Bikelash PART VII (c): Kangaroo Court, Concluded

On the morning of March 29, 2012, while riding my bicycle, I hit and killed a man who was crossing the street.

This is not a story of who was at fault, though at first it seemed that way.

We all share a critical responsibility when we go out into the world: the duty to keep one another safe. I failed in that responsibility and, as a result, we will never get back the life of Sutchi Hui. Words cannot adequately express how sorry I am for his death and for the loss to his family. I carry that sorrow with me every day.

This story is about what happened after the accident—and it’s a story that happens all too often: High-profile cases get tried not in courtrooms, but on TV and the internet. Media fans the flames, the public quickly passes judgment, and elected officials bend the system to secure political wins—at the expense of due process and fair outcomes.

The narrative is based on court transcripts, newspaper and online articles, television broadcasts, and extensive notes and journal entries I made in the months after the accident. To protect the privacy of others, I changed some names. All else is true to my memory of what happened.

I am sharing this not for redemption or personal profit, but because this side of the story rarely gets told. To make sure our justice system treats all defendants fairly, we need to speak up when it doesn’t.

I’m Chris Bucchere.

And this is Bikelash.

PART VII (c): Kangaroo Court, Concluded

CHAPTER FIFTY-NINE

7 March 2013—343 days since the accident

The very next morning, I experienced a moment of déjà vu as almost the same cast of characters—Ted, Julie, Fred, and now PI John Mason—huddled with me in the Hall of Justice. Everyone sported a slightly different look—suits of slightly different colors, different shirts, different colored ties—but aside from that, everything felt just like it had the day before. I maintained a pretty high level of confidence that once we settled the existential debate over the traffic light—and once Judge Cheng acknowledged that traffic light—he would find me not at fault in this accident and either outright dismiss the ridiculous charges based on false testimony, or, worst case, knock the charges down to a misdemeanor.

My confidence was shaken a bit when I realized we had a major problem on our hands: No media had turned out for day two of the PX—no antenna trucks, no camera crews, no microphones. Normally, I would have appreciated this, but today was the day our PI would present incontrovertible video evidence, and the media weren’t going to be here to see it. Ted would deliver an eloquent closing argument that would convince Judge Cheng to let me walk. But the media wouldn’t be there to hear that either, so they wouldn’t report on it, thereby missing the opportunity, for the first time, to tell the other side of this story.

Julie and I gave a quick pep talk to Ted and asked him to slow down, way, way down. The accident is complicated; everything in the video happens so fast, you’ve gotta walk the judge through this slowly, methodically; make sure it all sinks in, we begged. Ted took it well, even though he had at least fifteen years more relevant experience in these matters than anybody else in the huddle.

After one delay and another, the bailiff finally called court into session. “All right. Are we ready for your first witness?” asked Judge Cheng.

“We are, Your Honor. We call John Mason,” Ted said, but while echoes of the name still reverberated in the courtroom, Omid spoke up, sounding perturbed.

“I do want to make a record that the first time I ever heard the name John Mason was seconds ago when Mr. Cassman called his witness,” he said.

“That’s true,” Ted replied, as I suddenly remembered that Ted had agreed to call Omid with the name of our one and only witness. “I forgot to call him last night.”

“All right,” said Judge Cheng, and, without further ado, the court swore in our private investigator.

“Mr. Mason, how are you employed?” Ted asked.

“I’m a private investigator,” John replied.

“And are you licensed with the State of California?”

“Yes.”

“Last night, did you go to the intersection of Castro Street and Market Street?”

“Yes.”

“Where specifically did you go?”

“I was standing beneath the sign for Twin Peaks Tavern, beneath and slightly to the right on the sidewalk.”

“Do you know what corner of the street that is?”

“Yeah. That’s where Castro meets 17th and just before it meets Market Street.”

“Okay. So it’s the southeast corner?”

“Objection. Leading,” interjected Omid.

He can object all he wants, I thought, but nothing is going to stop Ted and John from proving the obvious.

“Sustained,” said Judge Cheng.

“So, do you know what corner?” asked Ted.

“Yes. The compass direction would be the southeast corner,” John said calmly. He didn’t need Ted to ask leading questions; he already knew the obvious—the light in question was one of six that work in tandem to control traffic at Market and Castro. Ted wanted to make sure there couldn’t be even a shadow of doubt.

“Of Market [and] Castro?” asked Ted.

“Yes.”

Ted showed John a photograph (Defense Exhibit E) taken from under the Twin Peaks Tavern sign, just below where the 360-degree security camera was mounted. John perfunctorily identified the photo and the traffic light contained there. Everyone—even Nathan Pollak, Mahoney, Omid, and maybe even his boss Sharon and her boss George—knew about the traffic light. But of course Mahoney, in his expert opinion, had tried to explain to the court how this traffic signal controlled traffic somewhere else other than the very intersection in which was located. This game of hide-the-traffic-light ended here.

“Were you able to determine the direction of traffic that is controlled by that traffic signal?” asked Ted.

“Yes. Northbound traffic on Castro,” said John, matter-of-factly.

“So it controls the traffic that’s flowing from south to north on Castro, through the intersection at Market Street?” Ted asked, restating John’s testimony almost word for word.

“Objection. Leading, misstates the testimony,” Omid spoke up, trying to derail a truth train that was very much still on track. Strangely, Judge Cheng cooperated.

“Sustained as to leading,” the judge said.

“So, I thought I was just repeating his testimony, Your Honor,” Ted said, sounding exasperated. “I’ll try again.”

“So, what traffic flow does it control?”

“Northbound traffic from Castro.”

“And does it control it as northbound traffic at Castro approaches an intersection?”

“Yes.”

“And what intersection is that?”

“Market and Castro.”

“Okay. So to be clear, the signal that’s depicted in Defense Exhibit E and that you saw last night controls northbound traffic on Castro Street as it approaches Market Street?”

“Yes.”

“How were you able to determine that?”

“By observation. When the light turned red, traffic moving in the northbound direction stopped, and the traffic on Market Street, after a brief pause, would pick up and move in an east or west direction.”

“And what happened when the traffic signal depicted in Defense Exhibit E and that you saw last night turned green?”

“Then traffic would begin to flow northbound and southbound on Castro.”

“You noticed that when the traffic light you saw last night and is depicted in Defense Exhibit E turned green, that traffic on Castro Street flowed simultaneously both northbound and southbound?”

