Steve Fabian in the Sonoma County Bar Association: THE BAR JOURNAL
Steve Fabian – The People’s Lawyer
When you drive by Steve’s home in Sebastopol, you are greeted by an immense statue of Lady Justice, a sculpture made of junk by the noted folk artist, Patrick Amiot. I asked Steve if the scales were tipped, and he told me that it depends on which way the wind is blowing. It may also depend on whether or not Lady Justice is sensitive to the years and years of effort Steve has put into bringing justice to ordinary people.
I met Steve at his office on Orchard Street, an older renovated house where his wife, Judy McCann, and several other lawyers representing the “underserved” (e.g., unauthorized immigrants) also have offices. In the conference room where we met, there was a huge pile of folders. Steve had gathered these together for our interview. The folders were both neatly organized, yet spilling over with yellowed newspaper articles, award certificates, and even a pay stub from September 13, 1978,that showed Steve’s starting salary of 96.53 per hour as an attorney in the Law Office of the Public Defender, Sonoma County.
As a new public defender, Steve didn’t waste any time getting involved in improving the pay scale for the county’s public defenders. He and Steve Weiss organized the Sonoma County Deputy Public Defenders Association. After protracted negotiations and a year standoff, the county entered into a contract with the public defenders, guaranteeing them parity with the attorneys in the county counsel and district attorney’s offices.
Steve was a deputy public defender from 1978-2010, then then transitioned into a private criminal defense practice. He’s now back to half-time at the P.D.’s office, representing parolees facing parole violations as well as continuing his private cases. When I told Steve I knew a homeless man on parole in Healdsburg who has to get his electronic cuff charged at an electrical outlet at Safeway, Steve told me that it’s very challenging for the homeless to meet parole conditions. Steve added that 3/4 of the parolees who violate are homeless.
Steve loves his public defense job. He attributes this to liking his clients and working shoulder-to-shoulder with great attorneys, among them Bruce Kinnison (“He knows more criminal law than anyone”), Steve Weiss, Marteen Miller, Virginia Marcoida, and Jamie Thistlethwaite. The latter two are now judges.
When asked for a comment, Bruce Kinnison said: “I’ve known Steve over 30 years, mostly at the P.D. office. We’re good friends. Steve is so smart, so rigorous, so demanding and so committed that he can be a handful for his clients and supervisors. He is without doubt one of the most effective criminal defense lawyers in the area, one that both prosecutors and judges sometimes find daunting. For example, once I was eating lunch with a judge. The judge had to leave at 1:00, saying, ‘I have a Fabian motion at 1:30, and I have to be totally ready for it. If it’s a Fabian motion it’s probably good.’ Steve wins cases, sometimes after wars of attrition, which other lawyers settle. Steve is funny as hell, a great alum of Michigan State and a one-person buying guide for anything electrical or mechanical. I never shop without him.”
Why does Steve care about criminal defendants and those who fall through the cracks in our judicial system? Steve replied, “My father Philip told me you should always try to make the world a bit of a better place while you’re there.” Steve described his father as an “unpretentious man” who owned a radio and TV repair store in Detroit. During the 1967 riots, his store was gutted. He rebuilt it, while all the other radio and TV repair stores left. Steve said of his father, “He didn’t think big, but he thought great.”
In addition to his dedication to his job, Steve has been very active for many years in the American Civil Liberties Union (ACLU). His wife Judy took him to his first ACLU meeting. Steve served on the board of directors of the Sonoma Chapter from 1987 to 2013. He’s also served as the county chapter representative of the Northern California ACLU, which has a national reputation regarding immigrant rights issues.
In 1998, Steve was awarded the ACLU Northern California Lola Hanzel Courageous Advocacy Award in recognition of his work, which “turned the ACLU Sonoma County Chapter into one of the most successful chapters in Northern California, if not the country.” Steve became the voice of the ACLU in Sonoma County, speaking out on civil liberties issues in the media, in schools, and before civic groups.
Wayne Gibb, who served on the board of the ACLU of Sonoma County for approximately 30 years, told me, “The biggest event of the year for the Sonoma County Chapter of the ACLU is its annual awards dinner; about 200 people typically attend. Steve was always the ‘sparkplug’ who made sure the dinner was a success.” Judy, a friend of mine for many years, described Steve as the “most content and genuinely happy person I know. He loves his life work serving as a public defender. It fills him with purpose. I truly admire his unique ability to expertly represent and help each of his clients with respect and without judgment. He has an endless store of energy and spends the rest of his day as a loving and involved husband and father.”
