A Loosely Wrapped Widow Defends Herself Badly, Cont.

July 10, 2006

A Loosely Wrapped Widow Defends Herself Badly, Cont.

THE CASE OF THE PEOPLE OF CALIFORNIA VS. SUSAN POLK

Sentencing is postponed. Next Date: 8-11-06

This commentary presupposes some additional knowledge of the Susan Polk murder case. [It has captured the attention of courtroom dram fans and local media for several months.]

I began following it in this space because of its strange nexus to the Dyleski murder (the knifing homicide of Pam Vitale, the wife of Mrs. Polk’s trial former attorney, Dan Horowitz – my case tracking blog is referenced below). I was also intrigued because the Polk case represents the poster child for the abuses allowed by Faretta vs. California, the Supreme Court case that makes self-representation such a nightmare for the trial judge. [See the Recorder legal newspaper piece reproduced at the end.]

If we remember this case at all in the next few years, it will be due to something else entirely: The case of the People of California vs. Susan Polk is a parable; it is the story of how a spectacularly failed therapeutic relationship collided with a spectacularly flawed legal doctrine to make spectacularly bad courtroom theater.

JUST A FOOTNOTE?

Friday, July 10

Charlie Hoehn to the Rescue? Don’t Count on it.

Every felony defendant in California convicted by a jury has a statutory right to move for a new trial. When, as here, the defendant was unrepresented at trial, a lawyer appearing for the first time normally requests a transcript of the trial for review. Criminal defense attorney Charlie Hoehn has “appeared” with Mrs. Polk and requested a transcript so that he can determine whether to move for a new trial. Out of an abundance of caution, the trial judge has agreed, even though Mr. Hoehn has not actually committed to represent Susan Polk, nor to actually prosecute the motion for a new trial.

What is going on here? Mrs. Polk is grasping at straws and Mr. Hoehn is willing to assist in the enterprise provided he is paid for his efforts.

If Hoehn remains in the case, it will be an uphill struggle.

Recall that Mrs. Polk is barred from claiming ineffective assistance of counsel. So the counsel issue turns on whether the trial court erred in granting Mrs. Polk’s request for self representation. If, for example, it were to develop that the defendant was so barking mad as to amount to mental incompetence, then her assertion of the right to self representation might not be upheld.

Alas, Susan Polk was too clever by half. The issue will go nowhere.

Usually a motion for a new trial is pro forma, an “opportunity” – rarely taken by the astute trial judge – to correct his or her “errors” before the appeal process begins.

As a practical matter, the important function of the motion is to present new evidence, matters not otherwise in the trial record, like witnesses not discovered in time, instances of behind-the-scenes jury misdoings, and – in this case – professional, expert evidence bearing of the defendant’s mental condition during and before trial.

The case is now over till August 11th for “further proceedings”.

There is at least a 50% chance that Mr. Hoehn will not continue as Polk’s counsel then. If he does, there is a 99.99% chance that: (a) Mrs. Polk will not get a new trial.

(b) She will be sentenced to the term proscribed by law for murder second.

JBG

MY EARLIER POSTINGS IN REVERSE CHRON. ORDER

Friday, 6-16-06

4:00 PM Pacific

GUILTY – MURDER 2ND

As I wrote here a few days ago: Anyone who attempts self representation in a murder trial has a fool for a client. There are no exceptions worthy of mention.

In that strange moral and metaphysical universe inhabited by Susan Polk, a huge injustice was done to her today, compounding the injustices that drove her to stab husband Felix to death.

From the perspective of the real world, justice was done. A slightly unhinged woman has been held accountable for killing her husband; her imagined and real problems with her husband did not justify his murder. Her unconventional trial antics worked no magic on the jury.

In finding Susan Polk guilty of second degree murder, the jury has rejected Polk’s self defense claim, but found sufficient reason – possibly in light of her accumulated marital and pre-marital grievances, possibly out of deference to her to her bizarre mental state – to reject the first degree premeditated murder theory argued by the prosecution.

Evidence of premeditation can be overcome, for example, by a “sudden quarrel”. The offense can also be mitigated by elements of subjective self defense that fall so far short of the legal test that even manslaughter can’t be justified. The latter could have been in play here if some jurors thought that Mrs. Polk acted on impulse or was moved by a mixture of revenge and a paranoid “need” for preemptive action, or all of the above. I doubt that we’ll ever know for sure. Twelve jurors are rarely able to come up with a single, coherent explanation of how they reached any given murder verdict.

This outcome is what professionals call “substantial justice.” For someone of Mrs. Polk’s age, the practical differences between second and first degree murder sentences (15 to life vs. 25 to life respectively) can be very small because an actual second degree murder sentence often overlaps the minimum for first degree; given this prospect and the difficulties of life in a California prison (as Indiana Jones said, “It’s not the years, it’s the miles”) the additional decade she could have served in the first degree scenario would affect only the level of care needed when Mrs. Polk is eventually paroled into a geriatric facility.

An aside: The mindset of Mrs. Polk was criminal, but not evil in the classic “Edmund Burke” sense.

