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THE SPAN OF AN INJUSTICE

Fences and guard dogs surround Jerry Span's house on Fillmore Street, an effort to keep the rotting, increasingly destitute neighborhood that surrounds him at bay.

The house has been sheathed in scaffolding as Span tries to restore what was once his family's grand downtown home, a place were he, his parents and nine other siblings gathered for special occasions and long evening conversations.

Steel and wood, however, are less binding than other forces that circumscribe Jerry Span's life.

Four years ago, Jerry and his sister Darlene suffered what many eyewitnesses consider a gross miscarriage of justice. The brother and sister were convicted of resisting arrest after they and their parents were roughed up by two federal marshals who came to the family business mistakenly in search of a fugitive.

The Spans' case skipped briefly through the public spotlight back then, prompting protests outside the courthouse. Five members of the 12-person jury that convicted them even signed statements after the trial, saying they didn't believe the marshals' testimony. The jurors said they felt they had no choice but to convict Darlene and Jerry, though, given the way the trial judge explained the law to them.

Storied Harvard law professor Alan Dershowitz stepped in to handle the appeal, and most assumed that the case would ultimately be set right.

But since then, the Spans have learned that real courts are not like L.A. Law, where justice is neatly wrapped up on the hour.

Instead, they have found themselves in a withering war of attrition with the government, a battle that has destroyed them emotionally and financially.

Even though they face relatively lenient sentences--probation, house arrest and fines--the Spans steadfastly refuse to give in to their prosecutors. They are simply innocent, the Spans say, and each passing year and lost legal battle has fueled their fervor for justice.

While Darlene and Jerry have fought their criminal convictions, the entire family has been enmeshed in a protracted legal battle with the City of Phoenix over compensation for valuable family land that the city condemned near Sky Harbor Airport.

Although unrelated, the two legal fronts have totally consumed Darlene and Jerry's lives.

Jerry, who will turn 60 this year, has responded to the adversity with an almost childlike surrender, biding his time at the old family house, attempting to rebuild a past gone forever.

"Here you are, a good man, a good person, and then someone comes along and calls you a criminal," he says. "They don't care if you're innocent or not. They make you out guilty."
For Darlene, weeks away from turning 45, the legal battles have become an obsession, a full-time hunt for proof of some grand conspiracy or scheme that will allow her to understand what has happened to her.

"This has destroyed the whole family. Every single one of us," she says. "There is no life for us anymore."
In her relentless pursuit of vindication, Darlene has sometimes hurt her cause rather than helped it, say some who have represented the Spans along the way.

She can be alternately pleading and belligerent, and her unbridled insistence on controlling the case has alienated people who have tried to help her.

"At the first deposition, I quit," says one attorney who has represented the Spans in one action. He rejoined the case, he says, "but I quit four more times along the way."
A psychologist hired by one of the Spans' attorneys for a civil lawsuit diagnosed both Darlene and Jerry as suffering from Post Traumatic Stress Disorder, a psychological affliction most commonly associated with Vietnam War veterans.

"This was a classic case of injustice," says Gerald Pollock, one of the string of attorneys who have tried to help the Spans. "It was a painful experience. You believe in the case so much, and you believe in the system. But this time the system doesn't work."
Since the incident with the marshals, both of the Spans' parents have died. Darlene and Jerry have managed to put off serving their sentences while appealing their convictions.

But the delays may finally end later this month, when the Spans are due back in federal court. They will find out then if there is still any chance to clear their names, and whether they will ultimately lose a six-year legal battle that has slowly sapped away everything that once mattered to them.

@rule:
@body:The Spans are an unusually close family, built on twin pillars of opportunism and hard labor. Virginia and Bill Span moved their growing brood to Phoenix in the early 1950s, when the city was "young and little," as Jerry recalls it. Over time the family became something of a local institution.

Spans sold concessions and drinks at sporting events and operated a popular Christmas-tree lot. Parents and kids worked side by side as the ten children grew up.

 

Jerry Span, the oldest child, started his labors as a baby sitter when he was 7. He was never good at reading or writing, but he says that by age 16, he was the youngest house wrecker working in Arizona. For almost 20 years, he operated a snack stand at Encanto Park.

Darlene, the fifth Span child, started selling Christmas cards door to door when she was in second grade and didn't stop working until the fracas with the marshals knocked her life off track.

By nature and profession, the Spans were salvagers. When they moved here, the parents bought land on Buckeye Road near 19th Street. Over the decades, children bought nearby property as they moved out on their own, and the family also acquired a second house on Fillmore Street near downtown.