Steve and Judy have two children: Jay, 24, and Audrey, 23.These kids were 8 and 7 when Steve received the Lola Hanzel Courageous Advocacy Award. At that time, Steve said that the reward for activism was simple – “We have two young children. You are not only fighting for yourself and the people you know, but also for the future as well.”
By Gail Jonas
Gail Jonas is a mediator and estate planner I in Healdsburg and has written attorney profiles for the bar quarterly since 1997. Her website is www.GailJonas.com
Debate: Abolish death penalty, amend three strikes?
By GUY KOVNER
Conflicting ideas about justice and public safety, underlined by economic considerations, emerged in a public forum Sunday on two state ballot measures that would abolish the death penalty and amend the three strikes law.
“If it’s not broken, you don’t fix it,” child safety advocate Marc Klaas said, asserting that California’s three strikes law has “worked superbly” since voters approved it in 1994, a year after his daughter, Polly, was abducted from her Petaluma home and murdered by a repeat offender.
“You have half the chance of being the victim of a violent crime than we did in 1994,” Klaas told about 150 people attending a forum called “Changing Criminal Justice in California” at Congregation Shomrei Torah in Santa Rosa.
Richard Allen Davis had been sentenced to more than 200 years in prison before he killed Polly, her father said, but knew he would be released in a few years in each case.
“He wanted to avoid AIDS by getting a young one,” Klaas said in an impassioned presentation, wearing a button with 12-year-old Polly’s face on it.
Steve Fabian, a Santa Rosa criminal defense attorney and American Civil Liberties Union board member, said Proposition 36 on the Nov. 6 ballot is a “very limited fine-tuning” of three strikes.
It would require that a third strike, triggering a sentence of 25 years to life, must be for a serious or violent crime rather than any felony, as the law now stipulates.
Of the 8,873 third strikers currently imprisoned in California, more than half — 4,676 — were convicted for nonviolent crimes such as drug possession and shoplifting, Fabian said.
Three strikers account for 6.6 percent of the state’s 134,868 prison inmates, and Klaas said they are “absolutely and exactly where they need to be.”
“No rapists or murderers will benefit from Proposition 36,” Fabian said, noting that convicts would be eligible for re-sentencing only if their third strike was nonviolent; none of their prior convictions were for rape, murder or child molestation; and a judge determined they were not a threat to public safety.
The current law is unfair, costs too much and has not made California safer, Fabian said, citing the state Legislative Analyst’s estimated $70 million to $90 million annual savings from amending three strikes.
Violent crime rates had already peaked before the law was passed, Fabian said, attributing the decline to an aging population, not three strikes.
Sonoma County has 27 three-strikers in prison, he said.
District Attorney Jill Ravitch, who moderated the forum, said it is “rare if ever” that her office seeks a third strike penalty for a nonviolent offense.
Ravitch said she is not taking a public position on either Proposition 36 or Proposition 34, which would repeal the death penalty as the maximum punishment for murder and replace it with life imprisonment without parole.
Life sentences give society “every bit of protection” it could ask for without risking “the cost of executing innocent people,” said Lawrence Marshall, a Stanford University law professor who supports the ballot measure and was co-founder of the Center on Wrongful Convictions at Northwestern University.
“You are better off being guilty and rich than being innocent and poor,” he said, noting the prevalence of minorities on death row and in the criminal justice system overall.
Marshall also disputed the idea that capital punishment deters crime, saying that “people who do murders do it because they think they won’t get caught or they just don’t care.”
About 900 people have been sentenced to death in California since 1978, and 14 inmates have been executed — none since 2006. Eighty-three inmates have died prior to execution, and 75 have had their sentences reduced, leaving 726 on death row.
Kent Scheidegger, an attorney and legal director of the Criminal Justice Legal Foundation, noted that Virginia executed Beltway sniper John Allen Muhammad six years after his conviction.
“We could do that here,” Scheidegger said, asserting that every defendant should receive only one appeal and appeals should be terminated when no “claim of innocence” is raised.
The death penalty “costs more than it needs to,” he said, but the cost estimates fail to include the prosecutorial savings when capital murder cases are plea-bargained down to life without parole as well as the medical expenses involved in keeping people incarcerated for life.
The Legislative Analyst estimated a savings of $100 million to $130 a year from abolishing the death penalty.
“It really shouldn’t be about the money,” Scheidegger said. “We can afford justice, and we should continue to do so.”
Marshall said he has worked on death penalty cases in which exonerating evidence emerged 14 to 18 years after trial.
“They are us, they’re our children,” he said, referring to murderers. “We are a community.”
