo in the stark pages. Lobo had

described the car, the back parking lot, his

attack on Bronson and slashing her face,

just how the victim recounted to the

jury what happened to her — but about

the wrong defendant. Derickson went to

the Monument Boulevard apartment and

in a side yard found Bronson’s cell phone

buried by an old almond tree exactly

where Moreles said he had disposed of

it. So now, like the piercing needles of a

Sonoran cactus, the secret clung to him.

Lobo went to federal prison, where a

La Eme gang member befriended him.

Derickson met with Moreles twice in

prison and urged him to reveal his role in

the robbery. Moreles listened, smiled, and

said he would think about it tomorrow.

Tomorrow faded into the next mañana.

Meanwhile, Mejia’s appeals failed. He

felt trapped in a cave never to be found

and gave up hope in Soledad; “Soledad”

Spanish for loneliness, that had turned

into despair. And the secret continued to

hound and torment Derickson.

Months later Judge Raymond Carlton

greeted John Derickson in Department

47’s chambers at 5:00pm, after the court

staff went home. Judge Carlton, close to

retirement, had presided over several of

Derickson’s trials and was regarded as a

legal scholar. They respected each other

like one accomplished artist might admire

the work of another. Derickson knew that

he could not disclose his secret but needed

someone to talk to, needed advice from

someone he could trust — from the judge

who sentenced Mejia.

Derickson described in general terms

his ethical problem to Judge Carlton,

who listened intently. What can a lawyer

do if he has attorney/client information

that an innocent defendant was wrongly

convicted; how could State Bar discipline

be avoided? Judge Carlton saw the tor-

tured look in Derickson’s face and felt

the turmoil in his mind. Like problem

solvers searching for a solution to a com-

plex theorem, they discussed exceptions

— lawful ways around the rule that pre-

vents a lawyer from revealing a client’s

confidential communications. Derickson

listened and knew none were applicable

to his secret. Judge Carlton adjusted his

bow tie and advised that The Restatement

of Law, “The Law Governing Lawyers,”

states that a lawyer must maintain and

assert the privilege at all times even after

the client has died. The secret would sur-

vive Moreles’ death, like an indestruct ible

monster from a horror movie. Judge

Carlton, however, also recalled Thomas

Aquinas’ teaching on the primacy of

conscience and tried to explain that

guiding principle to Derickson. In deter-

mining what is morally right to do, one

may act in accor dance with what a well-

informed conscience tells him to do

even if it is contrary to written law. The

often blurred line between what one can

do and ought to do is seen through a

glass darkly. He gave Derickson the

names of several professors of ethics with

whom he might consult. A disconsolate

Derickson left Judge Carlton’s chambers.

During the night as he tried to sleep, he

felt like his soul was tumbling down into

the depths of darkness.

But fate was not finished. Lobo’s luck

ended abruptly. His La Eme amigo learned

that Moreles earned the right to special

treatment at the prison as a government

informant. The Mexican prison gang con-

vened. Jose Miguel Moreles, aka El Lobo,

was found dead in a remote corner of

the recreation yard, a bloody, cell-made

shiv protruding from his upper chest.

Derickson arranged for his client’s burial.

A few days later, John Derickson, after

a turbulent, sleepless night, tore up his

State Bar membership card and drove to

Soledad Prison to meet with Juan Mejia.

A month later, Judge Carlton’s clerk

handed him a Petition for a Writ of Habeas

Corpus requesting a hearing for the illegal

imprisonment of Petitioner Juan Jesus

Mejia, CDC #199982, Soledad State

Prison. The petition, filed by assistant

public defender Joyce Sawyer, was sup-

ported by the meticulous declaration of

John Derickson, detailing what he had

learned from Moreles. Derickson included

a photograph of the cell phone in the

exposed hole. Now understanding what

was behind his recent conference with

Derickson and seeing how justice works

in mysterious ways, Judge Carlton dis-

qualified himself. The case was reassigned

to Judge Laura Estrada, who ordered a

hearing. A roommate of Mejia testified

about Lobo’s selling the necklace to

Mejia. Ms. Bronson agreed a photograph

of Moreles looked more like her assailant

than Mejia did. A DNA test on the spot

of blood on the cell phone matched Jose

Moreles’. John Derickson testified. Judge

Estrada took the matter under submission.