Among other businesses, the Spans ran a demolition and salvage company. Different children developed varying interests over time--collecting antiques or old stagecoaches.

By the late 1980s, the Span property on Buckeye was a pack rat's treasure trove. Movie companies would come to rent old building faades and wagons for use as props. Art students would come pick through junkpiles in search of materials.

Jerry Span, in fact, once dismantled a two-story home and kept it in his backyard for 20 years because it seemed a shame to throw it away. It turned out to be the historic Cole House, which has now been rebuilt in Olde Towne Square in Tempe.

But progress rolled in and wiped away the enclave that the Spans spent decades building. The 15 parcels of land owned by various family members north and south of Buckeye were part of a huge condemnation executed by the city to amass land for development near the airport.

In 1988, the Span family and the city were engaged in a heated dispute over how much they would receive for their property and--even more cumbersome--how to move all the piles and sheds full of stuff that the family had amassed over the years.

"One of the city people told us that we were the biggest move ever in the state," Darlene recalls. "We had invested 35 years of our lives in that ground. That place. That land was our future."
On April 7, 1988, the impending move was very much on the family members' minds. In fact, several members of the Span family were taking pictures of all the things they owned to have a proper inventory for the move.

Then the marshals came calling.
Marshals David Dains and Garry Grotewald would later testify that they were seeking a fugitive named Mickey Michael. One of the Span children was named Mike Michael.

They first went to the Fillmore Street house, where father Bill Span was that afternoon. The marshals would later testify that they simply looked around and left, but Alice Span said she found her 74-year-old father crying, apparently beaten, huddled on the kitchen floor, after the visit by Dains and Grotewald.

The marshals then went to the family business on Buckeye, where they found Jerry, Darlene, Pete, Virginia and Bonnie Span.

Jerry, Darlene and several customers who witnessed the ensuing violence say Dains and Grotewald did not identify themselves as marshals. The marshals testified at trial that they did.

(Dains and Grotewald, both still with the marshals service in Southern California, did not respond to requests for interviews channeled through their attorney.)

The Spans say they explained to the men that their brother, Mike Michael, was only 39 years old, not the 63-year-old man pictured on the wanted flier they were being shown. Darlene and Jerry turned and began walking away from the marshals, they say.

Then things became violent. The marshals would later testify that Jerry Span, a slight, 130-pound man, started the fight by slugging the 220-pound Grotewald in the chest and going for his gun.

Jerry and other family members were primed for conflict, the prosecution would later argue, because of the ongoing dispute over the land condemnation.

After Jerry started the fight, the marshals claimed, Darlene jumped into the fray, as did the elderly Virginia.

All three Spans were arrested.
The Spans--and other eyewitnesses--testified that it was the marshals who started the fracas, grabbing Darlene and Jerry as they walked away and slamming them into a car and a fence.

Remarkably, there was more than just eyewitness testimony to contradict the marshals' story. Virginia and Pete Span, who had been taking pictures for the inventory, started snapping shots of the incredible scene unfolding before them.

The marshals seized the Polaroid photos shot by Virginia. Pete Span, who was shooting with a 35mm camera, says they crushed one roll of film he shot into the ground. But he was able to get away with one roll of film.

 

The pictures show Grotewald smashing a handcuffed Darlene into a car and pinning Jerry onto another one.

Jerry and Darlene Span were charged with resisting arrest. Two years later, when the case came to trial, the photographs and eyewitness testimony were enough to convince at least five members of the jury that it was the marshals--not the Spans--who were responsible for the violence.

But, the jurors said later in statements, the judge's instructions appeared to give them no choice but to convict Darlene and Jerry of resisting arrest.

Basically, U.S. District Court Judge Robert Broomfield told the jurors that as long as the Spans did anything to resist marshals who were performing their official duties, they had to be found guilty.

The instructions Broomfield gave the jury read, in part: "Federal officers engaged in good faith . . . performance of their duties may not be forcibly resisted, even if the resistor turns out to be correct that the resisted action should not, in fact, have been taken."

Because Darlene and Jerry did wriggle and try to get away from Dains and Grotewald after the marshals jumped them, jury members said that they believed the law compelled a guilty verdict.

"The jury felt very sorry for [the Spans], but based on the instructions they got from the judge, they felt that they had no choice," recalls Oscar Goodman, a high-powered Las Vegas criminal attorney who defended the Spans.

Surely, Darlene and Jerry thought, the convictions would be reversed on appeal, and they could go on with their lives. Dershowitz, the prominent Harvard attorney, agreed to handle their appeal, calling the convictions outrageous.