It all started with two murders. The tragic cases of Polly Klaas, the 12-year-old Petaluma girl who was kidnapped and murdered by parolee Richard Allen Davis on Oct. 1, 1993, and Kimber Reynolds, an 18-year-old from Fresno murdered in 1992 during a purse-snatching incident, galvanized the “tough on crime” agenda in California. In response, voters in 1994 approved Proposition 184, established to put violent career criminals behind bars for life.
But in the nearly 20 years since “three strikes” went into effect, many nonviolent offenders have been swept up in an overreaching, anti-crime net.
“We need prisons for people who prey upon society,” says John Abrahams, a retired Sonoma County public defender who supports Proposition 36, a November ballot initiative that would reduce prison sentences served by qualified third-strikers whose current offense is a nonserious, nonviolent felony. “We don’t need to lock up people for life who steal pizza or bicycles from garages, or drug offenders, things like that.”
Drafted by lawyers at the NAACP Legal Defense Fund and the Stanford Law School, the initiative is modeled after successful “three strikes” sentencing policy implemented in Los Angeles County by District Attorney Steve Cooley. The Legislative Analyst’s Office estimates that Proposition 36 would save the state approximately $70 million a year in the beginning and $90 million yearly after that.
Currently, there are 140,000 inmates in state prisons; 33,000 of those are second-strikers and 9,000 are third-strikers. Under Proposition 36, 2,800 third-strikers would be eligible for re-sentencing, potentially reducing their prison sentences from life in prison. Excluded from the measure are those whose previous crimes involved sex offenses, drug trafficking, homicide, firearms or weapons of mass destruction.
Those fighting for “three strikes” reform say that an aging prison population is taxing the prison system, since prisoners over the age of 50 tend to have higher medical needs. The 2011 U.S. Supreme Court ruling that crowded conditions in California prisons amount to “cruel and unusual punishment” has compounded the crisis.
Racial disparity in court sentencing is another area of concern, according to Elsa Chen, an associate professor of political science at Santa Clara University. At a Sept. 19 legislative hearing, Chen said that although African-Americans make up just 6.2 percent of California’s population, they make up 34 percent of second-strikers and 44 percent of third-strikers. African-Americans have a 47 percent higher chance of receiving third-strike sentencing than Caucasians.
This disparity often originates at the county level, where the district attorney and judges have prosecutorial and judicial discretion over who receives a strike and who doesn’t.
The opposition to Proposition 36 includes the California District Attorneys Association, the Peace Officers Research Association and Crime Victims United. Marc Klaas, father of Polly Klaas and founder of the KlaasKids Foundation for Children, says that while he initially thought “three strikes” was too broad, his concerns have been addressed in multiple ways.
“‘Three strikes’ is not about the final offense,” says Klaas. “‘Three strikes’ is about criminal history. Each of those individuals had a choice in their life, knowing full well that if they committed another crime they would find themselves in prison for life, but they chose to commit the crime anyway.”
Klaas says the implementation of “three strikes” comes down to the ability of prosecutors to analyze the defendant’s history and determine how to prosecute. This is a system that works, he says. “The only reason for a person to vote for Proposition 36 is if they believe the criminal justice system has broken down,” adds Klaas.
Steve Fabian, a Santa Rosa criminal defense attorney, says that, on the contrary, the criminal justice system is in crisis. He has concerns about the aging striker population. No “three strikes” offenders have been paroled since the law went into effect in 1994.
“When you get old, the likelihood of recidivism starts dropping dramatically,” he says. “We’re warehousing people who are unlikely to commit more crimes. That’s forcing the release of young people who are more likely to commit crimes. How much do we want to spend to lock up someone who’s never committed a violent crime versus having rehabilitation programs?”
If Proposition 36 becomes law, violent criminals like Richard Allen Davis would not qualify for re-sentencing.
“California has the strictest and harshest ‘three strikes’ law in the country,” says Fabian. “The proposition is a minor fine-tuning of the law. If it passes, California would still have the strictest ‘three strikes’ law. It won’t overturn everything, but it will make changes.”
Video-recorded encounter with police prompts a question: How much force is acceptable?
By PAUL PAYNE
The confrontation and video-recorded arrest of an Occidental artist by Santa Rosa police has sparked renewed debate about the use of force by police at a time of widespread public protest and civil disobedience.
The Santa Rosa case involves officers talking to the artist and seeking compliance, but ultimately striking him several times to subdue him.
In a highly visible case at UC Davis, protesters involved in the Occupy Wall Street movement were pepper sprayed while sitting lock-armed on campus. The video of that encounter sparked officer suspensions and public outrage.