That night was unlike past nights.

Derickson thought about the medallion,

Judge Carlton’s remarks about conscience,

fell asleep unburdened, and slept through

the darkness. JM

16

Déja Vu

17

Loss of hope plunges the possi-

bilities of tomorrow into a mirage. On a

spring day in 2008, Judge Raymond

Carlton, now close to retirement, thought

about the absence of hope as he presided

over the jury trial of People v. Sonny Campo, CR09236, in Department 47 of the Bray

Building in Martinez — Sonny Anthony

Campo, the déjà vu defendant whom the

jurist remembered.

Sonny Campo had been convicted

of robbery from a Wells Fargo Bank in

2000. Because of a prior strike offense,

he was sentenced to eight years in state

prison where he was one of 158,000

prisoners within the California Depart-

ment of Corrections. Sonny was 42 years

old then, and had never held a steady job

since coming out of foster care at age 18

without a GED. He barely remembered

the life-changing altercation years ago out-

side of the College Lane Bar in Martinez

when a ponytailed, tattooed dude with

whom he had been jawing, crushed his

head with a glass beer bottle. The neuro-

surgeon at Merrithew County Hospital

said the blow fractured a portion of his

skull, damaged the temporal lobe and

affected his amygdala. His memory was

never the same and he responded inappro-

priately to stressful situations. He applied

for SSI payments, but never followed

through on finalizing his application.

Jobs were scarce for him. His sister, local

churches, and non profits helped him to

survive. Hope did not spring eternal for

Sonny Campo.

Sonny’s legal troubles involving Judge

Carlton first began on a nondescript

Wednesday morning in June of 1999.

Sonny found himself out of money, food,

and hope. Wearing a black overcoat on

a hot day, he shuffled into the Concord

Wells Fargo Bank on Willow Pass Road

by Todos Santos Plaza. He waited until

no other customers were in the bank,

hurried to teller Teresa Redding, and

shoved a crumpled note and a shopping

bag onto the counter. The note said:

“Give me mony (sic), I have a bom (sic)

in my poket (sic). The plan was simple

— grab the money, race three blocks to

Clayton Road, and escape on BART in any

direction. Ms. Redding said she could not

read the scribbling and asked a per-

spiring Campo what he wanted. When he

mumbled “money, bomb,” she understood

and nervously reached into a drawer

where marked, explosive dye money was

kept in case of a bank robbery. She put

the money in the bag, including a dye

pack. Campo grabbed the bag and raced

out. Ms. Redding hit the alarm button

and the teller next to her called 911.

Concord Police Officer Jack Strout, who

happened to be on foot patrol across the

street in Todos Santos City Park, received

a dispatch call about the robbery and a

description of the perpetrator. He saw

black-coated Campo a block away walk-

ing hurriedly toward Clayton Road. Strout

easily caught up with Campo, stopped

him, and arrested him as the money

bag billowed a small red cloud from the

chemical reaction of dye.

Public defender Joyce Sawyer nego-

tiated a plea bargain with the district

attorney, who was initially seeking a 12-

year sentence due to Campo’s record of

past failed probations and a burglary strike

when he was caught in a garage steal-

ing a bicycle. Judge Carlton accepted

the plea and sentenced Sonny Campo to

eight years in state prison on December

23, 2000.

Campo spent the next seven Christ-

mases in three different state prisons,

finally residing at Salinas Valley State

Prison, one of 4500 inmates in a facility

built to house 2200. Each day was the

twin of yesterday: inmate Campo rising

at 6:15am, breakfast from 6:45 to 7:30,

work detail, lunch, yard exercise, return

to work, dinner, some TV, and lights out

at 10:00pm. Campo became accustomed

to the pungent smells and adjusted to

the dense living and cacophonous noises

emanating from the cellblock. Few in

this penal warehouse seemed concerned

about his rehabilitation. He sporadically

attended some self improvement pro-

grams and worked in the laundry room,

doing the same assignment every day.