“Yes.”

“Did you take a video of the scene?”

“Yes.”

Defendant’s Exhibit F, a thumb drive containing a video, was brought before the court. “Your Honor, we have the video. We were rushed last night so it’s actually on a USB drive,” Ted said.

“Also, for the record,” Omid said, “Mr. Cassman first told me about this video about ninety seconds before the Court came out, didn’t tell me about this last night. When we had a conference at sidebar, there was no mention that this video would be taking place.” Omid sounded like someone had taken away his candy. “I just want to make that record,” he added—unnecessarily, because the stenographer had already done so.

“All right,” said Judge Cheng, this time more sternly than the last. “It’s noted for the record. You may proceed.”

“And, Your Honor, I also offered to give him five minutes to look at it and he said, no, this morning,” said Ted.

I suspected that Omid refused just so that he could make this on-the-record objection to distract the court from the important part: the contents of the video that proved the relevance of the traffic signal.

“So playing for you what’s been marked as Defense Exhibit F, do you see a still photograph that’s up on the screen?” Ted asked.

“Yes.” John Mason responded.

“And can you tell us what that depicts?”

Ted and John continued their back-and-forth until what was was already obvious became abundantly clear. The traffic signal in the intersection controlled traffic in the intersection.

You can’t make this stuff up!

As the court called for a cross-examination, I wondered what on earth Omid was going to ask John. What sort of stunt will he try to pull? Will he ask about John being on Ted’s (or, ultimately, my) payroll? Will he insist that his expert somehow knows more than ours? Or will he ask something so outlandish that I can’t even imagine what it might be? I feared the worst.

“Please,” Omid said to John, sounding disgusted. “You can take a seat.”

“The video was taken last night, correct?” Omid asked.

“Yes.”

“Not March 29th of last year, correct?”

“Yes.”

“Not at any point in the entire year of 2012, correct?”

“Correct.”

“It was taken conservatively eleven months after the date of the incident; is that correct?”

“Yes.”

So what’s he gonna do—say that plate tectonics moved the traffic light to some other part of the city in the past eleven months? Nothing was beyond absurdity with these people. Thankfully, Omid moved on to a more predictable line of questioning.

“You’ve never been certified as an accident reconstruction expert, have you?”

“No.”

“You don’t have extensive training in accident reconstruction, do you?”

“No.”

“Do you have training in traffic, specifically investigation?”

“No.” Omid had asked the same question three times, but before I had time to get mad, he moved on.

“When you did this little video, was Mr. Cassman there with you?” Omid shook his finger at Ted, Julie, and me, using “little” in the most pejorative way possible.

“Yes.”

“Objection to the question, Your Honor. Argumentative,” said Ted. The question wasn’t even really that argumentative, but Omid’s tone tipped the scales.

“Overruled,” said the judge.

“Mr. Cassman was with you?” Omid said, like it was some kind of accusation, not a question.

“Yes,” said John.

“And Mr. Cassman was having a conversation with you?”

“Not while I was taking the video.”

“Okay. Before the video was taken, you guys were discussing this case, correct?

“Yes.”

“He was telling you what he wanted you to do, correct?”

“Yes.”

“He was telling you what he wanted you to specifically look for, right?”

“Yes.”

“And because he told you that, then you made a point to look for certain things, correct?”

“Yes.”

“And that the light that’s depicted I think in People’s E—”

“Defense Exhibit E,” Ted interjected.

“Defense E, that controls northbound traffic on Castro Street, correct?” asked Omid.

“Yes.”

“In addition to Mr. Cassman being with you, who else was with you?”

“Julie Salamon.”

“So, was she also having conversations with you before the video was taken about this case?”

“Perhaps, but probably to a lesser degree than Ted.”

“It’s fair to say that both of them were having conversations with you specifically about what they wanted you to look for, right?”

“Yes.”

“I have nothing further.”

“Any redirect?” asked Judge Cheng.

“Nothing, Your Honor,” said Ted.

Omid had steered clear of the important assertion that John Mason made about the traffic light by nibbling around the edges—Mason’s qualifications, the passage of time between the accident and the video he took, and that my attorneys had instructed him to do what he had done at Market and Castro the previous night. John held up pretty well. There were scant few people in the courtroom that day—nothing like the day before—yet I didn’t think anyone doubted that the traffic light Mahoney tried to deny out of existence fired in exact sequence with the same light the DA was accusing me of running.

As far as I could tell, the phase of calling witnesses had ended, and the closing arguments were about to begin. Based on the rules of engagement, Ted’s closing argument came first. I sat up in my chair and inched forward, the sweat on my back causing my shirt and sport coat to stick to the back of the seat.

This is it, I thought. The crazy train stops here.

CHAPTER SIXTY

7 March 2013—343 days since the accident

As we closed in on the one-year anniversary of the fateful accident, the world had heard nothing but the DA’s and the police’s side of the story—along with an even more outrageous version that the media had simply willed into existence. With each passing moment, this story grew more and more disconnected from the events that actually took place on March 29.

Meanwhile, the story also became more predictable: I rode my bike recklessly—speeding through three red lights and a stop sign, trying to set a new land speed record on Strava—then raced home to brag about it and make a YouTube video weighing the value of the deceased’s life against a bike helmet—or other such nonsense. Until now, that was the prevailing storyline that had dominated the local, national, and international press, and I could do nothing to stop it. Not unless I wanted to lose the best criminal defense attorney in the Bay Area.

Outside of that attorney and maybe a dozen other people, no one even knew about the existence of any other story. But now, finally, Ted would stand at the podium and lay all of his cards on the table. In a few moments, he would explain how the witnesses Wen-chih Yu and Angelo Cilia in the crosswalk, “expert” Michael Mahoney, and witness Nathan Pollak—the man behind the lies that enabled the DA to bring felony charges in the first place—were all clearly and directly contradicted by the video, an incontrovertible piece of evidence that the prosecution themselves obtained and admitted into evidence to use against me.

Before John Mason had even cleared the well, the court had already started making sure that all the evidence was moved in and dealing with other procedural matters. What had been a slow and painful process suddenly started moving very quickly. I blinked—or so it seemed—and Ted had already begun his closing argument.