Viewers of the video recordings in both cases are now asking just what powers do law enforcement officers have? When can an officer stop, question and detain a person? What is an acceptable level of force?
“Every situation is different,” said Santa Rosa defense attorney and law school professor Richard Ingram. “And often they have to be sorted out by the courts.”
The issue surfaced with the case of Tom Flournoy, 50, who is alleging police brutality in his Sept. 25 arrest near Railroad Square at the end of this year’s Handcar Regatta.
A bystander’s video posted on You Tube shows Flournoy being questioned by Officer Christopher Diaz, who suspected Flournoy of causing a disturbance at a nearby bar.
At one point in the video, Flournoy is thrown to the ground and pummeled by Diaz, who claims Flournoy confronted him and refused to allow him to place him in handcuffs. Flournoy suffered three broken ribs in the encounter, according to the police report.
Flournoy was charged with resisting arrest but his lawyers are asking a judge to dismiss the case on grounds of outrageous governmental conduct.
The next hearing in the case is Jan. 5.
The debate swirling through the community has focused on whether Diaz had just cause to detain Flournoy and whether his use of force was appropriate.
The law says an officer can stop someone and ask for their identification if they have reason to believe they were involved in a crime. It is illegal for someone to walk away from a detention and officers may use reasonable force to stop someone from leaving.
Police Chief Tom Schwedhelm said he won’t comment on the case while it’s under investigation. But he said officers can detain someone suspected of a crime and they are trained to use physical force if they encounter resistance.
“We teach our officers personal body strikes as a way to gain compliance,” Schwedhelm said. “You don’t start there. But it could be appropriate given the totality of the circumstances.” Schwedhelm said no personnel actions have occurred as a result of the Flournoy incident.
Criminal lawyers agree officers can stop someone on the street if they have reason to believe they have broken the law or if they have received a report of a violation.
However, some familiar with the Flournoy case said it was unclear the man had done anything illegal.
In his report, Diaz said he was acting on a report that Flournoy had pushed someone in The Last Day Saloon. However, Flournoy was a block away when Diaz contacted him and told the officer he wasn’t planning on returning to the bar.
Did Officer Diaz have just cause to detain Flournoy?
“It’s not illegal to drink in a bar. It’s not illegal to be rude,” said Charles Applegate, a Santa Rosa criminal defense attorney and former prosecutor. “But it is illegal to hold a man down and beat him until his ribs are broken.”
Another Sonoma County defense attorney, Steve Fabian, described the video as “disturbing.” Fabian said the officer allowed the situation to escalate and then responded too forcefully.
“It appears excessive, Fabian said. “He’s down and there are three officers on top of him. It doesn’t look good.”
Another criminal lawyer who asked not to be identified because of pending cases said Diaz appeared to be acting within the law when he stopped Flournoy, who was reported to have committed a battery.
When Flournoy suddenly faced the officer and threatened his safety, Diaz was correct to grab his arm, push him down and use force to get him into handcuffs, he said.
He said the officer used “distraction blows” and “pain compliance” — widely accepted techniques to overcome resistance.
“The bottom line in police work is you never know when someone is going to pull a gun on you,” the lawyer said.
But others in the legal community said the trend toward physical force by officers appears to be growing. Too often, officers resort to striking people when they could try negotiation, said Applegate.
“Instead of taking a step back they push it until it becomes a brawl,” Applegate said. “They need to learn how to de-escalate a situation.”
Schwedhelm said officers can make mistakes. And they are being filmed more often than ever with the emergence of cell phone cameras.
The department has a new tracking system for complaints. Also, each officer is equipped with an audio recorder to tape interactions with people.
“We have some of the same tools people are using to monitor police activity,” Schwedhelm said. “It’s a two-way street.”
So far in 2011, the Santa Rosa Police Department has received 14 use-of-force complaints. In the department’s internal investigations officers were exonerated in six complaints and four were determined to be unfounded. Two were resolved and two, including the case of Flournoy, remain under investigation.
Police issue warning notices to some Occupy Santa Rosa campers
By MARTIN ESPINOZA and KEVIN McCALLUM
Protesters at Santa Rosa City Hall braced for a police raid Thursday evening after officers issued notices warning those camping on the property without permits that they faced eviction and arrest.
Officers began attaching the notices, which were given to everyone at the Occupy site, to tents shortly before noon and it had a chilling effect on the mood of the camp.
Several protesters removed tents voluntarily while others vowed to stay until they were arrested. During the group’s afternoon General Assembly meeting, 24-year-old activist Carl Patrick urged those gathered not to lose heart.