He folded bed sheets and neatly loaded

them onto a cart, hundreds every day,

stacked like choreographed shrouds

always lying in the same perfect posi-

tion. By the time of his parole two days

after Christmas in 2007, Sonny Campo’s

circadian rhythms were so programmed

that he awoke daily at 6:14am — just

before the wake-up alarm — and he

navigated through the day as if on auto-

matic pilot. At exactly the same time

each day he took his meals and fell asleep

by 10:15 each night. His inner clock was

as precise as a Swiss timepiece. As he

withdrew into the unvaried routine in

his prison world, he developed a sense of

relief in not having to make decisions

about his daily life since he did not have

to decide what to do next, where to eat,

what to eat, or where he would work.

Repetition was its own reward. Campo

had lost his existential identity.

Once on the outside in 2008 —

homesless and jobless — he could not

deal with the changes of the new millen-

nium and became one of the faceless state

unemployment statistics. His sister was

unable to provide him with help. Like

a stray with no permanent place to

live, he moved from homeless shelter to

home less shelter. After three months of

hopeless living, barely surviving on food

18

stamps and handouts from church food

pantries, he looked back at his prison

life with nostalgia and made plans for

tomorrow.

So now Judge Carlton listened atten-

tively in Department 47 as the evidence

unfolded before the jury. Public defender

Joyce Sawyer again was assigned to repre-

sent Sonny Campo. She was a veteran of

courtroom wars where she capably resisted

the onslaughts of prosecutors. Her client

could not bring himself to plea bargain

when the case came to trial even though

he was facing a three-strikes, 25-years-

to-life sentence. Drawing on 28 years

of defending accused persons, Sawyer

studied the contradictions in Campo’s

life and crafted a unique defense.

Prosecution witnesses explained in

Depart ment 47 how Sonny Campo re-

turned to the same Wells Fargo Bank in

Concord, coincidentally presenting a note

to the same teller, Teresa Redding, who

gave him a dye-packed bundle of $20’s.

He walked out, headed to the BART

station where, without any resistance, he

was apprehended by Concord police

officers. Like a battlefield tactician who

allows the enemy to come to her, Sawyer

allowed the facts to develop with little

cross-examination except to accentuate

the similarities between the two crimes

and the markedly similar ineptitude.

In defense, she called psychologist

Dr. Jonas Bergstrom, an expert on the

“institutionalization syndrome.” In a

com pelling, understandable manner, Dr.

Bergstrom explained that Sonny Campo

had developed a dependence on life in

an institutional setting, resulting in de-

personalization so that he was unable to

cope with the demands of everyday living.

And so he committed the crime, not

with a plan to keep the bank’s money,

but with the hope of getting caught so

that he might return to prison life. Dr.

Bergstrom also explained the results of a

battery of psychological tests that showed

a profoundly impaired personality caused

in part by Campo’s brain injury.

Sawyer delivered an eloquent closing

argument as she described a desperate,

hopeless man, conditioned to life in

prison, who did not intend to perma-

nently deprive Wells Fargo of its money.

Robbery required the specific intent to

permanently deprive the owner of prop-

erty. But Campo’s intent was to stage a

robbery, temporarily take the money and

get caught; the money would be returned

and he would return to prison. It was all

a déjà vu charade. Judge Carlton listened

and thought this Kafkaesque character

had a win-win situation. If the jury

bought the argument, Sonny Campo

would be found not guilty of robbery. If

not, he would realize his hope to return

to prison life. As he sent the jury out

to do justice in their deliberations, the

judge reflected on hope revived and

wondered about Sonny’s tomorrow:

would Sonny Campo be found guilty

of robbery or guilty of an inability to

survive on the streets of Contra Costa

County? JM

19