“Your Honor, I’m going to be playing the video a lot because I think it’s very important for the Court. I’m going to be asking the Court to make findings. I know it’s unusual but I think it’s more than merited in this case given the nature of the evidence that was presented from the prosecution’s expert.

“And I’m hopeful that the Court’s going to be able to see it but if not, I’m going to ask two things. Could we take a few minutes to move our table—hopefully a little closer, so that the image will be sharper?”

“Well, I don’t have a problem with your using the video to illustrate your argument,” said Judge Cheng. “In terms of making factual findings, I’m not sure that’s appropriate. It’s a limited task here, but if it will assist your argument, go ahead and play it. If I have difficulty seeing what you’re mentioning, then I’ll let you know.” Again, the judge gave the unmistakable impression that he couldn’t care less about what was happening in his courtroom.

I found this baffling, because Ted was about to disprove the prosecution’s entire case. Trying to get the court to make findings could be a long shot, but it was worth a try. We all felt like we deserved a little sympathy after hearing nothing but the litany of lies the DA’s office had fed to the media and put forth in the courtroom the day before.

“Okay. I’m just going to move the table over a little bit to try to make the image sharper,” said Ted.

“That’s fine,” said the judge.

“Judge Cheng,” Ted continued, “I’ve been doing this for thirty years now. And in that experience, vehicular manslaughter cases are well among the very saddest that I see come into the criminal justice system. And I’m sure you’ve had experience with them, too. They have horrendous consequences for the family, for the deceased, obviously, for those who care and loved him. The consequences are the same as murder, the same as murder, and we understand that. And our hearts go out to the family of Mr. Hui and I know that Chris’s heart goes out to the family.”

As Ted said those words, I thought about the Hui family, as I had done thousands of times before. How would it change their already profound loss if—after all the horrible things they read and watched ostensibly about me—I was found not to be at fault in the accident?

With all the time, money, and effort I had poured into defending myself from these baseless allegations, it was easy to forget something really important: A man died here. If only we could focus on that tragic loss, on making sure the family got compensated through insurance, and perhaps on making Market and Castro and other big, dangerous intersections safer for all parties who want and need to use them.

But these ideas would have to wait for after my exoneration. Ted continued with his closing argument.

“But, on the other hand, the conduct that is in question is very dissimilar from that involved in a murder case. The conduct is so much less severe. And the man who’s accused of committing that conduct is just frankly a very good man with no prior contacts with the criminal justice system of any kind, and certainly that’s true here. That’s the emotional dichotomy that is presented in a case like this and, nevertheless, it requires a legal examination with a certain amount of detachment and that’s what we’re requesting of the Court today: to examine the facts closely, to consider the evidence, and to make a ruling that serves justice.

“Has the prosecution presented sufficient evidence for a finding of probable cause that Mr. Bucchere was grossly negligent? The answer is no.

“And I want to start by addressing the questions that the prosecution’s expert Mr. Mahoney addressed. I realize that Mr. Mahoney—and I want to emphasize to the Court—answered them without having realized that the traffic signal that controls northbound traffic on Castro Street was right in front of him. There was no need to make assumptions about when the light turned red and when the walk signal became WALK for pedestrians. There was no need for him to infer from people’s actions in the crosswalk when the WALK signal turned on. There was no need for any speculation or assumption or inference of any kind. The evidence, objective evidence as he admitted on the stand once he saw that light, is that it turned red at 8:02:14—at 8:02:14 by the timer on the videotape.”

Ted walked over to the easel and wrote: “8:02:14 red light” in bold red letters.

“So, we don’t need to assume anything. The Court has the video and we know for a fact when the light turned red. So the first question that Mr. Mahoney addressed: Was the light red when Mr. Bucchere entered the intersection? The facts establish the following. The traffic signal in the upper left-hand corner of the top screen of People’s Number Two controls traffic running northbound on Castro Street.

“Your Honor, we’re starting the tape at 8:00:10. It’s now up to 8:00:11. Your Honor can see that the light in the upper left-hand corner of the upper screen of People’s Number Two is green and that traffic is flowing north on Castro Street. Your Honor can see that it turned yellow and red, that a car stops northbound on Castro Street and that traffic commences east-west on Market Street after a short delay. Your Honor sees that at about 8:01:45, the light turns green, traffic starts moving north on Castro Street, and also southbound on Castro Street in the upper left-hand corner.

“And let’s stop it now.

“So there is no doubt. I ask for a finding from the Court that the traffic signal in the upper left-hand corner of People’s Exhibit Number Two controls traffic flow for northbound and southbound on Castro Street.

“Now, at 8:02:06, which is where we are now, the light is green. And as the Court can see, at 8:02:11, it turns yellow and at 8:02:14—stop it—at 8:02:14, it turned red. Would the Court like me to replay that?”

“No,” said Judge Cheng.

Weird, I thought. The expert Michael Mahoney and Nathan Pollak both had to get up and walk over to the video screen in order to see the “hidden” traffic signal, but Judge Cheng has no trouble seeing it at all. Either he has incredibly good vision or he doesn’t care that Ted is taking apart the prosecution’s entire case.

“I want to continue to play it and ask the Court to focus on the upper right-hand portion of the screen, but before we do, I’ll note that pedestrians are clearly depicted in the crosswalk at 8:02:16. And I ask the Court please observe traffic westbound on Market Street. Stop.

“Traffic westbound on Market Street commenced moving three or four seconds after that light turned red. That’s a critical point for the Court to consider. We had an expert who attempted to make assumptions based on pedestrian traffic in the crosswalk on Castro Street. However, he ignored the fact that there was traffic eastbound on Market Street that did not move until three to four seconds after the accident. There is only one explanation for that: The all red for three and a half seconds after the light turned red had not ceased until at least 8:02:17.5 and hence, the all red was in effect until that time and that’s why traffic—in rush hour traffic at 8:00 in the morning on a workday did not commence to move. That’s the only explanation.

“We don’t need to speculate here based on what rush hour pedestrians who are trying to catch a MUNI bus, heading for the MUNI station across the street, are doing and why they’re doing it.”

In as many words, Ted said that eight pedestrians had grossly jumped into the crosswalk against a DON’T WALK symbol.

Now we’re getting somewhere.

“Now, what we do know from Mr. Mahoney is that at 8:02:14, Mr. Bucchere’s head was visible within the intersection on Market Street. I have the exhibit. May I bring it to Your Honor?”

