Destroying Lives: LB Criminal Justice System

Part three of this column concluded the story of 72-year-old David Zink’s grand jury inquest following the service of a tainted – and feasibly retaliatory – search warrant (see part two) served six months earlier by the Long Beach Police Department’s narcotic squad.

It described LBPD accounting discrepancies related to the $12,000 seized from Zink that he had saved for dental work and home repairs and detailed the unchallenged testimony surrounding kitchen, camping and furniture materials imagined by LBPD narcotic officers as capable of being used to construct a clandestine laboratory to manufacture – at grave danger to public safety – a cannabis extract commonly branded as Butane Honey Oil (BHO).

By the time prosecutors Amy Wilton and William Vance Davis finished presenting their one-sided case, the grand jury had been hammered with the phrase “Butane Honey Oil” a total of 80 times – and not once was scientific laboratory evidence presented to establish that the (legal-to-possess) Cannabis based THC liquid seized from Zink’s home (his medicine) was manufactured using the illegal BHO extraction method.

When the indictment was handed down on May 27, 2015 charging Zink with one count of manufacturing BHO, the prosecutors requested $75,000 bail to be imposed upon the elderly medical marijuana (MMJ) patient who had lived in Long Beach for 49 years, whose only arrest –14 years ago – was thrown out of court (see part one) and who owned his own home.

Unable to obtain a mortgage loan because of needed home repairs and the court’s earlier refusal to return his savings during the six months of police and prosecutorial silence following the raid, Zink borrowed $6,000 from friends to obtain a bail bond that would expire in one year.

Broke and on the edge of homelessness, Zink was then forced to endure the predictable criminal justice system shuffle that assigned three different public defenders to represent him during 12 court appearances over the next 12 months.

During that period – with little accomplished – another $6,000 became due to renew his bail bond and neither the public defender, prosecutor or the judge ever acknowledged that Zink never missed a single court appearance. But, at the end of each those 12 appearances, the judge still ordered Zink’s custody status to remain: bail to stand.

 It was at this point that Zink’s aged sister was able to accumulate sufficient funds to loan him $15,000 – the amount needed to engage the pre-trial services of Long Beach defense attorney, Matthew Kaestner.

On June 22, 2016 Kaestner made his first appearance in Superior Court Judge Laura L. Laeseke’s courtroom. It would take until January 10, 2017 for his advocacy to end the Long Beach criminal justice system’s assault on Zink.

Kaestner’s first move was to research the differences between tinctures, Simpson Oil and BHO. He came to understand that if it could be shown that the THC liquid found in Zink’s home was not made using the BHO method – as Zink insisted – the prosecution could not prove that the brown liquid seized was not a legal tincture.

Court records show that Kaestner then solicited the prosecutor, DDA Amy Wilton, to ask Greg Gossage, the LBPD forensic scientist (who testified at the Grand Jury inquest) to test the oil to determine if in fact the dark viscous liquid recovered from Zink’s home was made using the butane (honey-colored) extraction method.

Days later, DDA Wilton told Kaestner that the LBPD scientist said that his laboratory was not equipped to carry out that kind of testing – a clear indication as to why evidence testing related to the manufacturing process was avoided in testimony before the grand jury. So, Kaestner took the next step and searched for a laboratory that could do the job.

His quest ended at SC Labs in Santa Ana – advertised as the medical cannabis industry’s most trusted cannabis testing lab that “offers collectives and concentrate manufactures a residual solvent test … that ”uses gas chromatography/FID, head-space analysis, and mass spectrometry … to identify all of the most commonly used solvents … in the process of extracting cannabinoids, including: butane.”

Armed with a laboratory that could prove his client’s innocence, Kaestner obtained a court order from Judge Laeseke directing the LBPD to provide “splits and samples of the THC oil in evidence….” and to provide that “a representative of SC Labs may take a sample of .5 to .9 milliliters from each of the jars in evidence for testing for the presence of a solvent (butane). Kaestner’s request was unopposed by the district attorney.

But when the court order was served, and Kaestner called to make arrangements for the transfer of the small samples of cannabis oil, LBPD’s Randall Beach, the lead narcotic detective – and self-described BHO expert – spurned the court order saying that he would not release the “split” ordered samples without a “form 22 from a DEA licensed facility” – a form routinely used by the DEA to monitor large scale movement of drugs among health care providers that has nothing to do with the routine – and common – practice of court-ordered “split” testing.

