The truth is a chain, one end 'round your neck and the other 'round your sins

>> Monday, February 10, 2014

I'm so mad at Emily Bazelon right now, I could chew through a railroad spike.

She has a longform piece up in Slate this week about Patricia Esparza, "Who Killed Gonzalo Ramirez?"  There's the link, though I can't decide if it's worth reading or not.  The story, in a nutshell, is a tawdry and horrific one: in the mid-1990s, while still a college student, Dr. Esparza had some kind of alleged involvement in the torture and homicide of Gonzalo Ramirez; Dr. Esparza says that Ramirez raped her, and that when she told her then-boyfriend about this, her then-boyfriend and several of his associates staged a traffic accident with a vehicle Ramirez was in, abducted Ramirez from the scene of the collision, and then took Ramirez to his friends' auto shop, where Ramirez was chained up and beaten to death.  Gods only know what to make of the whole affair, whether it's just deserts for a sexual predator, a lesson in the horrors of vigilantism, or some other scenario occurred that will be revealed when the state of California makes its case-in-chief against the various codefendants, including Dr. Esparza, who have pleaded not guilty.

I'm not angry at Bazelon for her credulous acceptance of Dr. Esparza's side of things; for all I know, Dr. Esparza's account is absolutely true and accurate.  If things are the way they've been framed by Bazelon, it's not completely clear to me that Dr. Esparza committed a crime, unless she obstructed justice during her initial interviews with police.  I feel somewhat obligated to qualify all of this, however, because it does strike me as possible that there's some evidence against Dr. Esparza--perhaps the statement of a codefendant who's pleaded guilty to a reduced charge of manslaughter in exchange for truthful testimony, for instance--that might put Dr. Esparza into a more culpable position; much more depends on what she knew and when she knew it, I think, than upon what she did or didn't tell police.

Which gets to the heart of why I'm pissed at Ms. Bazelon.

You see, at some point in the saga, Dr. Esparza apparently got some incredibly good legal advice from a now-deceased attorney who she consulted several times, first for assistance in getting a divorce from one of her codefendants--

Dammit.  I suppose I need to explain: Dr. Esparza ended up marrying one of her now-codefendants in an attempt to invoke spousal privilege (which leaves one wondering if she knew more about Ramirez's death than she has let on).  Nevermind.  The important thing is that she apparently never had more than a sham marriage with this alleged co-conspirator, but she ended up falling in love with someone else and needing a divorce.  The man who wanted to be her fiancee put her in touch with the legendary Leonard Weinglass--which is, like, damn.  Most people would be lucky if their fiancee could put them in touch with the geezer who kept their grandma's will current, and Dr. Esparza's beau puts her in touch with the man who won cases for lefty causes célèbre like Daniel Ellsberg and Angela Davis, among others.

Here's how I know Weinglass was a good lawyer, aside from his CV: Dr. Esparza talks to Weinglass about why she wants her divorce, and Weinglass tells Esparza's future husband, "she’s right, it’s better for you not to know."  Which is exactly right and proper.  Dr. Esparza's situation is exactly why attorney-client privilege is a thing: "I need to end my sham marriage that I got into because my current husband was involved in the brutal unsolved slaying of a dude in California."  This really isn't something your new future husband needs to know about, seeing how mucked and muddled spousal privilege really is in the jurisdictions where it's even recognized.  This is the lawyer saying, "We talked about it, and I can't talk about it and she shouldn't talk about it, 'nuff said."

Anyway, that wasn't the last time Dr. Esparza spoke to Weinglass.  Bazelon writes (and I hope this will make enough sense; if not, you just need to go read the whole article):
 In 2010, a pair of new Santa Ana detectives, Dean Fulcher and Frank Fajardo, launched a new chapter in the investigation of Ramirez’s murder. When I emailed Fajardo to ask why, he put me in touch with the public affairs officer for the Orange County Police, who would only say the police had "new leads" at the time. But I can’t find any new evidence from that moment in the record. Maybe Fulcher and Fajardo were just interested in this old case. They did know that Esparza and Van had divorced, and that she no longer had a marital privilege to assert if she wanted to avoid testifying. Fajardo found her online and emailed her in September 2010: "I merely wish to speak with you regarding the incident, which occurred in 1995,” he wrote after introducing himself. “I hope you believe me when I tell you that you are NOT a person of interest NOR ARE YOU A SUSPECT in this case. ... You hold vital pieces of this puzzle and I hope you choose to help me." (The bolding is his.)

