Darlene and Jerry Span have suffered so, I am reluctant to write optimistically about them. I fear that if I mention the one uncontestably good thing that has happened to the Spans in the past few years, I will anger the gods of legal minutia, who might then rain dozens of new plagues and prosecutions on the family.
These siblings and their kin have had sorrows visited upon them for a very long time now.
The Spans were not always fodder for official abuse. The family has been a part of Arizona for more than 30 years. You might know them as the kids who sold you hot dogs at sporting events or Christmas trees from a lot on Buckeye Road near 19th Street. The Spans also ran a demolition and salvage company that, by the late 1980s, had turned their property into a pack rat's treasure trove. This large family was as close and hardworking and salt-of-the-earth as they come.
Then, on April 7, 1988, the official bludgeoning of the Spans began.
On that day, two federal marshals, David Dains and Mickey Grotewold, went first to the home of the 74-year-old family patriarch, Bill. The Spans claim the marshals roughed up the old man; the marshals have denied touching him.
Then the marshals went to the Span-family business, seeking a fugitive, one Mickey Michael. The Spans had a 39-year-old brother of that name, but he was clearly not the 63-year-old fugitive the marshals sought.
There are two wildly divergent accounts of what happened next, but Darlene and Jerry wound up being charged with the federal equivalent of resisting arrest--a felony.
At the 1990 trial, the marshals claimed the Spans viciously attacked them. The marshals testified Darlene Span attacked Dains from behind, injuring his knee and clawing his face, and then hit Grotewold in the chest. By the marshals' testimony, Jerry Span--all five feet, five inches and 118 pounds of him--went after the 200-plus-pound Grotewold and tried to grab his gun.
Anyone who knows Darlene Span, or much about her family, might question the memories of these poor, put-upon marshals. But you wouldn't need any special knowledge of the Spans to wonder about the marshals' claims.
Two defense witnesses---customers at the Span business who did not know the family personally--testified that these marshals were . . . well, astonishing liars. The defense witnesses contend the marshals showed Darlene and Jerry a flier about the missing fugitive; the Spans said they didn't know the person and began to walk away.
I'll let an appellate ruling recount what the defense witnesses said happened:
"At that point, Marshal Dains ran up to Ms. Span, grabbed her from behind by her ponytail, and threw her against the fence. They both fell to the ground, with Ms. Span trying to get Marshal Dains' hands off her hair. In the scuffle, Dains broke his glasses, which cut and scratched his face. He then dragged Ms. Span backwards, picked her up and pushed her against a car and held her in a choke hold. . . . Marshal Grotewold tackled Mr. Span from behind. 'He just come down with a karate chop to the back of his head and his knee and hit him' [a witness testified], 'and that was the end of Jerry.' Marshal Grotewold threw Mr. Span to the ground, then picked him up, threw him on the car and held him in a choke hold until the local police arrived."
Now, two unaffiliated eyewitnesses, both willing to testify that federal marshals had trounced two defenseless citizens for no good reason, would seem to be a boon to any defense lawyer. And the Spans did not hire just any defense lawyer--they retained Oscar Goodman, a Las Vegas legal wonder who is renowned for defending people sometimes described as "mobsters." Goodman is such a Vegas fixture that he was allowed to play himself in the film Casino.
Although Goodman has been the subject of news reports from coast to coast, one of the better descriptions of him comes out of the weekly Las Vegas New Times (no connection to this paper). The Vegas weekly ran a competition in which Goodman was chosen as Best Criminal Lawyer.
"Smart choice," the paper commented. "You might not like him getting mobsters acquitted, but if you were looking at going to jail for a very long time, Oscar is the guy you'd want at your table."
Darlene Span said she and her brother paid Goodman $50,000 to handle their case, and he promised them a first-class defense.
"He was not going to leave any rock unturned, he was going to take the case all the way to the Supreme Court," Darlene said last week.
Of course, the hope was that the Spans' case would be resolved before the Supreme Court heard it.
But it still hasn't been resolved, and their celebrity lawyer, Oscar Goodman, hasn't played much of a role since the trial.
Darlene and Jerry were convicted of resisting federal arrest back in 1990. To this day, Darlene complains that Goodman refused to allow her or her brother to testify in their own defense. She also claims that Goodman did not provide the full range of defense he had promised, and that he reneged on a promise to pursue an appeal of any conviction.
But let's give Goodman, who did not return my phone calls, the benefit of the doubt. For argument's sake, let's just say he provided what he thought was the best possible defense, regardless of what the Spans might say, and there was no promise of appellate counsel.
The simple fact is that the Spans were convicted by a federal jury, even though there was plenty of reason to believe they had been victims of a beating rather than criminal attackers. In fact, some of the jurors who'd convicted them gave written statements saying they thought the Spans had been abused by the system. The jurors thought the law, as given to them by the judge, left them no choice but to convict Darlene and Jerry--even though the marshals had been the bad guys.
In short, those jurors thought the law says that if federal marshals start beating the whey out of you for no good reason, you have no legal choice except to take the beating.
The Spans' sentences were relatively light--fines, probation, house arrest. But they could not believe being beaten constituted a crime, and they were determined to appeal the conviction.
In came celebrity number two.