“Yes,” said Judge Cheng. I had half expected him to say, “No, don’t bother.”

“May I point to it?” asked Ted. “I had Mr. Mahoney circle Mr. Bucchere’s head as he was proceeding through Market Street. At 8:02:14, the light controlling traffic northbound on Castro Street turned red and Mr. Bucchere was in the intersection. Mr. Mahoney’s expert opinion that the light was red for six and a half seconds before the point of impact is patently incorrect.

“So, Your Honor, we have demonstrated beyond any doubt, reasonable or otherwise—and we have no burden—but we have demonstrated beyond any doubt that Mr. Bucchere did not run the red light, and that comes from the prosecution’s expert with his own eyes who missed the most important fact in the case: the traffic signal in the upper left-hand corner of People’s Number Two [the surveillance video from Twin Peaks Tavern].

“I want to talk a minute about Nathan Pollak. I know that the Court’s not going to weigh credibility of witnesses, that’s not your job here, that’s not the role you play in these proceedings. I understand that. But you must weigh the evidence and you must consider what’s reasonable or even possible and what’s flatly contradicted.

“In this case, putting aside his inappropriate and disrespectful demeanor and his willingness to lie apparently under oath when confronted with the fact that he was watching a video and first wanted to say no, putting aside that, People’s Number Two [the video] flatly contradicts his testimony and proves that it is false.

“Julie, let’s roll the video. We’re at 8:02:14, Your Honor, and you see one vehicle in the upper left-hand corner approaching. Were you able to see that?”

“Yes,” said the judge.

“Okay. Great.

“And then at 8:02:20, you see the bicycle go down in the upper left-hand corner? And at 8:02:25—keep going. 8:02:32, a second vehicle appears to approach the intersection southbound on Castro Street. 8:02:38, a third vehicle appears which—stop it. Mr. Pollak identified that as his vehicle when he didn’t realize that it was thirty seconds after the accident. Keep going.

“That vehicle that we just saw pull into the number two lane on the lower screen, he identified it as his vehicle initially. Watch the light up here. It turns green, light in the upper left-hand corner. Traffic starts to proceed north and southbound on Castro Street. We see the first sedan that came up to the intersection. We see Mr. Pollak’s [Honda] Element in the number two lane and we see the second vehicle that had arrived at the intersection proceed.

“Your Honor, the evidence in this case demonstrates beyond any doubt that when Mr. Pollak said that he stopped at the intersection as Mr. Bucchere was slightly behind his vehicle, that’s wrong. And when he—the video showed us—when he said that Mr. Bucchere whizzed by his car as he was stopped at the intersection, that’s wrong. The video proves it. When he said that the second bicyclist came down and stopped alongside him at the intersection while he, Mr. Pollak, was parked there or stopped there, that was wrong. The video proves it. And if the Court has any question about that last point, I would like to replay the video at about 8:02:20 again.”

“That won’t be necessary,” said Judge Cheng.

My feeling of confidence in Ted—my feeling that finally he was cutting through the layers to arrive at the heart of the matter—was profound, but also a bit dampened by the fact that Judge Cheng was acting like he either had seen all of this before or that he just didn’t care. Or maybe it was both.

“At 8:02:14—and if the Court has any question of this, I would like to try to have you replay it or ask to have it plugged into your own computer so that you can look at it yourself. I urge you to do that.”

But the court, represented by the Honorable Judge Cheng, didn’t even dignify Ted’s urging with a response.

Ted continued: “At 8:02:14, Mr. Bucchere had entered the intersection, the light turned red. Later, three vehicles approached the Market Street intersection southbound on Castro Street. The third vehicle was Mr. Pollak’s Honda Element. He admitted it on the stand before he realized that that happened at 8:02:47 according to the video, which is thirty seconds after the accident, after the accident. The video proves it, Your Honor. Mr. Pollak was wrong; he was flat wrong.

“The video proves that Mr. Bucchere did not run the red. Certainly there’s no reliable evidence in front of this court that he did and I’m asking the Court to make that finding.

“The second question addressed by Mr. Mahoney was whether the WALK signal illuminated for east and westbound pedestrians before the accident? I’ll just briefly review the evidence that we know.

“8:02:14, the light controlling traffic northbound on Castro Street turns red. We know from the traffic sequence control report that there’s a three and a half second all red. That means that until at least 8:02:17, probably 8:02:17.5 according to Mr. Mahoney, the WALK signal east and westbound on Castro Street did not illuminate.

“Now, the witnesses that the Court heard from told a different story and I want to suggest to the Court again this is not an issue of credibility. I’m sure they were doing the best they can and I’m sure they tried to tell the truth as they remember it.

“Ms. Woo, who was the prosecution’s first witness—I’m sorry. Excuse me, thank you. Ms. Yu, Y-U, she testified that she entered the crosswalk when the white hand illuminated. The video absolutely proves otherwise. She entered the crosswalk—first of all, she admitted she was actually standing in the crosswalk in the lane in front of the bus on the east side of the street the entire time but that at 8:02:14, the video clearly shows that she begins to proceed into the crosswalk. And I submit to Your Honor that what she and the other pedestrians walking eastbound clearly did is what we see pedestrians in rush hour traffic do all the time, they wait for the cross signal to turn red and they start to proceed across the street. That’s clearly what happened here. The light turned red, she starts to go, other pedestrians follow.

“Why don’t we go back to 8:02:08? Are you ready?

“Your Honor, I want to briefly play it for you. 8:02:11, they’re in the crosswalk. 8:02:14, she begins to walk aggressively across the street. 8:02:16, she’s almost there and we have the accident.

“Conversely, from the other direction on the west side, as Mr. Mahoney admitted when he was watching the video, the pedestrians on the west side commenced into the crosswalk at 8:02:16, a second before the light illuminates for walk.

“Angelo Cilia, as the Court may have just observed, he did pretty well. He stays on the sidewalk until 8:02:16 or thereabouts and he’s only taken one or two steps into the crosswalk before 8:02:17, when the light turns white for pedestrians and also at the time of the accident. He—his conduct, and I believe his testimony, actually contradicts Ms. Yu and establishes that she started walking into the intersection well before the WALK signal.

“So the evidence establishes that Mr. Bucchere did not run the red light, he entered the intersection lawfully, and the evidence shows that the pedestrians entered the crosswalk too soon, and many legal consequences flow from that. And I laid them out a little bit in our memo.

