Monday, September 21, 2009

Nathan Ybanez Hearing - Monday February 23, 2009

How does one feel when a moment finally arrives, a moment you’ve been waiting ten years for? How does one feel when a moment arrives on which you have the chance to embark on a whole new journey and chapter to your life, but yet whose outcome lies in the hands of others and you are merely a hopeful passenger? Do you trust in a system that has let you down countless times before, CAN you trust anymore at all? Can you put your undying faith into something that will ultimately decide what happens to you the rest of your life or do you just throw it all to the wind and chance? Did you sleep last night or at all? Are you afraid or are you at peace?

These are all the things I am thinking about on this beautiful glorious morning as I think of you. I wish I could know what you are thinking, what you are feeling, even as I am thinking and feeling everything for you and right along with you. All of us who love and support you and the bigger cause you represent have waited for this day as well, though none more anxiously and nervously than you. We want to say, “this is it, I know this will have a different outcome this time”, we want to feel it with all our hearts and souls, believe it to our core. And no matter how much we DO believe and feel it, there is still that tiny voice of doubt, uncertainty, and fear that lives within us as humans that makes us realize that no matter how much we want something, we can never say 100% for sure that we know what’s going to happen next. Ah, the beauty of the universe, eh?

In Buddhism we learn that in order to achieve true enlightenment we must release and let go, have no attachment to anything whatsoever because everything is an illusion and we have control over nothing in the end except our own actions. Whatever will be, will be, and everything just is what it is. Truer words may have never been spoken, but try telling your human ego in this instance that it cannot have what it so desperately wants, NEEDS, to survive and be free. How do you balance and reconcile within yourself such a fragile fine tightrope between knowing what SHOULD happen, what you feel you DESERVE to have happen, what would be justice in our human realm and courts, and knowing that the Universal Laws and a human, flawed, court system are about to do battle?

If the outcome is not in your favor, does that mean the imperfect, egotistical humans just simply did what they wanted once more and screwed you, or does it mean that this is your true karma and atonement for something in a past life? How will we ever know for sure? Well, that’s just the thing; we won’t. But if we get the answer we ARE hoping for, we’ll all let out the collective breath we’ve been holding for years. All of the doubt and fear that nothing will ever change that we’ve held for so long, all of our despair over The Man sticking it to the little guy for a seeming eternity, we can finally let that all go. With our recent election, the glimmer of hope and a better day have begun to shine. I pray with all my heart on this day that this week is the beginning of a young man’s new life and the continuance of his light.

The tension and anticipation begins to grow in the room; something is about to happen. The deputy is asked to retrieve Nathan from his holding cell. Nathan enters through a side door wearing a red DSCO jumpsuit, his hands cuffed and secured by a chain around his waist. He oh so briefly brightens and silently acknowledges his friend Julie present in the room, a sweet and beautiful young woman who resembles the actress Eva Longoria Parker. I wish he would glance my way so that I could give him a sign, a thumbs up, anything to let him know I’m there. He does not and I have to admit I am disappointed. He seems afraid to look around the room, not wanting for some reason to acknowledge that he has an association with anyone. The judge enters the courtroom. It’s showtime.

Counsel is introduced and preliminary matters are dealt with. One of the expert witnesses is dismissed until the following morning as we will not get to her today. The defense then begins opening statements. Chad Williams, one of the lead defense counsel who quite resembles a young Marlon Brando with his distracted squint and sharp gum chewing, sits by as Mike Gallagher unravels for Nancy Hopf, the District Court Judge in this hearing, Nathan’s past story and background in his previous “trial”. The conflicts of interest and lack of any competent adult assistance for Nathan in 1999 will be made crystal clear during the course of the week. The abuse, the lack of evidence in Nathan’s defense, the lack of ethics, and the speed of which Nathan was tried and convicted, will all be flushed out of the dark closet where they have lain for way too long. Nathan is lucky. That is, if you believe in luck. Most never get another chance like this for redemption. I prefer to see it as divine intervention, his grand date with destiny.

The State then makes their opening statements, mostly stating past “facts” as they view them and that Nathan should not be granted a new trial necessarily based on the fact that he was not advised of his right to appeal.

The first witness for the defense is then called, Kathleen Moore, Chief Appellate Deputy of the Public Defenders Office. Her area of expertise is Class 1 Felonies and she also takes capital cases as an attorney. She has represented 10 men in capital cases, including juveniles.

It is her expert opinion that the standards in Nathan’s case and of Craig Truman not filing a direct appeal for Nathan were “shocking” and never done in a case like this. She then goes on to explain in much greater detail why. The prosecution then cross examines Kathleen Moore more thoroughly on the procedures of direct file appeal. A 15 minute recess is then taken for the court to deal with some other matters that were already on the docket for that morning.

When the hearing resumes, Mike Gallagher calls his next witness for the defense, a one Marcy Glenn. She is an attorney for Hollen & Hart in Denver. She specializes in appellate matters and she is currently the chairperson for the Standing Committee of Professional Conduct & Ethics for the Colorado Supreme Court. There was previously no committee for this and it was necessary to form one in order to bring about much needed rule change and ethics standards regarding attorneys practicing law. A fair amount of time was spent reviewing her resume and practice at Hollen & Hart. She then gave a strong, 3-part expert opinion that it is her belief that there was indeed a conflict of interest in the hiring of Craig Truman as Nathan’s attorney for his trial in 1999. This was then explored in great detail as to why she thought so.

Marcy was then cross examined by the prosecution. The State made numerous attempts to discredit her, in my opinion on minor issues as compared to her expertise and based on the rules of the law. This attorney for the State is basically just your typical dick, in other words, “just doing his job”.

