Most often, criminal defense attorneys use a preliminary hearing primarily for discovery purposes, to hear the prosecution’s case; to assist in their own preparation for trial.
The “probable cause” standard of proof in a preliminary hearing is rather low and relatively easy for the prosecution to meet. At trial, the standard of proof is “beyond reasonable doubt,” which means the prosecution must prove its case beyond a reasonable doubt, but at the preliminary hearing stage, the standard of proof is whether there is probable cause to believe that the charged offense was committed and whether the charged defendant committed it. As a general rule, depending on the strength of the evidence, of course, defense attorneys seldom attempt to really rebut the case to the point of attempting to convince the judge to dismiss the charges at the preliminary hearing stage, rather than bind the case over for trial, knowing that if the prosecution can simply make a prima facie case, the chances of getting a dismissal at that stage are usually pretty slim. Consequently, even if they might end up testifying at trial, defendants rarely testify at a preliminary hearing. Keeping defendants off the witness stand also helps prevent the possibility of prior, inconsistent statements.
I had tried to explain all this to Kenneth McCoy, but he wasn’t listening and wasn’t about to be denied. In his mind, regardless of what Hek MacDonald said, the state’s case was so weak that no judge with a brain in his head would even consider binding it over for trial, especially after hearing from him. From his perspective, this was his day in court and he wasn’t going to be denied an opportunity to have his say.
One of McCoy’s close relatives was apparently a law school professor somewhere. Although I could only bite my tongue and roll my eyes when he did it, McCoy quoted him often, claiming that his dear relative had frequently praised McCoy’s legal acumen, and called him “the best lawyer there never was,” meaning, I suppose, the best, or smartest non-lawyer. Consequently, I had come to learn that I was merely a formality in the whole process. Although I wanted to ring his neck most of the time, McCoy wanted to call all the shots. He was absolutely convinced that he knew far more than I did, and he would have no problem convincing the judge to believe him and dismiss the case.
So, over my objections and advice, McCoy took the stand, and I began my direct examination. Usually it’s the lawyer who prepares and coaches the witness before they take the stand, but in this case, it was McCoy who had coached me and told me exactly what questions I was supposed to ask.
“Now, Mr. McCoy, you’ve heard Mr. MacDonald’s testimony here today about what happened on June 18th, will you please tell the court what actually happened that day?”
“When I got up that morning,” he started out, “I could see white cows in my field. I figured they were Hek MacDonald’s because he’s the only one around the canyon with white cattle. His fences are terrible, and his cattle are almost always out, up and down the road. . . . I’ve had some real bad experiences with cattle; some real close calls, especially with Beefmasters. . . . They can be real dangerous, so I took my pistol for protection. Besides, I almost always carry a firearm anyway, for squirrels, rabbits and coyotes. I’ve never actually run into a mountain lion on our place, but I’ve seen tracks, so I always like to be prepared, just in case. If at all possible, I always like to be armed for protection.”
“What did you intend to do with the cows?”
“I was going to stray-pen the cows. They were in trespass, and it was high time somebody taught Hek a lesson. His cattle run all over Johnson Canyon and nobody ever seems to do anything about it, so I was going to put ‘em in a stray pen. . . . My neighbor, Sysco Jackson says that if Hek would stay home and take care of his fences, instead of always chasing up and down the canyon patrolling everyone else’s water, maybe his cows would stay in. . . .”
Stankey broke in: “objection, your honor, and move to strike, based on hearsay and relevance; what Sysco Jackson says is hearsay and has nothing to do with this case.”
“Sustained.”
“Alright, Mr. McCoy, please limit your responses to my questions. Did you know the trespass or ‘stray-pen’ procedures?”
“Well, I knew the California trespass and stray-pen procedures. I know the California Code inside out and backwards, so I figured that was good enough, because California’s a lot more sophisticated and advanced than Utah. . . . As far as I’m concerned, Utah’s in the stone ages; probably still got a hanging law on the books. . . . But in California, you just secure the livestock by putting them in a corral, then call the brand inspector, and recover a statutory fine against the owner.”