“But under the law, because Mr. Bucchere entered lawfully, he had the right of way; the pedestrians did not. The pedestrians were required to yield to traffic in the intersection; they did not. And they were required to wait until the white signal—the WALK signal—illuminated and they did not.”

There it was: the very core of our defense strategy.

“So 8:02:14, red light, three-and-a-half-second all red, 8:02:17.5, WALK signal.

“The third issue that Mr. Mahoney was asked to address, the speed. Mr. Mahoney is the only witness who testified that Mr. Bucchere’s speed exceeded the lawful limit of twenty-five miles per hour. He estimated his speed at thirty-two miles per hour. He did that based on speculation. He did that based on observing the video and trying to guess the distance from the point of impact to where he could see Mr. Bucchere at 8:02:14 on the tape.

“Now, I agree that the evidence clearly shows that Mr. Bucchere was within the intersection. You can see it, and the Court can see it when you look at the exhibits, how far, how many feet he was from the impact. Where we have an expert testifying to feet per second down to the thousandths of a foot based on his time-distance calculations; this is not reliable; this is speculative; this is guesswork.

“So the prosecution, by failing to fix Mr. Bucchere’s precise location at the time their expert wants to make a time-distance calculation, has failed to establish the predicate for that calculation; Therefore, the speed calculation is not reliable and should not be relied upon by this court, especially when it’s presented by an expert who was so severely wrong in his opinions.

“So, Your Honor, I’m asking the Court—and I know it’s unusual but we have a case in which the evidence that is presented by the prosecution and is irrefutable before the Court establishes that the light turned red at 8:02:14, that Mr. Bucchere was in the intersection at that time, and that the pedestrians walking east-west on Castro Street proceeded into the intersection before the WALK signal illuminated and I’m asking the Court to make those three findings.”

While Ted’s request hung in the air, the court continued to go about its business as if the request simply did not exist.

“Do you wish to address the 17(b) issues now or after Mr. Talai’s response?” Judge Cheng asked.

“I would like to after, please,” Ted said.

With that, Ted sat down unceremoniously. The 17(b)—a motion we brought before the court to ask that my charges be reduced from a felony to a misdemeanor—could be addressed later. Now it was time to hear what—if anything—the prosecution would say about our complete unraveling of their entire case.

What could they possibly say? I wondered. They were sunk.

Here, at the zenith of the preliminary hearing—my confidence buoyed up by Ted’s powerful summarization—I felt ready to put this entire affair behind me and reclaim what was left of my routine existence.

CHAPTER SIXTY-ONE

7 March 2013—343 days since the accident

After all of his eyewitnesses and his $350/hour expert were flatly contradicted by the video evidence that Omid himself had introduced, I hadn’t the faintest idea what to expect from his closing argument, but I was hoping it wouldn’t fall too far short of an apology for being gravely mistaken in just about every possible way.

Even if I didn’t get a formal, on-the-record apology, at the very least, Omid would have to agree that Ted had disproved all of his crucial eyewitness and expert witness testimony, leaving his case in ruins, and leaving Judge Cheng with no alternative but to drop—or at the very least reduce—my charges.

First, Omid asked Judge Cheng, “May I sit since this is a preliminary hearing, Your Honor?” He really drew out the word preliminary. In contrast, Ted had stood at the podium for his closing argument, so by making a statement about sitting down in the “informal spirit” of a PX, Omid basically backhanded Ted across the face.

“Yes,” said Judge Cheng, as obliviously as he had acted while conducting all of his operations in court. I still kept wondering if he was checking his email on that giant monitor on his desk.

“Thank you,” Omid said. He cast a sidelong glance at Ted that had “gotcha!” written all over it.

“I would like to start and I should first say, please don’t let the length of my argument lend any weight towards my feelings on this case. I just don’t need to go quite as long,” said Omid.

“I’m going to start by addressing the over thirty-page motion that was filed yesterday by Mr. Cassman. In my only five years of experience, I’ve actually never seen this happen before. And what I mean by that is there’s a sentence in here on the first page that says, ‘We believe that the evidence adduced at the preliminary hearing does not even come close to supporting such a finding.’ The reason why I find that a bit ridiculous is this motion was written before a preliminary hearing happened. And after that is written, Mr. Cassman lays out the facts, and I say in quotation ‘the facts of the preliminary hearing.’ He has given the Court the facts of the preliminary hearing before a preliminary hearing has happened.”

At this point, I stopped listening. I turned my head clockwise, away from Omid—as far as I could stretch my neck without attracting suspicion—and I stared at the cheap, ugly wall. I could not believe that this guy was going to ignore the 800-pound-gorilla-sized hole we punched in his case and instead complain that a motion filed the day before was filed too soon.

Of course it was written before the preliminary. In fact, most of the contents of this brief were based on research we had done long, long ago. Ted and Julie presented the research in a similar memo to Omid and the other ADAs working this case six months ago, along with a dozen letters of support from my friends and family.

Omid’s best criticism of our argument was that it was—too long? Or filed too soon? Or delivered from a standing position instead of a sitting position?

Seriously? Has the world gone mad?

Not only was Omid’s attack on our word count and filing date irrelevant, it was also wrong. We filed it while the PX was still in progress? Sorry, our bad. We just thought that the PX would have ended yesterday, but the “expert” tried to will a traffic light out of existence, forcing us to find a way to will it back into existence, thereby pushing us into Day Two.

Then, suddenly, I had an optimistic thought:

If this is the best Omid can muster, perhaps he’s handed us a tremendous opportunity. Perhaps he knows he’s toast. Perhaps we’ve already won. I had a hard time focusing as Omid rambled on. Out of nowhere, he slung another zinger at Ted.

“That obviously causes some problems that I want to go through right now because what he says are facts to you in this motion that he signed and he conveniently handed out to the press yesterday are not facts that were presented in court here yesterday under sworn testimony,” Omid said.

I had a rough time parsing that sentence, but I thought I just heard him accuse us of trying to manipulate the media—that was pretty rich. I kept half listening and half drifting in my thoughts. I hope I’ll get a transcript of this. Someday I’ll need to sort through it and process it.

“Okay? There’s language about what Tobias Hanks said. None of that was presented to the Court yesterday.”

