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Frank Carson knew how to try a defense case and win and, for three decades, Frank tried and won case after case in Modesto, a small city in California’s Central Valley celebrated in George Lucas’ “American Graffiti.” Trying and winning cases inspires admiration for anyone reading this column, but Frank’s success triggered a less charitable reaction in the Stanislaus County District Attorney’s Office and put him on the fast track to trouble in the world of small-city courthouse politics. This column honors Frank in part because he represents the thousands of solo practitioners across the face of America who stand for justice with little more than the comfort of their calling and the support of their brothers and sisters. More importantly, this column honors Frank because, in a morality play with local flare but universal themes, Frank eventually paid the highest price for his commitment to his clients and thereby hangs a tale….{1} 1 For more information, please look for a brilliant podcast called “The Trials of Frank Carson” by Christopher Goffard of the Los Angeles Times.
Let’s start with the basics — Frank’s courtroom persona. Frank may have lacked the physique of a prize fighter, but he looked for a knockout in every trial. Frank entered the well of the courtroom as if stepping into the ring, earning a reputation for haymaker cross-examinations of police officers who, Frank believed, hit below the belt with half-truths or lies. Frank didn’t jab. Frank landed body blow after body blow to prosecutors and police, defending the most despised of Modesto like an aging heavyweight draped in an ill-fitting, well-worn, unpressed dark suit and heavy black shoes. Frank, undeterred by the temptation to keep the peace in his local courthouse or drinking hole, never pulled a punch no matter what badge hung on the lapel of his punching bag. Frank was one of us — eccentric, real, and fearless.
Unfortunately, as Ibsen and Shakespeare have reported from the front lines of fiction and myth, making powerful enemies in a small town will catch up to you sooner or later and, in 2015, Frank’s nemeses stumbled onto a link between the disappearance of a young man and a junkyard owned by Frank as a kind of retirement fund lacking both fees and interest. The young man, a meth-addicted street-level hustler, had collected more than his share of enemies in the underworld of the Central Valley, but the DA fixated on a theory that Frank masterminded the killing and disappearance of the young man as payback for the attempted theft of a pile of aluminum pipe from Frank’s junkyard. Based on suspect evidence, the DA launched an unrelenting seven-year investigation whose single-minded focus would have made Captain Ahab recoil. Relying on tactics taken from the win-at-any-cost playbook, the DA eventually jawboned an “admission” from a down-and-out handyman who, after a great deal of strong-arming, named Frank as the mastermind of an extensive murder conspiracy.{2} 2 The murder case “hinged on the testimony of a man who previously had bragged about killing [the young man] himself and feeding his remains to pigs, before changing his mind and agreeing to blame the defendants,” the editorial said. https://www.modbee.com/opinion/editorials/article232092092.html. Based on this “admission,” the DA indicted Frank, his wife, his stepdaughter, two beloved local storeowners, and three California Highway Patrol Officers.{3} 3 The admission was the product of coercion and suggestion as revealed through Brady material released with a straight face during the preliminary hearing and shortly before the effective date for California’s new law making it a felony to withhold exculpatory evidence. -- endnote
Liberty suffered immediately despite the absurdity of the handyman’s admission and the DA’s theory.{4} 4 Of course, the state elected to arrest Frank “military style” rather than asking him to come into the courthouse that he visited day in and day out for decades. Rather than issuing a summons, the state dispatched a team of heavily armed SWAT officers with automatic weapons to the driveway of his home. https://news.yahoo.com/allegations-wild-murder-conspiracy-involving-120039942.html. The DA detained Frank in the cold concrete of the Stanislaus County Jail counting, perhaps, on breaking the man’s will, given his age and poor health. Frank, however, stood strong despite physical agony and the pain of knowing that his wife, stepdaughter, and friends suffered because the DA wanted to take him down. Eventually, during trial, Frank offered to plead guilty to save his co-accused who, he understood, were collateral damage in the DA’s war against him — yet another example of the trial penalty breaking the will of the accused by taking aim at family, friends, or innocents caught in the crossfire. If a veteran courtroom lawyer — blessed with a fighting spirit and dogged defense team — succumbs to this legalized coercion, how can our clients stand up to the trial penalty?
Despite Frank’s willingness to end their ordeal at his own expense, his companions in the dock would have none of it; every one of the accused refused to accept Frank’s sacrifice despite facing state prison for life.{5} 5 This tactic exemplifies the trial penalty — coercing a plea by threatening family and friends and using pretrial detention to isolate the accused from his support and defense team. -- endnote In the end, after 17 months of trial, every one of the accused who went to trial, including Frank, heard the words “not guilty” attached to their names.{6} 6 The Stanislaus County District Attorney’s Office dropped charges against the last defendant in the case, California Highway Patrolman Walter Wells, in December 2019. In the end, more than seven years after the start of the investigation, the only person convicted was the handyman-cum-star witness who offered one conflicting version of the truth after another to the satisfaction of the DA but not to the liking of a single juror. Trials matter.
