#2015 "How do you define a gang member

[remembertheplunge]

A Christmas Eve Miracle

12/24/2023I can’t recall if I have blogged this story before or not. But, being that it’s Christmas Eve, I thought it would be worth writing up and publishing here today.

A Christmas Eve Miracle happened Christmas Eve 2015, eight years ago.

Since my first years of criminal law practice up until about 2019, I would act now and them as pro term judge in traffic court, meaning, I would fill in for the actual judge.

Christmas Eve 2015, I did this out in traffic court on Floyd Ave in Modesto, California.

The afternoon session ended at about 2:30pm . At the stop light at Oakdale Road and Floyd, I looked out about 2 miles to the north west to see intense black low clouds. They seemed to be in the area where two significant events in my life had taken place.

I was in a grocery story there when the Loma Prieta earth quake hit at 5:04pm. October 17, 1989. The store floor began to have a rolling motion and things fell from the shelves. I thought the roof was going to give.  And in 2013 a man was killed in front of some apartments behind the store. I would be appointed to represent Lisandro Mendosa, one of 5 codefendants charged with a gang related murder of the man. A 6 month jury trial resulted in a hung jury and a New York Times article about the trial, “”How do you define a gang member?   New York Times Sunday Magazine 5/27/2015. The trial was long and emotionally violent.

I continued my drive down Floyd Ave toward home. I decided to stop at the Star Bucks for a hot chocolate at Coffee road and Floyd. It sits across Coffee Road and a parking lot from the store I was in during the 89 quake. Just beyond and behind the store is where the man was killed resulting in the Mendoza trial.

Before entering Starbucks, I stood about 40 feet from Coffee Road and leaned my head back. Fine mist was falling now . I closed my eyes, felt the mist on my face and sent a healing prayer out across the store and the seen of the killing beyond it. 

Just then, unbeknownst to me,  about a mile west on Coffee road, a  storm related microburst caused a tree to to fall into telephone wires causing 50 foot tall telephone poles to one by one collapse into Coffee Road headed in my direction.

I finished my prayer, unaware of the collapsing poles, and walked 17 seconds to the Star Bucks. Inside , the power was out and there was a general sense of panic . The staff locked the door and wouldn’t let us out. Starbucks had no windows facing Floyd or Coffee Road, so we couldn’t see that the pole 40 feet from where I said the prayer had collapsed into the street as well the one just beyond  that I had just driven by.

Despite the fact it was Christmas Eve afternoon, and that Coffee Road is a busy four lane road, no one was hurt or killed inn the mile long collapse of polls and live wires into the road.

We had been told during the Mendosa jury trial that the trial had been cursed by people in Vera Cruz, Mexico. The man who was killed was hispanic. Not sure who placed the curse or why.

I drove to the jail after leaving Starbucks to meet with Mr. Mendosa who was incarcerated there.

I told him about the telephone pole incident and asked him if he thought it was as a result of the curse. He said he didn’t thinks so. He said he thought it was a sign he would get a break in the case. He did. In 2016, he received a 16 year sentence instead of life in prison via a negotiated plea. Recently, due to a change in sentencing laws, he was re sentenced and released!

[remembertheplunge]

4/10/2023. 

Today, I showed up for jury duty today. Had to be there  in the jury assembly room.at 1:15pm. This was in the Superior Court House in Stanislaus County, Modesto, California.  I’m a criminal defense attorney. I first came to Stanislaus County in 1984. Since then, I have had many jury trials in that court house. I have also Been a potential juror several times. But, I’m always excused because I am a defense lawyer. Still, being a part of the jury selection process is a great education for me. I get to see how it feels to be a potential juror. I notice my reaction when, in a criminal case, I first see the person accused of a crime or crimes. And, I study how I first feel when the judge tells us what the person is charged with. 

The accused man today was a 30 something well dressed handsome African American man. I looked at my fellow jurors to see how many were African American. Only 2.  Highly likely it  will be hard  for the accused to get a to get a fair trial based on race. There were four armed police officers in the court room. 3 male. One female. The were positioned in close proximity to the accused. This could send a message to potential jurors that the accused was a dangerous man. Another reason the accused would have trouble getting a fair trial.

Then the judge read the charges. Vehicle Code 2800.2(a) Flight from Police.  I thought “ Why didn’t this case settle? What are the accused man's defenses. A very low intensity charge.”

And then the judge began to ask the first 18 people selected if they could be fair. There were about 80 of us called up for jury duty to Department 6. A kind of alchemy occurred as the potential jurors began to answer. The room converted from a court room into a collective report card on humanity. A kind of a litmus test of where, we as a people and as a society, stand now.

One woman said that her son or brother, someone close to her, had been involved in a high speed chase in Oakland resulting in the police shooting and killing him. “And, today is his birthday” she said as her eyes welled with tears.  I was overwhelmed by the woman’s powerful delivery and by her compassionate indictment of law enforcement. Another woman said “Another  court found my son guilty and gave him life. The verdict was overturned by an appeals court . I don’t believe in the system. I can’t be fair.  A man, probably in his 50’s, said that when he was 17 he had been beaten by the police. He could not be fair in a case where police would testify.

At this point, the defense attorney asked for a meeting with the judge and the DA outside the presence of the potential jurors. We were sent back to the jury assembly room. After some time, we were told that the case in Department 6 had settled. 

I’m not sure why it settled. But, I can’t help believing that the testament of those 3 potential jurors in this era of George Floyd and the many others killed wrongfully by police didn’t have something to do with it. Especially since the accused man in department 6 was a young black man.

End of entry

Note: the phrase “Report card on humanity “ comes from the movie “Snowfall on the Cedars." In the movie, a defense lawyer begins his closing argument by telling the jurors that every once in a while a group of 12 people, the jury, are asked to give a report card on humanity”. I quoted this line in a closing argument in a co defendant gang murder case I was in from August 4, 2014 to January 28, 2015. There were 4 other defense lawyers who gave closing arguments in that case. So, I can’t take full credit for the hung jury that resulted. The case ended up on about May 25, 2015 as a 17 page story in the Sunday magazine in the New York Times! You can still google that article at New York Times Magazine: "How do you define a gang member? Jesse De La Cruz."

Continued to April 18, 2023 post