When asked about the position taken by Detective Beach (and city hall), Judge Jim Gray, a former federal prosecutor and retired Orange County superior court judge said, “in my experience it is quite common for a sample of contraband or other forensic evidence to be “split” and tested by labs for both the prosecution and the defense…. To the degree that this standard procedure was even opposed in this matter would raise eyebrows and set it apart from the norm.”

Retired Los Angeles Sheriff’s deputy and drug enforcement expert, Nick Morrow, confirming Judge Gray’s statement, said, “Split testing is legal and common in criminal cases. It allows the defense to competently and independently evaluate the evidence against a criminal defendant.”

But, apparently Beach and his city attorney defenders understood the gravity of Kaestner’s independent laboratory threat to the validity of the so-called “expert testimony” that Beach and his drug squad comrades offered not only in Zink’s case but in hundreds – if not thousands – of past and current drug cases. The independent lab testing could serve to undo a great deal more than just the Zink case. They dug in with the “form 22” pretext and stuck to it.

Kaestner next heard through the courthouse grapevine that Detective Beach and the Long Beach City Attorney’s office – that had zero standing in the case – had somehow got the D.A. to set a hearing to petition the judge to quash her own order – without any kind of written motion being filed with the court.

 Kaestner countered the potential harm to his client by quickly filing a motion: “OPPOSITION TO RUMORED MOTION TO QUASH COURT ORDER FOR RELEASE OF EVIDENCE FOR INDEPENDENT TESTING.” The motion contained 20 pages of brilliant argument, exhibits, affidavits and supporting documents.

Kaestner’s written opposition to the “rumored motion” was the only document filed for Judge Laeseke to consider on the morning all parties arrived for the hearing.

This writer was present in the courtroom that day and made the following observations:

Judge Laeseke is not on the bench.

Zink and Kaestner arrive. Zink takes a seat in the audience. Kaestner sits at the defense table.

Detective Beach and LBPD forensic scientist Gregory Gossage and two other males enter together. Gossage and his companions sit at the back of the courtroom. Beach takes a seat in the jury box.

DDA William Vance Davis arrives, asks Kaestner to join him in the attorney conference room. They exit the courtroom. Beach and Gossage trade a knowing glance.

Deputy City Attorney Arturo Sanchez, arrives, has a short conversation with Gossage, walks though the rail, trades a nod with Beach and approaches the court clerk. After a short conversation the court clerk escorts the deputy city attorney back to the judge’s chambers. The court clerk returns to his desk.

15 minutes after going into the judge’s chambers, Sanchez reenters the courtroom, walks toward the rail, trades a positive nod with Beach, who is still in the jury box, and takes a seat at the back of the courtroom near Gossage.

After a one-minute wait Detective Beach gets up, crosses the courtroom, walks directly past the court clerk and enters the judge’s chambers, unescorted.

Kaestner enters the courtroom, asks Zink to join him in the attorney conference room for a meeting with the prosecutor, William Vance Davis. They exit the courtroom. Sanchez and Gossage trade a knowing nod.

10 minutes after going into the judge’s chambers Beach re-enters from the judge’s chambers and takes a seat at the back of the courtroom with Gossage and Sanchez.

A few minutes later, Zink, Kaestner and Davis re-enter the courtroom. Davis gives Gossage, Beach and Sanchez a perceptible negative headshake. Their expectant expressions turn to disappointment.

Zink and Kaestner take a seat at the defense table.

Davis takes a seat at the prosecutor’s table. Beach joins him.

Sanchez, with no standing in the matter, walks past the rail and stands behind Kaestner and Zink.

Judge Laeseke enters, takes the bench and following procedural remarks begin the hearing:

Judge Laeseke: “I know there have been some discussions before you guys came and sat down. Is there anything I need to know before we launch into this discussion? Did we work anything out?”

Mr. Vance: “Well your honor, I have been given authority by Assistant Head Deputy John Gilligan to tender an offer to Mr. Zink. It would be a count two of 11356.5 (A) Health and Safety Code. It is a misdemeanor. It would be time served. No probation. Mr. Zink could have the U.S. currency, the parts that were not counterfeit, returned to him. It’s my understanding that Mr. Zink has declined the offer.”

Clearly, a man looking down the barrel of seven years in prison and a $50,000 fine refusing to accept the prosecutions generous offer was – in their minds – an act of insanity.

When asked about the offer, Zink said, “I said no because I was not guilty and if I took a plea to a misdemeanor I had been advised that I would have no civil recourse against the city. I knew I couldn’t afford to go to trial because I’d have to come up with another $7,500 in attorney fees that I didn’t have. But, I still wasn’t about to let these (expletive) get away without some consequences.