Tobias … why is he talking about Tobias? Oh, to say that we hadn’t talked about Tobias during the PX, except, of course, we had. Inspector Cadigan had contorted Tobias’s statement so that it sounded like we blew red lights as a matter of course.

“He goes on to talk about the Honda Element and how thirty seconds after the incident is when you see the Honda Element. Again, the problem with writing the facts before the facts are actually given to the Court is you’re going to give incorrect statements.”

Whoa wait a minute! Is he really going to argue against the timing of Pollak’s arrival at the intersection, after Pollak himself identified his car arriving at the intersection thirty seconds after the accident? This is not happening!

Suddenly, my optimistic thoughts collided violently with the reality of the courthouse, sending fierce shivers down my spine. I seized my notepad, threw it open, and scrawled as fast as I could: HE’S USING THE TIMESTAMP ON OUR FILING TO DEBUNK TED’S ARGUMENTS—CAN HE EVEN DO THAT? I slid the notebook to Julie with more gusto than necessary.

“Nathan Pollak was clear,” Omid continued, defending the testimony of a person who had perjured himself just the day before.

Julie handed my notebook back to me. “He’s going to have to do better than that,” it said.

Omid continued, “People’s Five, if I may approach, shows an intersection and prior to that intersection, there is a white line. The facts, the actual facts are Nathan Pollak said he stopped at that first white line, Mr. Bucchere then flew by him. Then he was very eager to move forward. He wanted to be helpful. He eased forward after a while and then he stopped at that crosswalk which is shown in the video. That’s the facts as the Court heard them yesterday.”

I couldn’t believe what I was hearing. Omid just used the following phrase: “The facts, the actual facts are Nathan Pollak said he stopped at the first while line, Mr. Bucchere then flew by him.”

Yet Omid must have known, like we knew, like Judge Cheng—if he was paying attention at all—also knew, that the video clearly showed Pollak’s Honda Element rolling up to the northernmost limit line thirty seconds after the accident. So now Omid was claiming that the words of Nathan Pollak were “the facts, the actual facts” and that those “actual facts” somehow superseded video evidence to the contrary.

“‘8:02:09’—this is quoting from the motion—‘at least two pedestrians have already started to cross from the east.’ I know the Court has the video, watched the video. I don’t know what else to say other than that that’s incorrect, that’s false and that’s misleading. When you watch the video, that’s not what’s happening. They are not crossing the street.”

I think he’s talking about Wen-chih and Bag Man. Anybody could take one look at the video and see that those two folks were in a mighty big hurry to cross, stepping out more than fourteen seconds ahead of the WALK sign.

“‘8:02:14’—also, just because it’s written on the board doesn’t make it a fact.” Omid shook a finger at Ted, Julie, and me, all in turn. Then he spun around and shook another finger at the easel. “If that light is controlling that intersection, 8:02:13 is when it turns red. It’s still red at 8:02:14 but it’s not just turning red at 8:02:14. This is, I guess, more of an opinion by Mr. Cassman.”

Whoa, slow down for a minute. We had used a traffic light to prove that their timeline was off by 100%, and Omid had said, “This is, I guess, more of an opinion by Mr. Cassman.”

Omid’s own expert claimed, under sworn testimony, that my light turned red at 8:02:10.5, assuming the pedestrians starting walking only when they got the WALK symbol. But now, the ADA had thrown out everything his expert had presented and now wanted to work with a third set of numbers and argue whether the light turned red at 8:02:13 or 8:02:14.

During the hearing, we had only used the wall clock (shown in the video)—instead of frame numbers—because we figured that the DA and his team didn’t know how to break the video into frames—thereby making all of our time-based calculations (e.g. speed) 6.2 times more accurate. We knew the light turned red on frame #4431 and yes, Omid now wanted the light to turn red when the wall clock read 8:02:13. And it does—but only for two frames, at which point it flips to 8:02:14. So considering the starting frame and the frame rate (6.2 f/s), the light turned red approximately when the wall clock would have shown 8:02:13.6 (if it had shown tenths of a second, which it did not).

“The pedestrian created obstacles to traffic,” Omid continued. “I guess pedestrians crossing the street are obstacles. The bicycle, I will explain in a second, was speeding.

“The government’s expert evidence testified that Strava data showed that Mr. Bucchere was going approximately thirty-two miles per hour. I don’t even think I said the word Strava yesterday, so to write in this motion that I am relying on Strava to show that the Defendant was speeding is again false, misleading and inaccurate.”

With that proclamation, Omid debunked blogger James Herd’s entire Strava-made-me-do-it conspiracy theory on sfcitizen.com. I really hope some reporter wrote THAT down, I thought.

“Having covered what are not facts, I would like to actually talk about what was talked about yesterday in court. To go through that, I know the Court is familiar with the law but I’m reading straight from CALCRIM.”

Omid then proceeded not to read from CALCRIM, the California Criminal Jury Instructions.

“I need to show there’s gross negligence. A person acts with gross negligence when the way he acts is so different from how an ordinarily careful person would act in the same situation. I submit to the Court that an ordinarily careful person does not run a light at 14th Street, does not run a light at 15th Street, does not run a stop sign at 16th Street, and does not then run a light at Castro and Market. I would submit to the Court that an ordinarily careful person does not do those things while speeding.”

Omid leaned precariously on Pollak’s testimony while paying no attention to the fact that we had refuted every last word based on the time he arrived at the intersection. We also had GPX waypoints from my iPhone showing that I stopped at 14th Street for the red and then carried my speed through 15th Street, indicating that it was likely green, but we were keeping those in our back pocket for the time being, just in case the DA still believed in Pollak’s lies, which seemed to be the case, at least at this juncture.

“I would submit to the Court that an ordinarily careful person does not run those three stop lights, that one stop sign, and speed, and fail to yield. To go over the speed, Mr. Cassman said moments ago, ‘Mr. Mahoney is the only person that testified to speed.’ That’s not in the motion, that was said here in court a few minutes ago. Mr. Mahoney is the only person who testified to speed. We can’t just say things to the Court and hope that you take that as fact. Mr. Mahoney is not the only person that said that. Nathan Pollak actually articulated that he was going about thirty on his bike, saw it on his speedometer when the Defendant then whizzed by him, so it’s false to say Mr. Mahoney was the only person.”

