DEFENDANT'S MOTION TO RECONSIDER
DECISION OF
NOVEMBER 25, 2002,
DEPARTMENT 18, REQUEST FOR
CONFLICT COUNSEL, PERSUANT TO
CALIFORNIA CODE
OF CIVIL PROCEDURE, SECTION 1008.
-------
INTRODUCTION
I, Scott Harrison, was appointed the assistance and counsel of
conflict attorney Jack B. Sutton by this court in October of
2002. After several meetings and phone calls with Mr. Sutton, I
found him to be fiercely and persistently opposed to assisting me
in any way if it involved casting doubt on the work or competence
of public defender Jonah Shoe.
Unfortunately that was the entire foundation upon which I felt I
had a right to submit a motion to the court requesting that I be
allowed to withdraw my plea bargain. I felt Mr. Shoe had been
ineffective counsel, had been utterly ill-prepared, and had
overwhelmed my will at the time the plea was made by very clear
and dishonest representations of law and court process.
Furthermore, I had seen several things while Mr. Sutton was
representing me that suggested to me that he was working closely
and in collusion with Mr. Shoe to defeat my cause and smother
efforts to lay a legal and factual basis for my motion. The
exerted efforts of Mr. Sutton to frustrate my case became
so great that I asked him to please put this matter on the
calendar so I could part amiably with him and be assigned a
conflict attorney who would actually come to my assistance rather
than the other way around.
Before the court, on November 25th (Department 18),
with the extra work and study of case law by the Honorable Harold
Kahn, it was my belief that indeed another conflict attorney would
be assigned to me. In fact the court paged one while I was told to
wait.
Nevertheless, after I had made one simple brief remark about the
matter before the court, my request for further assistance was
denied. I am now submitting to the court new and more detailed
arguments concerning this matter that the court could not have
been aware of. Based on these, pursuant to California Civil
Procedure Section 1008, I respectfully ask the court to take a
second look at the greater picture and grant my request for legal
counsel.
I have submitted for the court a written declaration that I swear
under penalty of perjury to be the truth and I have also submitted
for the court a single exhibit furnished for the court as a small
token signaling why this entire matter should ultimately return to
trial. The exhibit, (A), is a copy of the police report of the
original incident and a different, conflicting account, made by
the alleged victim, Khadija Wahab, in a sworn written declaration
to Family Court only days later. Respectfully Submitted,
Dated:
-------
Written Declaration of Defendant, Scott Harrison, No. 2010029,
concerning request for new conflict attorney counsel:
On November 28th, 2001,
as the result of a plea bargain, I pleaded guilty to #136.1(b)(1)
in the Penal Code, dissuading a witness from calling the police. I
believe now I have the right to new legal counsel and the right to
contest the way this plea was obtained.
The question I want to ask the
court is, why would an innocent person make a plea bargain to
anything? Why would I subject myself to thousands of dollars of
expense, 52 weeks of domestic violence counseling, a stay away
order from the person I loved and was married to, and the stigma
of a criminal record if I am innocent? If I’m not guilty — and I'm
not — then why on earth did I plead to anything?
I pleaded for the following
reason. When this whole thing began, Jonah Shoe from the public
defender’s office was assigned to defend me. He was new on the
job, he was inundated with cases, and it is my guess that he
simply did not prepare cases until the last moment. We did not
have one single long meeting devoted to going carefully over my
case during the entire seven weeks it was open. He did not call
witnesses. He did not obtain important evidence such as the “ 911”
tape.
My wife accused me of
domestic violence to secure her immigration status and to punish
me for criticizing her religion, Islam. I know from studying Jonah
Shoe’s file that the defense he planned to use for his opening
remarks was misinformed and misguided. He was headed off on some
formula defense because he had not grasped the essentials of my
case. Meanwhile the D.A.’s side was beautifully prepared. They had
eight witnesses (five police officers, two domestic abuse experts,
and my wife). Being the man, I had a greater burden to prove my
innocence and the fact of the matter is that Jonah Shoe was
utterly ill equipped to take my case to trail. Although I did not
realize it until the prospective jurors were in the courtroom, his
construction of a case consisted of some pretrial motions and
that’s about it.
I understand that poor
preparation alone is not grounds enough to allow me to withdraw my
plea or to request that the court appoint counsel. I realize a
lazy defense is not grounds to set aside the plea. But Mr. Shoe's
conduct goes beyond merely being lazy. There were other serious
elements that destroyed my ability to defend myself.