With the collaborator’s plea strategy to avoid the hearing in the toilet, they proceeded with the hearing to quash. Kaestner argued for the test by an independent laboratory citing compelling case law, the fact that the miniscule amount of the substance to be tested was controlled by the court not the LBPD, that the “form 22” argument was nonsense, stating that, “it’s a complete 100 percent, not 99 percent, 100 percent straw man to now say, ‘Oh, we don’t want the Long Beach Police department to lose their license or the lab to lose their license. The lab has nothing to do with this….’ and that, “if it turns out that this scientific test shows that there is no butane, then you just may end up with evidence that they probably should have suspected that, just based on the visual observation and material, this was not a good indictment.

“I want to have a (independent) physical test that I can attach to my (995) motion to say, ‘hey look; they said BHO 80 times to this grand jury.’ In fact, here’s the test that they … should have done before they said that, and I’m asking you to quash this grand jury indictment.”

The district attorney, who did not oppose the original order for the LBPD to produce the “split,” proceeded to argue – with no motion filed – on behalf of the city and then invited Sanchez – and as a friend of the court – to weigh in, which he did adding to their already defective – and laughable – argument that if Detective Beach complied he would be exposed to prosecution by the federal government. Then Sanchez told the court that Gossage had “looked around and learned that the sheriff’s lab can run the test.”

After 33 pages of transcribed argument, Judge Laeseke sided with those she met with prior to the hearing and quashed her own motion without a written motion from the prosecution and without a party with standing to advance the reversal.

Kaestner entered into a final dialogue with the judge:

Kaestner: “Then the court, I think, needs to make an order. I can’t make them test this with the sheriff’s department. I think the court, in light of its ruling today, needs to make an order.”

Judge Laeseke: “Are you asking me to have the sheriff’s department test it?”

Kaestner: “I am indeed.”

Judge Laeseke: “There we go. Mr. Davis, please provide a sample vis-à-vis to the sheriff’s department and ask for the test to be conducted.”

Six weeks later the sheriff’s laboratory test was completed. What the prosecution and LBPD “experts” had pounded into grand jurors heads 80 times as being BHO was in fact what Zink had all along insisted it was – his medicine, Simpson Oil.

The laboratory test made it crystal clear that the LBPD narcotic officers – in collusion with the prosecutors – had perjured themselves at the secret grand jury inquest in order to obtain a felony indictment against Zink. It was also clear that Kaestner’s cross-examination would expose all of it if the case went to jury trial.

But that would not happen. Our community’s law enforcment representatives continued to protect their self interest. The Long Beach District Attorney’s office approved another plea bargain.

But DDA’s Wilton or Davis did not tender it. A prosecutor who knew little to nothing about the case appeared to make the offer: An infraction – possession of a synthetic cannaboid – to be expunged in six months – no probation – and an to order return Zink’s money and personal property.

In spite of the fact that there was no synthetic cannaboid found in his home, Mr. Zink was out of emotional gas and out of money. He gave the state their ounce of flesh and plead no contest. The judge declared him guilty of the infraction and Zink walked out of the courtroom free, but physically, psychologically and financially shattered by a callous, broken and corrupted system that has lost its sanity in its continuing quest to win the state’s pointless war on selected drugs – all while keeping their recap in the “win” column.

A handwritten note found in Kaestner’s file on the Zink case bore a phone number belonging to Deputy City Attorney Sanchez. It revealed that Kaestner had called and questioned Sanchez about the ex-parte visits he and Detective Beach had with Judge Laeseke prior to the hearing to quash his motion. The note read: “Sanchez – I just went in to say hi to Judge Laeseke and heard Beach ask (the) clerk if the judge had time for a warrant.”

I personally never saw Beach speak to the clerk that day. I also don’t believe that it takes 15 minutes to, “just say hi.”

Retired Superior Court Judge Jim Gray had this to say about the visits in chambers by Sanchez and Beach: “To the degree that any party to the matter before the court had ex parte contact with the trial court judge, i.e. without the presence or even knowledge of the defense, under any context I can imagine that would simply be improper by everyone concerned. Either some plausible explanation should be provided, or there should be a neutral inquiry as to what happened and why.”

I vote for a neutral inquiry into all of it. Question is: Who will step up?

Stephen Downing is a resident of Long Beach and a retired LAPD deputy chief of police.

stephen@beachcomber.news