Esparza sent the detective’s message to Weinglass, who offered to talk to Fajardo on her behalf. After that conversation, Weinglass emailed Esparza counseling caution about talking herself to the police. Fajardo, he said, seemed interested in information she had already given the police in 1995 and 1996—specifically, about what she had told Van about Ramirez. "My impression is that they're not being totally honest with us and that this could become a kind of cat and mouse game where they're seeking more than they let on," Weinglass wrote.

Weinglass didn’t try to make a deal for Esparza—like immunity from prosecution in exchange for her full story of the events leading up to the murder. Instead, he wrote back to Fajardo saying that Esparza had already provided the police the information they now sought. "Hopefully, this answers your question and no further effort will be necessary to have her repeat what she has already twice said before," Weinglass wrote. "As you can well imagine recalling these events is very stressful to her. She is now a married woman, a mother, a professor and a resident of Europe. There is no intention here to impede your investigation; but, as you may well imagine, it's my obligation as her attorney to curtail any unnecessary intrusions into her new life." Weinglass died a few months later. Mancillas, meanwhile, says that while he knew the police wanted to talk to Esparza, she and Weinglass still wouldn’t tell him why. In hindsight, it's hard to believe or understand—for Mancillas, too. "In retrospect, now that I know the whole story, I think, how could I have not pushed?" he says. "I feel terribly guilty." But he trusted Weinglass, and the police inquiry coincided with a difficult period for him at work. "I was pulled by external demands," Mancillas told me, his voice breaking. Later, he emailed, "As I looked back at the last few years, I have just been unable to put aside that most corrosive of thoughts: what if?"

Gods bless you, Mr. Weinglass, wherever you are tonight.  Bazelon goes on to characterize Weinglass' advice as "bad", several times and repeatedly, and this is why we must be glad that Ms. Bazelon took her law degree into journalism instead of into the sordid trenches of the law.

So, let's see, where to begin unpacking the quoted passage?

First of all, we may safely presume Detectives Fulcher and Fajardo were lying to Dr. Esparza.  Because this is what cops do; indeed, the quoted e-mail is textbook Cops Lying To Perps 101: claim that the person being investigated isn't a "suspect" or "person of interest"?  Check.  Pleading for "help," claiming to the suspect that she's merely needed to "fill in puzzle pieces" or "shed some light" or some such happy horseshit?  Check.  "Trust me, I'm your friend"?  Check.  "You're the only person who can help (even though we're talking to twenty-eight other people already)"?  Check.  This is the same line of crap they've fed to almost every confessing defendant I've represented over the past sixteen years and change.  I feel like I could probably quote the e-mail Bazelon happily cites verbatim, sight unseen.  (The boldface is a nice touch: it makes up for the inability to lean in confidingly or to give a reassuring smile, eh?)

People, I think I've said this before, let me say it again: if the police are talking to you, you're a person of interest.  If they weren't interested, they wouldn't be talking to you.  The police assume you're as suspect until they've picked someone "likelier".

The first rule of talking to the cops is, you don't talk to the cops.  The second rule of talking to the cops is, what are you, some kind of fucking moron?  Seriously?  A more polite way to put that is something I often tell clients: you never lie to the police, because that will cause you worlds of harm, but you never tell them the truth, either.  And if you aren't going to lie and you aren't going to tell them the truth, what is it you're going to say?  Exactly.

Now, there is one thing you can say to the cops: "Talk to my lawyer."  Which, to her credit (though a little belatedly, having already run her mouth back in the mid-'90s when she first came to the cops' attention), is what Dr. Esparza did.  And Weinglass--I want to hug this man.  I want to go to the cemetery in Chicago, if that's where he's buried, and go to his grave and fall down on the ground and hug the ground where he's interred--Weinglass talks to the cops, and--since he isn't a complete idiot, and is indeed a veteran defense attorney who, for instance, got Daniel Ellsberg's charges of leaking government documents all dismissed even though Ellsberg was guilty as fuck (granted, the Nixon Administration's criminal conduct towards Ellsberg was a huge help), Weinglass smells the rat.  "Hey, yeah, they're screwing with you, keep your mouth shut, kiddo."