“So what were you planning to do?”
“I was going to put them in a corral and call the county sheriff. I’m tired of seeing Hek’s cattle running all over the country. I didn’t know who the brand inspector was, so I was going to call the sheriff. As much as Hek’s cattle are out, I thought maybe the sheriff would arrest him.”
“Okay, so that’s what you were planning to do. What did you do?”
“I was trying to get the cows out of my field into a corral, but they acted like they hadn’t eaten for a week. All they wanted to do was eat my alfalfa. I could hardly get them to budge; they’d just kind of mill around and then put their heads back down and start eating again . . . and then Hek showed up.”
“What happened then?”
“Well, he came roaring up the canyon once in his little, rattle-trap pickup truck, and then turned around and left. I assumed maybe he either went back to get a firearm, or call the law himself, when he saw me. . . . I knew he’d been in the Marines. He’s always going around vandalizing all of mine and Sysco’s farm equipment, so between that and being an ex-Marine, I figured he could probably be pretty violent. . . . I figured I might end up needing to defend myself, but I’m a crack shot, so I wasn’t too worried about it. I’d put myself up against a washed-up Marine any day. . . . But on the other hand, I figured if he called the law, maybe the sheriff would show up and arrest him first.”
“So what did he do?”
“When he got back, he jumped out of his truck and told his dog to attack me.”
“What exactly did he tell it?”
“I couldn’t hear exactly, but the dog came toward me and started barking and growling and acting real vicious.”
“What did you do?”
“What could I do? Hek told his dog to get me. He was the aggressor. I was on my own property. I had to defend myself. “
”Did you say anything?”
“I told him to call off his dog and get it out of there.”
“What did he say?”
“He didn’t really say anything. He seemed to be ignoring me, but he was telling the dog to get me.”
“So what did you do?”
“I did the only thing I could do to defend myself. I fired a warning shot to scare the dog off.”
“Now, you’ve heard Hek’s testimony that you threatened him. Did you threaten Mr. MacDonald?”
“Of course not. I was acting purely in self defense. The only thing I ever threatened was his dog, which I had to do to protect myself.
“What happened then?”
“That was about it. Hek took off, got in his truck and took off down the canyon, behind his cows.”
Two sides to every story. Who’s story to believe? I didn’t know quite what to think, but I could feel hot sweat running down my back. As persuasive as Kenneth McCoy was convinced that he was, I was having serious doubts. Maybe it was all the other interactions I’d had with him, but I was having a hard time thinking that he sounded very believable — at least to me. But, then again, that was the judge’s problem, not mine.
From a judge’s perspective, however, at the preliminary hearing stage, it’s really not that hard. If there was any reasonable likelihood that there could be any truth at all to Hek MacDonald’s story, then the easiest thing to do would be to punt; bind the case over for trial and let a jury assess the witnesses’ credibility and try to sort out who was telling the truth and what really happened.
So to McCoy’s utter dismay, Judge Watson did exactly what any reasonable judge would have done; denied our motion to dismiss, and bound the case over for trial. McCoy was absolutely stunned, incensed, and immediately became completely paranoid.
Although in McCoy’s mind, he hadn’t done anything wrong, in his words: “. . . if that judge is willing to believe all that BS and find probable cause, then there’s at least a possibility that a jury could too, and convict me of aggravated assault. . . . That would be a felony on my record. That would mean I couldn’t even legally possess a firearm . . . and I just can’t risk that. . . . Until today, I would have never believed that people could be taken in like that — especially a judge that’s supposed to know the law. . . .” In conclusion, he snarled “you better see what kind of a deal you can cut, and it better be a good one.”