Mr. Shoe made it clear
to me that he felt under the law I would be found guilty by a jury
of battery and I would almost certainly do significant jail time
if I did not accept a plea. He said the choice was mine but he
painted it as no choice at all. The first offer he gave me on the
first day of trial was to plead guilty to one count of battery.
Despite his saying I would be found guilty anyway, I declined. I
told him I had never harmed my wife or even thought of harming
her. Then without speaking to the D.A., while still sitting out in
the court hallway, he made a second offer of a lesser
charge that was non-violent. He indicated that I also would most
probably be found guilty of this count, #136.1(b)(1) dissuading a
witness from calling the police. His recommendation to me was to
accept that plea.
Jonah Shoe told me
that although I claimed I was protecting myself and my wife when I
gripped her arm, it still would constitute battery. But no
reasonable person could possibly have done anything other than
what I did. My wife, who has a black belt in taekwando, had first
broken dishes in our kitchen and then a window with her fist. When
she broke the window her hand got cut. It was bleeding. She then
told me she was going to kill herself and attempted to go to the
long knives beside the stove. If I was a lawyer and I knew the
letter of the law, if I decided not to protect her but to protect
myself instead, if I made sure to keep my hands off of her, I
might have been on legally safe ground but she or I might be dead.
I do know what really happened and I also know there was nothing
else I possibly could have done.
When Mr. Shoe
explained that a jury would find me guilty of battery, I did not
understand the law. He never mentioned my basic right, recognized
in the law, of self-defense. To illustrate for me how the law
worked and how I would be convicted, he gave me an example of
someone bumping another person in an elevator. He said that also
would be battery and the law is very specific. He added that I
might in fact be innocent but I would be technically guilty.
He also said that even if — as I
maintained — no crime was occurring and I had no malice, when I
told my wife, “No, don’t call the police; call your friend Fatima or
Najet,” I was guilty of the crime of dissuading my wife from
calling the police and would be found guilty of P.C 136.1(b)(1).
Just because I said those words — despite not threatening her or
pulling the phone away from her or blocking her path to the phone;
despite no intimidation, threat, or interference and no crime
having occurred — I would still be guilty of #136.1(b)(1) of the
penal code.
Today, after nearly a
year has passed, I think innocence is innocence and much of what
Jonah Shoe represented to me as law was in fact pure hogwash. He
did in fact overwhelm my will by exploiting my ignorance of the
law. By citing false and hugely exaggerated examples of the law,
he pressured me to agree to a plea bargain, a bargain that
apparently he was anxious to obtain because he was utterly
unprepared for trial. He did this when I was under enormous
pressure by nearly guaranteeing conviction and jail time if I did
not go along.
That, your honor, is
the answer to why innocent people would plead guilty to anything.
When subsequent
attorneys made a motion to allow me to withdraw my plea, they did
not raise the issue of ineffective assistance. They were aware of
my complaints against Jonah Shoe and decided for their own
reasons, unknown to me, not to include that issue in the original
motion. So the motion I now am attempting to put before the court
is not a repetition of the motion filed in May 2002.
When I obtained the legal assistance of conflict attorney Jack
Sutton, I found him
to be fiercely opposed to any criticism of the work done by public
defender Jonah Shoe. When his opposition became so bad that I had
to conclude Mr. Sutton would not or could not represent my
interests, I asked him to put the matter on calendar so I could
request another attorney. Just to illustrate, I’ll remind the
court what happened when I came into court to make the change: the
conflict attorney, Jack Sutton, was thoroughly prepared to show
the court how I did not deserve any counsel at all and he
had case law ready to argue the point. This was typical of my
whole experience with him. He did not want any of what I’ve
stated against Jonah Shoe in this declaration known by the court.
When law is practiced fast and
sloppy, botched cases are certainly going to appear. Mine is one
of them. I believe it serves the court well, defendants well, and
the people well to eliminate shoddy and dishonest legal work where
it is found.
If I were actually
guilty of domestic violence against my wife, this plea bargain
would have been a sweet deal. Only an innocent person would even
dream of undoing it.
Your honor, I never
wanted any “deal.” I never wanted anything less then full
vindication, and the lack of defense and the misrepresentation of
law administered to me by public defender Jonah Shoe cheated me of
the one chance I had to get it. I am not asking for a second
chance to prove my innocence. I am asking for my first chance,
which was stolen from me. I have no prospect at all if I am
deprived of legal assistance. That is why I respectfully ask that
you reconsider your decision and appoint another attorney.
