Casey was big and tall, as they tend to recruit them in the Road Saints motorcycle gang—or club, as the membership prefers to be known. While being held in the Lancaster jail he had cut his hair and shaved, as I had requested, and he looked reasonably presentable, except for the tattoos that wrapped both arms and poked up above his collar. But there is only so much you can do. I don’t know much about the effect of tattoos on a jury but I suspect it’s not overly positive, especially when grinning skulls are involved. Idoknow that jurors in general don’t care for ponytails—on either the defendants or the lawyers who represent them.
Casey, or Hard Case, as he was known in the club, was charged with cultivation, possession and sale of marijuana as well as other drug and weapons charges. In a predawn raid on the ranch where he lived and worked, sheriff’s deputies found a barn and Quonset hut complex that had been turned into an indoor growing facility. More than two thousand fully mature plants were seized alongwith sixty-three pounds of harvested marijuana packaged in various weights in plastic bags. Additionally, twelve ounces of crystal meth which the packagers sprinkled on the harvested crop to give it an extra kick were seized, along with a small arsenal of weapons, many of them later determined to be stolen.
It would appear that Hard Case was fucked. The state had him cold. He was actually found asleep on a couch in the barn, five feet from the packaging table. Added to this, he had twice previously been convicted of drug offenses and was currently still on parole for the most recent. In the state of California the third time is the charm. Realistically, Casey was facing at least a decade in prison, even with good time.
But what was unusual about Casey was that he was a defendant who was looking forward to trial and even to the likelihood of conviction. He had refused to waive his right to a speedy trial and now, less than three months after his arrest, eagerly wanted to bring it on. He was eager because it was likely that his only hope lay in an appeal of that likely conviction. Thanks to his attorney, Casey saw a glimmer of hope—that small, twinkling light that only a good attorney can bring to the darkness of a case like this. From this glimmer a case strategy was born that might ultimately work to free Casey. It was daring and would cost Casey time as he waited out the appeal, but he knew as well as I did that it was the only real shot he had.
The crack in the state’s case was not in its assumption that Casey was a marijuana grower, packager and seller. The state was absolutely correct in these assumptions and the evidence more than proved it. It was in how the state came to that evidence that the case tottered on an unsteady foundation. It was my job to probe that crack in trial, exploit it, put it on record and then convince an appellate court of what I had not been able to convince Judge Orton Powell of during a pretrial motion to suppress the evidence in the case.
The seed of the prosecution of Harold Casey was planted on a Tuesday in mid-December when Casey walked into a Home Depot in Lancaster and made a number of mundane purchasesthat included three lightbulbs of the variety used in hydroponic farming. The man behind him in the checkout line happened to be an off-duty sheriff’s deputy about to purchase outdoor Christmas lights. The deputy recognized some of the artwork on Casey’s arms—most notably the skull with halo tattoo that is the emblematic signature of the Road Saints—and put two and two together. The off-duty man then dutifully followed Casey’s Harley as he rode to the ranch in nearby Pearblossom. This information was passed to the sheriff’s drug squad, which arranged for an unmarked helicopter to fly over the ranch with a thermal imaging camera. The subsequent photographs, detailing rich red heat blooms from the barn and Quonset hut, along with the statement of the deputy who saw Casey purchase hydroponic lights, were submitted in an affidavit to a judge. The next morning Casey was rousted from sleep on the couch by deputies with a signed search warrant.
In an earlier hearing I argued that all evidence against Casey should be excluded because the probable cause for the search constituted an invasion of Casey’s right to privacy. Using an individual’s commonplace purchases at a hardware store as a springboard to conduct a further invasion of privacy through surveillance on the ground and in the air and by thermal imaging would surely be viewed as excessive by the framers of the Constitution.
Judge Powell rejected my argument and the case moved toward trial or disposition by plea agreement. In the meantime new information came to light that would bolster Casey’s appeal of a conviction. Analysis of the photographs taken during the flyover of Casey’s house and the focal specifications of the thermal camera used by the deputies indicated the helicopter was flying no more than two hundred feet off the ground when the photographs were taken. The U.S. Supreme Court has held that a law enforcement observation flight over a suspect’s property does not violate an individual’s right to privacy so long as the aircraft is in public airspace. I had Raul Levin, my investigator, check with the Federal Aviation Administration. Casey’s ranch was located beneath no airport flight pattern. The floor for public airspace above the ranch wasa thousand feet. The deputies had clearly invaded Casey’s privacy while gathering the probable cause to raid the ranch.
My job now was to take the case to trial and elicit testimony from the deputies and pilot as to the altitude they were flying when they went over the ranch. If they told the truth, I had them. If they lied, I had them. I don’t relish the idea of embarrassing law enforcement officers in open court, but my hope was that they would lie. If a jury sees a cop lie on the witness stand, then the case might as well end right there. You don’t have to appeal a not-guilty verdict. The state has no comebacks from a not-guilty verdict.
Either way, I was confident I had a winner. We just had to get to trial and there was only one thing holding us back. That was what I needed to talk to Casey about before the judge took the bench and called the case.
My client sauntered over to the corner of the pen and didn’t offer a hello. I didn’t, either. He knew what I wanted. We’d had this conversation before.
“Harold, this is calendar call,” I said. “This is when I tell the judge if we’re ready to go to trial. I already know the state’s ready. So today’s about us.”
“So?”
“So, there’s a problem. Last time we were here you told me I’d be getting some money. But here we are, Harold, and no money.”
“Don’t worry. I have your money.”
“That’s why I am worried.Youhave my money. I don’t have my money.”
“It’s coming. I talked to my boys yesterday. It’s coming.”
“You said that last time, too. I don’t work for free, Harold. The expert I had go over the photos doesn’t work for free, either. Your retainer is long gone. I want some more money or you’re going to have to get yourself a new lawyer. A public defender.”
“No PD, man. I want you.”
“Well, I got expenses and I gotta eat. You know what my nut is each week just to pay for the yellow pages? Take a guess.”
Casey said nothing.
“A grand. Averages out a grand a week just to keep my ad in there and that’s before I eat or pay the mortgage or the child support or put gas in the Lincoln. I’m not doing this on a promise, Harold. I work on green inspiration.”
Casey seemed unimpressed.
“I checked around,” he said. “You can’t just quit on me. Not now. The judge won’t let you.”
A hush fell over the courtroom as the judge stepped out of the door to his chambers and took the two steps up to the bench. The bailiff called the courtroom to order. It was showtime. I just looked at Casey for a long moment and stepped away. He had an amateur, jailhouse knowledge of the law and how it worked. He knew more than most. But he was still in for a surprise.
I took a seat against the rail behind the defendant’s table. The first case called was a bail reconsideration that was handled quickly. Then the clerk called the case ofCalifornia v. Caseyand I stepped up to the table.
“Michael Haller for the defense,” I said.
The prosecutor announced his presence as well. He was a young guy named Victor DeVries. He had no idea what was going to hit him when we got to trial. Judge Orton Powell made the usual inquiries about whether a last-minute disposition in the case was possible. Every judge had an overflowing calendar and an overriding mandate to clear cases through disposition. The last thing any judge wanted to hear was that there was no hope of agreement and that a trial was inevitable.
But Powell took the bad news from DeVries and me in stride and asked if we were ready to schedule the trial for later in the week. DeVries said yes. I said no.
“Your Honor,” I said, “I would like to carry this over until next week, if possible.”