[My philosophical take on that epi-topic is at http://jaygaskill.com/evil2l.htm and http://jaygaskill.com/explainingevil.htm .]

For a contrast with Mrs. Polk’s offense, look at the case against the young man who will be tried in July for stabbing Dan Horowitz’s wife, Pam, to death. http://www.jaygaskill.com/Vitalehorowitzdeath.htm .

The Susan Polk sentencing will take place in about a month. Don’t expect any surprises. There is no probation for second degree murder, no lesser term.

Just before the verdict

10:45 Pacific

The outcome of this case (probably a murder conviction) will be announced in about one hour. At that moment, I’ll be attending the birthday of a very important 2 year old girl. [We all have our priorities.]

I’ll comment on Mrs. Polk’s fate at 4:00 PM today.

Stay tuned…

JBG

6-14-06

Argument winds down. The case is in the hands of the jury.

Mrs. Polk made a decent enough final argument on her own behalf yesterday, given the complete hash she made of the defense case before then.

After a short DA rebuttal, jurors were given their final instructions, a reading during which Mrs. Polk studied her notes and wept.

One of the perils of self representation is that, post-conviction, your appeal is almost always pre-eviscerated because: (a) you haven’t protected the record on appeal by making proper objections all along and; (b) you are not able to complain about ineffective representation of counsel.

While Mrs. Polk reportedly made some objections to the prosecutor’s argument, she had earlier failed to narrow the prosecution’s case by allowing character evidence to come in. This is always problematic for a defendant with aggressive tendencies.

At the end of the day, the thing that will sink this defendant is the location of the knife wounds she admittedly inflicted on poor Felix. When authentically acting in self defense, you do not normally stab the alleged assailant in the back. I note that Mrs. Polk thoroughly cleaned the blood from the assault knife and carefully put it back in the kitchen where it belonged after had she stabbed her husband. And I note that she did not the immediately call the police reporting his “assault” and her heroic “struggle.”

If this jury concludes (as I expect them to conclude) that Susan Polk and not Felix picked out the kitchen knife in the first place then – not to put too fine a point on it – she is toast.

A generous jury verdict would be second degree murder; a more likely outcome is first degree. An outside chance exists of a manslaughter verdict, but only if the jurors (more than one of whom apparently dozed during part of her argument and laughed during some of her evidence) really like her.

So the smart money is on a murder conviction. An acquittal is too improbable to seriously contemplate.

6-8-06

Both sides rest. Argument Monday.

Stay tuned.

6-6-06

A Loosely Wrapped Widow Defends Herself Badly

I have declined to comment on the Polk case, until now (except in an interview with the Recorder legal newspaper—full text below). But the latest developments are far too tempting.

Some background:

Susan Polk, who is on trial for murder in a courtroom in Martinez, CA, has admittedly stabbed her much older husband, Felix Polk, a psychologist who (it appears from the evidence) began their relationship when he was her therapist and Ms. Polk was of tender years. Her late husband thereafter attempted to run her life. This was a natural result of their age difference and his “therapeutic” relationship with her. It was a marital train wreck in the making.

The late night stabbing took place when the couple was locked in tense and acrimonious divorce proceedings and defendant Polk was temporarily resident on the couple’s disputed property.

Susan Polk claims self defense. This is a difficult claim because the elder husband whom she stabbed (Felix was 70 to Susan’s 48) was unarmed. All this has played out before a jury who has witnessed Ms. Polk’s bizarre attempts at clever self-representation. She earlier dismissed Dan Horowitz, an excellent trial lawyer, from her case. Anyone who attempts self representation in a murder trial has a fool for a client. There are no exceptions worthy of mention.

The Polk case illustrates another or my favorite maxims: Intelligence is no substitute for judgment. Ms. Polk’s mind is of the intelligent but loosely wrapped variety. She seems fixated on conspiracy theories and the legally untenable notion that the 20 stab wounds she inflicted on her husband might not be the legal cause of his death because – according to one witness – he probably died of a heart attack during the stabbing. One supposes that all those deep cuts from a kitchen knife might have had something to do with it.

Yesterday’s testimony shed little additional light: A former homicide investigator testified that the victim hadn’t “bled out”, evidence that his heart stopped beating before the stab wounds had an opportunity to kill him directly. The judge will have the last word here, when she instructs the jury at the conclusion of this overlong trial. Not to put too fine point on it, when you assault someone with a deadly instrument and there is an ensuing fatal event that is the natural and probable result of the attack, you can be guilty of murder. Think of those movie scenes where someone is shot in the leg and falls over a cliff. No the bullet wasn’t the medical cause of death, but it was the legal cause for purposes of fixing criminal responsibility.

Ms. Polk has one slim thread of a partial defense. More accurately, she had that thread going for her before she discharged Dan Horowitz. We legal specialists tend to call it “imperfect self defense”. Theoretically, when someone acts in a sincere, honest belief that using deadly force on someone is necessary in self defense, the homicide may be mitigated to manslaughter rather than murder. This may be true even if the jury concludes that the belief in the need for self defense was unreasonable. Reasonable, honest self defense results in an acquittal; unreasonable, but honest self defense may result in manslaughter. Think of those cases where someone has recently been assaulted, sees a dark silhouette in the alley, gets a glimpse of a gun-like object and shoots. Here, of course, I suspect that the jury will conclude that the alley itself was in Ms. Polk’s mind, if it was anywhere.