Based on McCoy’s instructions, I ended up cutting what I thought was a pretty good deal. After enough badgering and negotiating, Tim Stankey finally agreed to let McCoy do a “diversion” agreement: the charges would be diverted for one year; which meant that if McCoy would simply keep his nose clean and stay out of trouble, the charges would be completely dismissed, dropped, and simply go away: no probation; no fines, nothing. All he had to do was stay out of trouble for one year.
But McCoy was upset — particularly when he got my bill, following the hearing.
“You mean to tell me it cost that much, and you weren’t even able to get me completely off? What is this?”
Although by most people’s standards, it was a great deal, a sweetheart of a deal, McCoy didn’t like it. He didn’t want it hanging over his head. He didn’t want anything hanging over his head. As far as he was concerned: “. . . for that price it should have been dismissed outright.” According to McCoy, everything seemed to be everyone else’s fault.
“This is highway robbery,” he continued in a savage tone. “Why should Hek MacDonald get off Scot free? He’s the one that assaulted me with his dog. What if he deliberately attacks me again? I won’t even be able to defend myself. . . . I knew I should have had a more experienced attorney. For a while, I thought you were better than that, but apparently you’re still wet behind the ears for hell sake! . . . That judge screwed me over. Stankey’s got it in for me, and here I am stuck with a greenhorn attorney. They just steamrolled us, and you let ‘em do it! . . . It’s ended up costing me almost a thousand dollars, just to have this thing hanging over my head for a year.”
I bit my tongue as long as I could. But by the time he finished, he had succeeded in really getting my dander up. I’d had it with him, his foul mouth, his attitude, and just about everything else about him. I knew what I had put into the case. I knew that I had handled it as well, and had certainly gotten as good a deal as any more experienced attorney could have. I also knew how much I had discounted his bill already. To be called young, and maybe a little bit inexperienced was one thing, but to call me “a greenhorn attorney” and “wet behind the ears,” really hit a nerve. If there was one thing I wasn’t, it was that. After all the work I’d put into the case, and cutting what anyone else would have considered to be a good deal, for him to accept no responsibility whatsoever, and blame the entire outcome on everyone else, particularly including me, was more than I was willing to take.
Despite all the pressures to the contrary, including financial issues and the fact that McCoy had started out as Terry Spencer’s client, as much as I hated to see it come to this, without speaking and while exercising great restraint not to say anything, or simply beat him to a bloody pulp, I got up and walked over to the door.
“We’re done,” I snarled, as I opened the door.
“What do you mean we’re done?” He growled. “We haven’t even got this deal completely done yet, and we’ve still got Hepworth to deal with.”
Although I’m sure it may have just been his way of trying to vent, lay guilt, and somehow motivate and/or intimidate me into getting more pumped up — maybe even as outraged as he was about the whole thing — it hadn’t worked.
“No, Kenneth, I’m sorry, they’re your’s to deal with now. I’m done.”
“What do you mean you’re done? You got me into all this mess, and now you’re trying to just up and leave me in a lurch. You can’t do that. You’ve got to finish it up!”
“I’m not going to argue about it, McCoy. I’m done. Now take your files, and your mouth, and your condescending California attitude and get the hell out of here!”
He looked like he could hardly believe his ears, but I think he could probably tell by the tension running through my body and the look in my eye, that I wasn’t kidding. He wanted a fighter, and right then I was fired-up enough that I’d have been more than happy to oblige him. I was fully prepared to pick him up and throw him, bodily, out the door, but he seemed to be able to sense that, and slunk out on his own accord, cursing under his breath.
Over time, I came to learn that unfortunately it was not an entirely unusual scenario, even with much more reasonable clients: regardless of what you do, if you lose, your client hates you anyway; if you win, everything’s okay until he gets the bill, and then he hates you just the same.
Needless to say, the exhilaration I felt in kicking McCoy out of my office was the only compensation I ended up getting out of the case. Even though Kenneth McCoy ended up becoming one of the first of a short list of ex-clients that I hated to pass on the street or run into at the local grocery store, as far as I was concerned, it was worth it — goodbye and good riddance.