“We’re not losing. We’re not breaking apart. We’re changing our tactics. We’re changing our direction,” Patrick said. “It’s a good thing.”
The local Occupy demonstration, launched in Santa Rosa on Oct. 15, is similar to now global protests against income inequality. The Santa Rosa protest became a tent city on Oct. 29, when city officials allowed protesters to pitch tents at two City Hall lawns.
Shortly before noon, police officers made their way through the two campsites on the east and west lawns of City Hall property facing First Street. Confused, some of the homeless people who had received permits two days earlier asked why they were getting the “eviction notices.”
Police explained that the notices were not formal eviction letters but rather “information” distributed to everyone, warning of what would happen if campers remained without a permit.
The notices, called “Notice of violations and demand to cease violations,” read in part: “You do not have permission to lodge overnight at City Hall unless you have a valid camping permit issued by the City. You must remove all tents, sleeping bags, tarps cooking facilities and equipment and any other lodging material from City Hall immediately. Your continued use of City Hall property for overnight lodging will subject you to arrest.”
On Tuesday, the city issued permits to 40 people for use at 29 tent sites, even as Occupy Santa Rosa’s General Assembly voted to reject the permit process. The group’s decision-making body accused the city of changing the terms of the permit process that were negotiated last week.
The group objected to the city limiting the number of tents to 57, a move that would have likely forced the eviction of a number of the nearly 100 tents that were present last week. The group also objected to the requirement that camping permit holders post their permit, which contained names and photographs.
City Manager Kathy Millison said the city worked hard to craft a permit program that was fair and safe, but said health and safety issues at the site had gotten out of control.
Even before notices were distributed, Occupiers began breaking down larger communal tents and tarps such as the medical tent, the feeding and welcome station and information booths.
While some Occupy activists said they were not going to take down their tents and were willing to risk arrest, others said they were ready to take a different tactic.
“I’ll come back if they don’t let me camp,” said Louis Smith, a 22-year-old Santa Rosa native who said he spent seven months in Iraq two years ago with the Army’s 1st Battalion, 37th Field Artillery Regiment.
Smith described himself as a “transient” as he packed up his things while police officers watched over the scene.
“I’m just glad that people are standing up for their rights and finally waking up.” he said. “I’ll get some warm clothes and doze off on the steps at night.”
Nick Baker, the program director of Catholic Charities’ Homeless Service Center, walked through the campsite Thursday afternoon, encountering familiar faces, letting people know that they have other options.
“I don’t want to take people who are here for political reasons, exercising their First Amendment rights. I want to take people who are homeless and have no place to go,” Baker said, adding that he was visiting the site as “a concerned citizen.”
The somewhat frantic scene at City Hall Thursday stemmed from a meltdown in what previously had been a mostly cooperative relationship between the city and local occupiers.
Some homeless campers with permits, drawn to the site because it offered them more freedom than shelters, waited for their permitted spots to be unoccupied. In some cases, homeless people camping on the east lawn were given permits for spots on the west lawn that were taken by occupiers.
“I have 19 A and it’s not open,” Debralynne Gould, a homeless woman who received her permit late Tuesday. “I tore the tent down expecting two days ago to move into the space that’s being occupied. So, I’ve been sleeping under a tarp with two shopping carts for walls.”
Jennifer Phillips, assistant city manager, said that people who have permits would be allowed to stay and relocate their tents to the campsite assigned to them.
“And they may stay until Nov. 30,” she said. “That’s the day that the permits expire.”
She said the city has stopped issuing permits. Asked whether the city would renew existing permits beyond Nov. 30, Phillips said that was “undetermined.”
“We continue to be concerned about overcrowding, sanitation and health issues,” she said. “We’re letting people know that if they don’t have a permit they need to leave. Leave means to take down their tents.”
Phillips said that the city would honor people’s right to assemble. She would not say how much time the city was going to give the occupiers to remove their tents before enforcement would begin.
“We’re asking them to do it now,” she said.
Aware police could descend on the camp at any moment, rumors among protesters swirled Thursday. Some said they had spotted SWAT officers entering the city annex across First Street from the site, but that could not be confirmed and there was no action.
During the group’s afternoon meeting, several people strongly those who were planning to get arrested to remain calm and make a statement with their non-violent resistance.
“We need to be disciplined. We need to be completely non-violent,” said Newman Strawbridge.
American Civil Liberties Union attorney Steve Fabian advised protesters who planned to get arrested about the variety of consequences they could face if they were found with weapons, or argued or fought with police.
“It’s a scary situation for you. It’s a scary situation for the police,” Fabian said. “If you’re going to cooperate, let them know that.”