JBG

The following is Copyright © 2006 by The Recorder

Pro Per Cases Full of Judicial Pitfalls

Matthew Hirsch

The Recorder

04-04-2006

Five weeks into the Susan Polk murder trial, some legal observers say the defendant, who is representing herself, has already made significant missteps a trained attorney would never have made.

She has challenged the court’s authority and impartiality, included new evidence during cross-examination, and needled both the judge and prosecutor Paul Sequeira, who has twice asked to have Polk’s pro per status revoked. The trial now has some observers wondering whether it’s time to revisit the case law that defines a defendant’s right to self-representation.

Since the 1975 U.S. Supreme Court decision, Faretta v. California, 422 U.S. 806, established a defendant’s right to self-representation, criminal attorneys say the courts have offered virtually no guidance to help judges decide when to restrict, or revoke, that right. Any judicial guidelines have “devolved essentially into a cigarette warning label,” said Jay Gaskill, a former Alameda County public defender.

Retired Judge Michael Ballachey acknowledged that courts don’t have the proper tools to manage pro pers, adding, “There’s not much judges can do about it.”

Polk stands accused of stabbing her husband, Felix Polk, to death during a bitter divorce dispute in 2002. In January, Judge Laurel Brady granted Polk pro per status after the defendant fired her attorney, Daniel Horowitz. Last Thursday, Polk also fired her case manager, Valerie Harris, in the midst of court proceedings, severing perhaps her closest connection to the outside world.

Gaskill said he does not object to Polk’s right under Faretta, even while holding her up as an example of the problems with legal self-representation. But just as licensed attorneys must play by the rules or be penalized, so should pro pers, he said.

“I’d love to see a set of rules that you have to give to a defendant, and they have to abide by those rules or they lose the right,” Gaskill said.

Christopher Crawford, a judicial administration consultant, said self-representation in the legal system indicates a larger trend in a Home Depot-inspired, do-it-yourself society. “Susan Polk is only one piece of it,” he said.

Crawford said the courts are only beginning to address the increasing demands of self-represented litigants. He advocates fairly radical changes such as “unbundled legal services,” which would allow legal representation on a limited basis, something he said attorneys and judges have resisted.

“At the end of the day, you have to provide legal accommodation for those who, for whatever reason, want to proceed as self-represented litigants,” Crawford said.

Only time will tell whether Polk succeeds as an amateur attorney. Former Polk attorney Ivan Golde said the criticism directed at her is unfair. “Susan is doing the best she can,” Golde said.

But Contra Costa County District Attorney Bob Kochly said he sees little similarity between Polk’s performance and the sort of tricks trained defense attorneys sometimes attempt at trial.

“I don’t call hers tricks,” Kochly said. “I call it blatant defiance.”

About three weeks after the trial began, Sequeira told Kochly he may be able to wrap up his presentation after one more week. That was two weeks ago, Kochly said. “[Polk’s] presentation makes it difficult to have an orderly presentation of any kind,” he said.

Kochly said he understands Judge Brady’s reluctance to revoke Polk’s right to self-representation. But when asked at what point Brady would have to pull the plug, Kochly said he didn’t know, since there are no clear rules established to identify when a pro per crosses the line.

“The system was not set up for Susan Polk,” he said.

Roderic Duncan, a retired family law judge, said there’s “ample grounds” for Brady to revoke Polk’s pro per status, but doing so would most likely cause another delay in the trial.

Duncan has seen more pro per litigants than most felony trial judges, including some rather acrimonious disputes. A pro per once called him a “rat in the woodpile” prompting the judge to order a contempt hearing that led to the jailing of the litigant.

“Judges, in my experience, will be under a lot of stress in dealing with [this decision],” Duncan said. “The natural inclination is to see if you can somehow skate through, even though it’s going to be more taxing on the judge, [the prosecutor] and everyone else involved,” Duncan said.

One option for judges who grant a defendant pro per status is to assign advisory counsel — a trained attorney who can offer assistance at trial and be prepared to stand in for the defendant if necessary.

Duncan called advisory counsel a good intermediary step to use before revoking pro per status. “It doesn’t interfere with [the] right to self-representation whatsoever,” he said.

Jerome Falk Jr., the San Francisco attorney who successfully argued Faretta before the U.S. Supreme Court, expressed sympathy for trial judges who’ve had to deal with the outcome of the 1975 decision. “I would be the last to say this is not a problem or not a challenge,” he said.

But Falk said much of the criticism of Faretta overlooks the limits on the right to self-representation, such as a judge’s power to revoke the right in the face of “serious and obstructionist misconduct.”

Surprisingly, Anthony Faretta, a Los Angeles man who wanted to represent himself against grand theft charges, generated few of the same concerns about courtroom conduct that Polk has raised in her trial.

“My recollection of [Faretta] was as a pretty stable, intelligent man,” Falk said. “He was a fine client.”

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