Alan Dershowitz--famed Harvard professor, appellate lawyer of worldwide renown, O.J. Simpson Dream Team member--agreed to take up the case of Darlene and Jerry Span. He called their convictions what they were--outrageous.
As one might expect of a world-class lawyer, Dershowitz presented a well-documented argument to the Ninth U.S. Circuit Court of Appeals. Among other things, Dershowitz contended that the trial judge had given the wrong legal instructions to the jury hearing the Span case. In essence, Dershowitz argued, the judge had not told the jury about a right that belongs to everyone in America--the right to reasonably resist the excessive use of force by law-enforcement officers.
Now, this is not the right to assault officers performing in the normal scope of their job. You are not allowed to swat a cop just because he is arresting you. But the law clearly does allow a citizen to resist if a law-enforcement official begins beating him or her silly for no reason.
Dershowitz was absolutely correct in arguing for this right.
And a panel of Ninth Circuit justices agreed. Not only did such a right exist, the justices said, but the jury had not been told about it.
Even so, the appellate panel upheld the convictions of Darlene and Jerry Span.
You see, celebrity number one, that nationally renowned legal sharpie-cum-movie star, Oscar Goodman, had not formally asked the judge to tell the jury that Darlene and Jerry could legally have resisted excessive force.
And because Goodman did not formally ask that the jury be so informed, the judge was not legally required to tell.
There is one argument that Alan Dershowitz did not make to the Ninth Circuit Court of Appeals.
Alan Dershowitz did not argue that Oscar Goodman had displayed incompetence as an attorney.
Dershowitz was out of the country as I was preparing this column, so I can't really say why he didn't argue that Goodman was incompetent.
But I can tell you this: Despite all his press notices and film role, Oscar Goodman sure as hell did give the Spans incompetent legal representation.
And I can say this with absolutely no fear of a libel lawsuit. You see, the Ninth U.S. Circuit Court of Appeals has also said Goodman was incompetent.
That ruling, of course, did not come as a result of Alan Dershowitz's appeal, because Dershowitz did not come within miles of suggesting Goodman was incompetent. As Darlene Span puts it, "I found out the hard way that one lawyer won't tell on another."
No, the ruling that Oscar Goodman had been an incompetent lawyer came because Darlene Span is a woman of remarkable-- sometimes even irritating--determination. She said she did not have money to pay Dershowitz to continue contesting the convictions. So, she says, she began consulting with paralegals, retired lawyers, even an attorney barely out of law school.
Eventually, she filed her own motion at the Ninth Circuit, asking that the convictions be reversed.
On February 2 of this year--almost six years after Darlene and Jerry Span were judged felons--the appeals court ruled in their favor.
Where world-famous lawyers Oscar Goodman and Alan Dershowitz had failed, Darlene Span had succeeded.
The appellate court ruled that Goodman had failed to ask that the jury be told of the Spans' best defense against the federal charges. The court said such a defense probably would have resulted in aquittals.
In its ruling, the appeals panel dealt with the conduct of marshals Dains and Grotewold in a particularly stirring way.
"Given the facts to which the two independent defense witnesses testified, it is highly likely that a properly instructed jury would have found that the Spans were not the first aggressors, but only defending themselves against an excessive and outrageous use of force by the marshals."
And here's a sample of the justices' wonderful scorn for Goodman's work in this case:
"While we recognize that not every instance of counsel's ineffective handling of the jury instructions requires vacation of the underlying conviction, the egregiousness of the facts and the magnitude of trial counsel's incompetence in this case require that we do so."
The opinion--especially the bold-face, capital-letter REVERSED printed below the preceding sentence--seems to sing of justice and wrongs righted and the ultimate triumph of the American way.
The Ninth Circuit's stirring decision notwithstanding, the Span family hasn't seen anything approaching justice for some eight years now.
Darlene Span and her brother, Jerry, have been jerked around unconscionably and at length in vicious, un-American ways by their own government. The Spans have been branded criminals and, they say, forced into financial ruin. Their mother and father have died since that awful day in April 1988. Darlene and Jerry have watched other family members flee an unwarranted, unending torrent of abuse.
The Spans remain embroiled in a web of civil litigation connected to the beating incident.
What has happened to the Span family is horrifying. And, horrifyingly, it continues.
The U.S. Attorney's Office is asking the Ninth Circuit to reconsider its ruling in favor of the Spans. U.S. Attorney Janet Napolitano says her office believes the appeals court handed down conflicting rulings in its two decisions on the Span case. First, she says, the court contended that the flaw in jury instructions was a "harmless error" that would not have affected the outcome of the case, and then it ruled that the Spans would likely have been acquitted if the error had not been made. She feels that legal precedent runs against the second decision overturning the convictions.
If the appeals court does not reinstate the convictions, Napolitano said, she will have all the records of the case pulled and examined. Then, she says, she will decide whether to retry the Spans.
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I like Janet Napolitano. And her response to the latest ruling in the Span case, which began long before she was named U.S. Attorney, seems neat and legal and professional--at first glance.
But it's a wrongheaded, hardhearted, unjust decision.
There are many reasons Janet Napolitano should end this vicious parody of a prosecution immediately.
Some of them are spelled out in the Ninth Circuit's reversal of the Spans' convictions. The others . . . well, Ms. Napolitano will have to find them by looking into her own heart.