This cross examination continues ad nauseam even after the lunch break, until he has sufficiently beaten the dead horse and ends his questioning at 2:00 pm. Matthew Witner, a police officer with the Douglas County Police Department is then called by the defense. He was a patrol officer in 1998 and took one of the runaway reports on Nathan. An objection is raised by the prosecution as to what is the relevance of again reviewing this document with the officer and questioning him on what the judge can read for herself. The objection is sustained, therefore leaving no questioning for the officer. He is dismissed.

Patrick Sweeney, Child Welfare Manager of the Douglas County Department of Human Services is then called as the next witness. His role is described, as well as his relevant duties. The defense goes over a Child Welfare report form with him that was called in on Nathan on Sept. 29, 1998. Objections are raised over the narrative portion of the document, the prosecution calling this portion heresay, as they did with the police officer’s runaway report. The objection is again sustained and the defense ends their questioning of this witness. The prosecution proceeds to cross, in which they just want to confirm that even though a Child Welfare report was called in, the information presented was not enough to warrant an investigation.

As I sat and listened to the morning and afternoon’s proceedings and heard Craig Truman’s name mentioned more than I cared to hear, I was thinking to myself, “where is this guy now? Can they not haul his ass in here and ask the incompetent boob himself what his fucking problem was in his lack of representation of Nathan?” Well, almost as if on cue, the defense comes out of left field – BLAM! and calls Craig Truman to the stand. There is immediate bantering back and forth between the prosecution and the defense over whether or not he should be allowed to even be called and/or cross examined by the defense. The prosecution objects, the judge overrules and Mr. Truman is called to the stand and sworn in. This turns out to be the most compelling testimony of the day by far. Facts of the previous trial are presented, such as his hiring by Nathan’s father, funds paid to Mr. Truman by Nathan’s father, and the fact that Nathan’s father testified for the prosecution. There was also no guardian ad litem assigned to Nathan, and Mr. Truman admits that he never discussed having one assigned with either Nathan or his father. The defense then proceeds to tear down Mr. Truman on the fact that he did nothing to appeal Nathan’s sentence, inform Nathan of his right to appeal within 45 days of his sentencing, nor did he even respond to Nathan’s eventual letter that Nathan wrote to Mr. Truman asking Mr. Truman to proceed with his appeal. This guy's unbelievable. It would have been faster to ask him what he DID do for Nathan as his attorney.

We took the afternoon break and upon return Mr. Truman explained his belief that had he appealed Nathan’s case and failed, Nathan would not have been able to take advantage of any future changes in the law. He claimed that his decision not to appeal was based on the current trends of the law at the time in sentencing juveniles for these types of crimes. He also admitted that he never obtained the records for Nathan while he was seen at Centennial Peaks by a psychiatrist, nor did he request the Social Services record for the choking incident report in which Roger Ybanez choked Nathan. There were many more points Mr. Gallagher made with Mr. Truman that continuously pointed to his lack of discovery or asking questions at Nathan’s previous trial that would have aided Nathan substantially. Obvious at 5 pm that we would not finish with Mr. Truman in one day, the defense abstains from going onto a new subject and court adjourns for the day.

Having had some unfortunate experience of my own in a courtroom, but watching the proceedings today as an outside observer, I have become so completely aware of how our legal system and its dealings and wranglings by attorneys are somewhat both comical and sports-like. Comical in that what one attorney would LIKE to ask the witness or what one attorney would LIKE to do to opposing counsel must be dealt with in a totally inane, polite, and courteous manner instead of just picking up the nearest legal binder (which believe me, if you’ve ever seen one, could easily kill someone) and crashing it over their head slapstick style because they are answering questions like such a complete idiot and in a lot of cases just out and out lying.

It resembles a sporting event in that the attorneys dance around each other, boxing, bantering, planning their strategy. The spectators look from defense counsel to prosecution as if watching a tennis match in which balls of words are deftly lobbed back and forth. A score for the defense here, an objection sustained for the prosecution there, and on and on. Exhausting and excruciating to watch, not to mention frustrating . I always wish someone in the gallery would suddenly stand up (not me, of course, Lord forbid), scream, and then walk out, reflecting all of our feelings. Court is NOT, for the most part, riveting, interesting, or enthralling entertainment.

On a(not really)unrelated note, for those of you not into astronomy, heads up. There’s a green comet blazing across our universe this month, the Lulin Comet. Tonight and tomorrow night it will be the closest to Earth that it is ever going to get (38 million miles) and is a once in a lifetime event as it will never pass this way again. It is a strange comet, with the tail appearing to be in the front instead of the rear, it rotates clockwise around the Sun instead of counterclockwise like all other planets, and it is green in color (the color is caused from the gases that make up its Jupiter-sized atmosphere. Jets spewing from the comet's nucleus contain cyanogen (CN: a poisonous gas found in many comets) and diatomic carbon (C2). Both substances glow green when illuminated by sunlight in the near-vacuum of space). Once it reaches the sun it will burn up and be gone.

Why am I mentioning this? So glad you asked, as the timing of this comet is something I see to be a sign. Everything really DOES happen for a reason, as much as skeptics and dumbasses out there refuse to acknowledge. There are no accidents or happenings without reason. The fact that this comet is appearing this week, the week of Nathan's hearing I see as nothing short of a miracle. In Buddhism Green Tara is my most revered Tara of all the Taras and also my favorite Bodhisattva. She is known as The Swift One because of her immediate response to those who request her aid. She is also known as The Great Liberator, for she helps to overcome obstacles in whatever form they manifest. So a green meaningless comet or Green Tara? I'll leave you tonight to ponder. Good night.

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