Before you celebrate, however, please keep in mind the adage that the process itself can often be the punishment. Though each and every case resulted in dismissal or a not guilty verdict, Frank and his co-accused lost years of their lives, pensions, jobs, and the fundamental sense of living in a world with a modicum of justice. Consider the brutality of the time consumed by the DA’s case (17 months) following on the heels of an 18-month preliminary hearing during which Frank was held in custody despite every reason to release him,{7} 7 Frank was released during the preliminary hearing when the DA released the exculpatory evidence referred to above. https://www.latimes.com/california/story/2021-06-29/frank-carson-modesto-murder-trials-the-verdicts (emphasis added). including the fact that his kidneys were dying. Consider the threat of a second trial on a dying man had the jury dead-locked compared to the DA’s willingness to burn through state funds to take Frank down. The process, especially prolonged pretrial detention, drained Frank of his life force, contributing also to the stroke suffered by his highly regarded defense counsel and longtime friend, Percy Martínez.{8} 8 “During the trial, Carson, at 64, was in physical agony. In court he stood against the wall, his head on his forearm, one hand on his lower back. Sometimes he nodded off. His kidneys had failed, and he was up early for dialysis at the strip mall by Walmart.” https://www.latimes.com/california/story/2021-06-29/frank-carson-modesto-murder-trials-the-verdicts. Frank heard the words “not guilty” in the courtroom despite his flagging health while his counsel, Mr. Martinez, heard the same music from his hospital bed. Regrettably, Frank passed soon after on Aug. 11, 2020, at the age of 66, having been blessed with a year of enjoying the warmth of the Central Valley sun from his beloved porch.
One year after his passing, we honor Modesto’s unlikely hero. We acknowledge the price he paid for the work we all do for our clients and remind ourselves to celebrate the work that our solo brothers and sisters do across the face of America, often in the face of judges and prosecutors who see us as “worse than our clients.”{9} 9 My former law partner, Patrick Hallinan, suffered and survived persecution of a similar nature. Patrick, the oldest son of Vincent Hallinan, the Darrow of the West, stood strong against a RICO indictment — brought in Reno, Nevada, for this San Francisco defense attorney — based on the word of a former client who handed the DEA and AUSA an excuse to try to take down a giant. Patrick chose a top-notch advocate, John Keker, and stood strong and the jury returned the just verdict — not guilty. See John Keker, The Advent of the Vanishing Trial: Why Trials Matter, The Champion, September-October 2005, at 32, https://www.nacdl.org/Article/September-October2005-TheAdventOfTheVanishingTrial. We must celebrate the Frank Carson who stood strong in Modesto, all the Frank Carsons who hold the line for liberty every day in courtrooms across America, and the piece of Frank Carson that we all have inside of us — whether it comes with a contrarian bent, an ironic edge, idealistic passion, or any other color or hue in the human spectrum.
About the Author
Martín Sabelli represents individuals in state and federal courts in a wide range of civil and criminal matters from the simplest of cases and gang-related prosecutions to the most complex white collar investigations and death penalty prosecutions. He is a speaker at seminars and trial training programs for NACDL, the National Criminal Defense College, and other defense programs around the world.
Martín A. Sabelli (NACDL Life Member)
Law Offices of Martín A. Sabelli
San Francisco, California
415-298-8435
msabelli@sabellilaw.com
http://sabellilaw.com
Endnotes
- The admission was the product of coercion and suggestion as revealed through Brady material released with a straight face during the preliminary hearing and shortly before the effective date for California’s new law making it a felony to withhold exculpatory evidence. Fourteen months into the 18-month preliminary hearing, ADA Marlisa Ferreira “announced [that] she had a big cache of evidence — including scores of audio recordings — that had not been turned over to defense lawyers. She had just found them, she said.” In one of the years-old recordings, district attorney investigator Kirk Bunch told an incarcerated Robert Woody, who became the government’s star witness, how eager the DA was to work with him. “We’re bending over backwards for ya,” he said. “We just want to see if you want to add to your story.” Woody seemed to believe that detectives did not care whether his story was true or false. “Add stuff to it if it ain’t true?” Woody asked.” https://www.latimes.com/california/story/2021-06-29/frank-carson-modesto-murder-trials-the-verdicts (emphasis added). This last-minute release of exculpatory recordings — which were years old at that point — did not inspire confidence even in the eyes of a judge who many observers believed favored the prosecution. www.modbee.com/news/local/crime/article122770744.html#storylink=cpy. (^ return ^)
- This tactic exemplifies the trial penalty — coercing a plea by threatening family and friends and using pretrial detention to isolate the accused from his support and defense team. As reported in the Los Angeles Times, “They were a year into the preliminary hearing with no visible end, and Frank Carson was close to despair. He was trapped where so many of his clients had been, alone in a chilly cell in a Stanislaus County jail. He had rebuffed every overture to cut a deal, to plead, to inform on co-defendants in exchange for lenience. … But guilt pierced him. He blamed himself for the plight of his wife and stepdaughter, out on bail but charged in the so-called murder plot he had supposedly masterminded. He blamed himself for the continued incarceration of three other co-defendants, former highway patrolman Walter Wells and Pop N Cork liquor store owners Baljit “Bobby” Athwal and brother Daljit “Dee” Atwal. All of them had refused to implicate Carson, telling prosecutors they had nothing to say.” https://www.latimes.com/california/story/2021-06-29/frank-carson-modesto-murder-trials-the-verdicts. (^ return ^)