He filed motions seeking reversal, claiming that the jury instructions Broomfield used were flawed, and that the jury had not been told that the marshals may have destroyed evidence by crushing Pete Span's roll of film into the ground.

Dershowitz also argued that defense attorneys were never shown grand jury testimony by an FBI agent that contradicted testimony Dains and Grotewald gave at the trial.

But the appeals, which eventually reached the U.S. Supreme Court, were all denied. To this day, the Spans stand convicted of resisting arrest.

And that is just the beginning of the troubles that have sprung from the fateful 1988 meeting with the marshals.

@rule:
@body:Although not logically connected, the Spans' legal troubles over the marshals incident have become curiously blended with the city's land-condemnation proceedings against the rest of the family, enmeshing the Span clan in a seemingly intractable web of litigation.

In 1989, various members of the family--though not Darlene and Jerry--were awarded a little more than $1 million for some of the family land that the city took.

Shortly thereafter, apparently believing that Darlene and Jerry would be coming into money, Dains and Grotewald filed lawsuits against the two for injuries they claim to have suffered while arresting the brother and sister.

Darlene and Jerry, in turn, sued Dains, Grotewald and the marshals service in federal court, claiming that their rights were violated.

Late last year, Darlene and Jerry's lawsuit against the marshals went to trial, and the Spans lost. Pollock, the attorney who represented them at trial, says it was difficult to convince a jury that the Spans deserved compensation for something that had led to their own criminal convictions.

An additional problem, Pollock says, was that--by the time she reached trial--Darlene Span had become so "obsessed and traumatized" by the ongoing legal problems that she was uncontrollable and abrasive during the trial.

"Juries only award money to people they like," Pollock says. "Darlene is not only totally obsessive about this case, but totally obsessive about control. It was two weeks of hell."
Pollock, who no longer represents the Spans, is one of a long list of attorneys Darlene, Jerry and other family members have run through during six years of legal wrangling.

Meanwhile, the city's second condemnation lawsuit against the family is still awaiting resolution six years after the property was taken. The city and Span family disagreed greatly over the value of the land, and the case dragged on as both sides played hardball.

The case finally was tried before a jury last year, which awarded the Spans $750,000 plus interest. Attorney Steve Hirsch, representing the Span family in that suit, says the last details are being worked out, but that various family members--though not Darlene and Jerry--will receive about $1.2 million.

Dains and Grotewald, however, tried unsuccessfully to intervene in that condemnation lawsuit. N. Warner Lee, the attorney representing the two marshals, says he wanted to ensure that, if Darlene and Jerry Span were due money from the city, it would be available to pay any possible future judgments that his clients might win against the Spans.

 

Ultimately, the marshals were not allowed to intervene in the condemnation case, but each of their lawsuits against Darlene and Jerry Span are still pending.

The multiple legal fronts, Darlene and Jerry say, have tapped them out financially and emotionally.

Hirsch, the last lawyer they have representing them in any of their various legal arenas, has moved to withdraw as their attorney.

Darlene and Jerry now have no attorney representing them in their criminal case, which is set to go back to federal court on March 28.

They are attempting to represent themselves, and have filed their own motions in Broomfield's court. Their strategy is to argue that their original trial lawyers did not mount a proper defense for them, a dubious assertion given the unusual statements from jurors that they were convinced the Spans did nothing wrong.

If their motions are rejected, Darlene and Jerry will face sentences that have been held in abeyance while they pursued their appeals.

Paul Rood, the assistant U.S. attorney now handling the Span case, says the government will continue to insist that the Spans serve their sentences, despite the passage of time and turmoil the convictions have caused in their lives.

"There was a jury trial a while back, and a jury determined that they were guilty," Rood says. The case has dragged on for all these years because of the Spans' efforts, not the government's, Rood notes.

"The length of time is a function of their motions," he says. "Everything is being pursued by the Spans. Not us."
If the sentences are imposed, for Darlene it means a $6,000 fine, 36 months of probation, three months in a community treatment center, three months' house arrest and mental-health treatment.

For Jerry, it means he will quite literally become a prisoner of the house on Fillmore Street, serving four months of house arrest along with 30 months of probation and a fine of $1,000.

For both, it will also mean rending the last shreds of faith they have in the courts.

Their brother Pete explains that the Span children were raised "warped by reality. We believed in justice and the justice system."

Says Jerry: "When you go to court, you think you're able to tell the truth about everything. But you can't talk about this, and you can't talk about that. How are you going to tell your story? I'm a criminal in their eyes.

"Here I am, one of the best citizens there is, and I hate crime, and I'm branded as a criminal.


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