Which they are.  The cops.  Screwing with you.  They're looking for inconsistencies in your prior statements, that they can use to rope you into a confession or that they can turn over to the State so that whole "anything you say can and will be used against you" bit can come into play, impeaching you if you choose to testify, so the State can call you a big fat liar.  (Don't think those statements are coming into evidence?  Ms. Bazelon might want to reacquaint herself with the rules of evidence applying to prior inconsistent statements: that shit's admissible, baby.  (In most states, such admissibility is supposedly confined to impeachment purposes, although some quick surfing suggests California may allow prior inconsistent statements to be introduced during cross-examination for substantive purposes: anyone with a Cali law license who wants to opine on that in the comments, please do.  But let's be honest: even in states where prior inconsistent statements are only allowable for impeachment purposes, everybody knows that a jury, even when instructed that a prior statement is allowed for limited purposes, is going to take the prior statement at face value.))

I gotta tell you, Weinglass did a beautiful thing, next: he apparently phrased the kiss-off letter to the police so that his client's refusal to cooperate was entirely about her having moved on and himself being a cautious prick: "Go read your notes you already took, jagoff," he smoothly says.  "Stop bugging my client, who's a mom and a white collar professional and who you're not going to be able to hassle anyway unless you figure out extradition paperwork, asshole.  But don't get mad at her, P.S., because she's just doing what I'm telling her to do like we cocksucking bottom feeders like to do because we're difficult."  Did I say I could kiss this man?  I could kiss this man.  I tell my clients all the time, don't talk to the cops, tell them to talk to me, and make me the asshole, because that's my job.  "Gosh, officer, I'd really like to help, but my attorney is a total dick and he said I can't.  You'll need to go to him."  Bingo: you're cooperative and completely useless, exactly like you should be when you're a criminal suspect, which you are, because, duh, a cop is talking to you.

Bazelon makes something of Weinglass not securing some kind of nebulous deal for his unindicted client.  Like, um, what?  I don't see a prosecutor offering immunity unless he knows what he's getting, and he doesn't know what he's getting because, remember, we don't talk to cops.  Plus, that's kind of a fucked dance to get into: "My client doesn't know anything she didn't already tell you, so stop hassling her, but if you promise she isn't really going to prison, maybe she'll tell you the other stuff she doesn't know and you're supposed to stop hassling her over."  Really?  I've got a better idea: instead of making a deal where my client probably gets screwed in the end, how about she stays in Europe and the DA's office goes and does something anatomically improbable that's illegal everywhere except certain parts of Thailand?

Dammit, the only thing Weinglass did wrong was dying, and I doubt he did that on purpose.  Wikipedia says his pancreas went feral and ate him, which is a helluva horrible way to go and not on anyone's top ten list of ways to kick off.  I hope he exited gently.

Meanwhile the worst thing Bazelon has ever written in her career might be this paragraph in her summation:

Maybe Esparza is a figure of so much suspicion because it’s hard to square the 20-year-old she says she was—a young woman whose judgment was obliterated by fear—with the 39-year-old articulate professional she has become. Esparza is not always her own best advocate on this front. If she’d come clean in 2010, based on better legal counsel, and tried to right this old wrong from her past by telling the police the whole truth, she might have spared herself the ordeal of her arrest and prosecution. And by emphasizing the degree to which she has been a victim, she sometimes seems to lose sight of the greater magnitude of Ramirez’s suffering and death.

Feckin' hell, seriously?  She's not her own best advocate, so she ought to have spilled her guts to people whose job it is to send murderers and accessories to murderers to prison for a very long time?  Bazelon feels noble sympathy for Dr. Esparza, and for all I know it's well-placed: it may well be that Gonzalo Ramirez was a son-of-a-bitch who had it coming and Dr. Esparza no more than Ramirez's victim who played a small and should-have-been-innocent part in what happened to him.  (I'm not a fan of vigilante justice, nor of the death penalty for anything, but the world is a hard place, grey and dismal and we are all blind and stumbling in it.)  But that sympathy is married to a horrifying naivete: the foolish belief that the police are your friends, and just telling them the truth will straighten everything up and let you live your happy life with all your sins atoned for and your mistakes so far behind in the rearview they're not even closer than they appear anymore.  Gods only know what the whole truth would have been, even: for all I know, the whole truth is that Dr. Esparza's then-friends took her down to the garage and let her get a few good shots in, and maybe the truth is she had a right to them.  I'm not immune to the charms of Hercule Poirot's "alternative solution" to the Murder On The Orient Express.  But I know this (funny--the fictional M. Poirot knew it, too, hence his "real" solution to the death in compartment number 2): the truth was never going to set Dr. Esparza free.


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