Yes, but the video proves that Nathan Pollak didn’t pace me down the hill; he rolled up thirty seconds later. Why are you relying on testimony we already disproved? I wanted to scream.

“With respect to the video and the stoplight, nobody has come into this court and articulated where the bicycle was at that time, not one person has said that. So even if the light did control that, which the only expert who’s testified did not say that, there’s no evidence that the Defendant flew by at that time.”

He’s gonna bank on Mahoney? Really?

“What Mr. Cassman’s essentially saying is all seven or so people in the intersection, all of them, each and every single one of them, violated the law and the Defendant was actually obeying the law and Mr. Pollak flat-out lied.”

YES, that’s exactly what we’re saying. Can we go home now?

“[Mr. Cassman] didn’t mince his words. He said the other witnesses were actually maybe mistaken, but Mr. Pollak, who ironically not only happens to be a bicyclist himself but bicycled to court yesterday, explained what he saw.”

Each time Omid referred to Pollak as a cyclist, it drove me a little more crazy—as if this fact somehow made his lies more believable. Or did Omid think it was clever to set up another cyclist to take down one of his own? It was all just so obvious and distasteful.

“I feel the need to kind of defend Mr. Pollak’s testimony,” the ADA continued. “He is somehow a bad citizen or San Franciscan because what he wanted to do was help, sends himself a message the day or very soon after the incident to be able to explain exactly what happened. Through Mr. Cassman’s questioning, he’s somehow interested in what the media has to say about him. That could not be further from the truth.”

Of course, no one had any idea what Pollak’s true motivations were—both sides were guilty of conjecture on that topic. Besides, only one thing mattered: The video refuted his entire testimony.

“He came in here as a cyclist himself who said conservatively he cycled in the city over 1,000 times and simply explained what happened. And the ironic thing about the entire, ‘did he run the red light, did he not run the red light’? The evidence and the facts as they came out in my opinion are that he ran the red light.

What?

“Even if you want to believe he didn’t [run the red light], which I’m saying is not the case, but even if you want to believe he didn’t, when you’re speeding and you fail to yield, those are two infractions in the complaint which are enough to hold the Defendant to answer. Okay?”

Okay! But if I didn’t run the red light, and the pedestrians didn’t wait for the WALK symbol, then I had the right of way. Under those circumstances, as awful as it sounds, they were required by law to yield to me—so I cannot be charged with failure to yield to them.

“And to say that it is guesswork on the part of Mr. Mahoney, who obviously knows more than, I think, than all of us given his background, training and experience, is a stretch at best. Over 1,500 investigations, many times for the defense. I know you’re very familiar with his background, training, and experience because you were here yesterday and you actually heard the facts that were stated.”

Well-certified and qualified, yet he didn’t see the traffic light staring at him right in the face.

“For all those reasons, I think it’s very clear the Defendant was not ordinarily careful as the same person would be in a similarly situated position. Ordinary people do not run two stoplights, one stop sign, speed, then run another stoplight.

“And what every single witness was very consistent about. Castro and Market Street is not the Financial District. Castro and Market Street at 8:00 a.m. on a weekday is the height of rush hour traffic with MUNI there, numerous buses, numerous pedestrians, numerous cars.

“For all those reasons, I think there is at the very least a strong suspicion that the Defendant should be held on the one count that he’s charged with.

“Submit.”

Finally and abruptly, Omid’s closing argument came to a conclusion. I still grasped for ways to understand his claims and his vitriol directed at Ted and me.

“Mr. Cassman,” said Judge Cheng, “given that we’ve been at this nearly an hour, I want to give you a chance to make the 17(b) and present the 17(b) argument and then give you a chance to respond substantively on the merits. Why don’t you make [the] argument first.”

“Yes, Your Honor,” Ted said. “Thank you.

“I’ll be very brief. We submitted the memorandum yesterday. Obviously it had been prepared before the preliminary examination so I tried to anticipate what the evidence would show based upon in part an expert’s report, and then the expert came in [and] did not rely on the very data that he presented in his report to me.

“With regard [to] the letters that were attached to the memorandum, which are the bulk of the memorandum that counsel referred to thirty pages, I’m not sure it’s that long but both of them are letters that counsel’s had for many, many months so there’s nothing new there.

“The letters of support demonstrate what is obviously true in this case: That Mr. Bucchere is a man of great character, a man of great substance, a man of great potential, a family man, a man committed to his community, a man who has demonstrated that he’s committed to bicycle safety. He was on the bicycle team at Stanford, he does bicycle safety training for people, he does regular riding. He has ridden in his lifetime over 30,000 miles. He has never been in an accident, he has never hurt anybody, he’s never seriously been implicated in any event involving a bicycle or a motor vehicle for that matter.

“His driving record is clean, his criminal history is clean. He is a man who gives back to his society, who knows how fortunate he is, who cares for his community, and for his neighbors and for his family.

“In this matter, the factors the Court is to consider pursuant to Penal Code 17(b) militate very strongly in favor of a reduction to a misdemeanor should the Court find that there’s a basis for a finding that the offense was committed.”

“Mr. Talai, the 17(b) issue,” said Judge Cheng.

“Sure,” Omid said. “Given that Mr. Cassman, obviously, which is within his right, relied on some hearsay regarding Mr. Bucchere, it’s also within my right to do the same thing. I don’t personally know the Defendant but I do know that the day of this incident, he submitted a blog and that blog I think is very telling of his character.”

Here we go, I thought. Omid was about to quote my personal email that the media had turned into a public blog post. I’m sure he’ll only read the section about helmet safety, and I’m sure he’ll construe it to mean something it doesn’t. Ted tried to stop this dead in its tracks.

“Is the blog before the Court?” he interjected forcefully.

“It is not before the Court,” said Judge Cheng, not making any attempt to stop Omid from slandering me with my own words.

Omid continued: “And within that blog, he says, ‘In closing, I want to dedicate this story to my late helmet.’ He does not want to dedicate this story to the man whose skull he fractured, the man whose brain he forced to hemorrhage. He is not dedicating this story to the man that he killed.”

Right there, again, he had conjured up the spurious comparison between my helmet and the man I “killed,” a comparison I never made and never would—because it’s preposterous and insane. Also, nobody had died when I wrote that email, but that never seemed to matter to anyone but me.

“This is a form of a homicide. And it’s not a murder, it’s not as serious as a murder, that’s why it’s not filed as a murder. He was extremely reckless. The fact that he is an experienced cyclist, I find more worrisome. The fact that he is familiar with that intersection is more worrisome, that he knows how busy it is at 8:00 a.m., that he is supposedly so experienced having been on the Stanford’s riding team. When you are going above the speed limit—”

“Excuse me, Your Honor,” Ted interrupted Omid to ask for some tissues because I had started to weep uncontrollably.

Why did I start crying? I’m not sure. Perhaps because the DA and the media had created a public persona for me that was defined by only two events: a bike accident and a poorly-timed, wildly-misinterpreted email I wrote while in shock, on drugs, and suffering from a concussion. But that isn’t who I am—my life is about so much more.

Furthermore, this was the first time since the accident that anyone had publicly spoken about the parts of my life not related to this accident and put them on display for the world to see. But rather than acknowledge anything Ted had said about the case or about me and my character, Omid pulled one line from an email that neither he—nor anyone but the intended recipients—had any business reading, let alone misinterpreting to mean that I valued a helmet’s “death” more than the death of a person who hadn’t yet died. No one could possibly know how I felt about the death of Sutchi Hui. No one ever will.

I was stuck between time and space, no longer able to comprehend the reality unfolding around me and all I could do was weep. So I wept. And wept. Finally, as my weeping turned into sobbing, Omid continued with his character assassination.

“If the Court looks at one of these pictures where there’s about five people or so within the intersection and what the Defendant did, according to Mr. Nathan Pollak, is barrel down in order to speed up. An experienced rider who was conservatively thirty, forty or probably more feet away from all these pedestrians would be experienced enough that he would try to avoid the collision as opposed to barrel down and speed up.”

Again, Omid assumed that I somehow could have avoided this accident, that I recklessly, selfishly, and heartlessly chose not to. That simply was the opposite of what actually happened, and I’m sure Omid knew it. But at this point, he served only one purpose: to deliver to his boss a conviction of this “reckless cycling monster” that Gascón had created by feeding false information to the press.

“I cannot speak further on his character other than the blog, which I think is more telling than a year after the incident having hired a team of attorneys and gathered a series of letters. I think how you act soon after the incident is far more telling than what you’re doing a year later when you’re charged with a felony.

“I can say that there are family members of the victim here as far as Taiwan. From what I know about the man that the Defendant killed on March 29th of last year, he was a very important man. He was a husband, he was a grandfather, he was a father, he was an uncle. And while he was seventy-one, which I’ve heard people say, he was a very healthy and happy seventy-one who family members told me yesterday we still needed him. It’s not that we wanted him, we all still needed him here. For all those reasons, I feel the Court should not reduce this to a misdemeanor.”

“Mr. Cassman, I’m going to give you the last word on either the 17(b) issue or the substantives,” said Judge Cheng.

“Thank you, Your Honor.

“Showing you Defense Exhibit C, Your Honor, the limit line that Mr. Pollak was referring to that he finally stopped at 8:02:47, which is clearly shown on the videotape, is this line here north of the crosswalk, on the north side of Market Street. To suggest that what that video shows is his car stopping at the limit line sometime before the accident, which occurred at 8:02:17, and then creeping forward a few feet towards that line is patently absurd and wrong and misleading and it cannot be countenanced.”

Ted couldn’t have possibly chosen firmer language than “patently absurd.” His tone didn’t show how irate he must have felt, but he spoke sternly and forcefully.

“That’s just wrong,” he said. “That’s not the evidence before the Court and the prosecution shouldn’t be making such arguments to the Court.”

But they had. And if given the chance, I suspected they would do it again.

“Anything else on the 17(b) argument?” Judge Cheng asked, using the same tone most road-tripping kids use when they ask, “Are we there yet?”

“Okay,” said Ted, not letting the judge end the hearing before he again reiterated how Pollak had fabricated his entire testimony. “I was just going to say Mr. Pollak’s testimony is flatly proven to be false and wrong. I didn’t call him a liar but he’s wrong.

“And I’ll move to [the] 17(b),” Ted continued. “I want to say this. After this accident, and Inspector Cadigan is here so she knows this to be true, Mr. Bucchere called her about Mr. Hui’s condition every day and inquired. He went to the hospital and brought a card and flowers. He was concerned about Mr. Hui because he is a good man who cares and who knows that life is precious and that we all have to treasure. That blog is total hearsay and it’s not before the Court. What is before the Court are the many letters from very important and prestigious people supporting Mr. Bucchere and demonstrating his good character.”

“Okay. Submitted from both sides?” asked the judge.

“Yes. Thank you, Your Honor,” said Omid.

“Mr. Cassman, submitted?”

“Yes, Your Honor.”

So just like that, the lying and the perjuring and the name-calling and the objecting and the fighting and the weeping ceased. I breathed in slowly and awaited the words of the Honorable Judge Cheng. I feared the worst, but I tried to center my thoughts on the best outcome: a dropping of the charges—or at least a reduction to a misdemeanor.

For surely the judge would see the light shining through the tattered remains of the DA’s case.

Or would he?

CHAPTER SIXTY-TWO

7 March 2013—343 days since the accident

Before I could even finish exhaling, Judge Cheng had already launched into his decision. He spoke quietly, dispassionately. He looked in our general direction, but avoided eye contact with me, despite the fact that I was staring directly at him.

“The Court finds from the production of satisfactory evidence to show the following felony has been committed,” he said.

“Count One alleged in the Complaint, a violation of 192(c)(1) of the Penal Code. He’s held to answer.”

The words came out of the judge’s mouth in such a matter-of-fact manner that I had to wonder if he hadn’t made up his mind weeks ago and just let the lawyers duke it out for the past day and a half so he could have time to play Solitaire or check email on his computer. The nonchalance with which he processed all the testimony and the evidence, especially the video—“Would you like to see that again, Your Honor?” “No that won’t be necessary.”—made me suspect that he had made up his mind well before we ever got here.

“The Court has taken into account the fact that Mr. Bucchere has no criminal record, has a family of his own, and has an overall record of being a very productive and contributing member of society. As such, the Court denies without prejudice the 17(b) motion.”

This part, too, I failed to understand. Why did my stature in the community have anything to do with the 17(b) motion, and, moreover, if my prior positive contributions to society did bear relevance, why was he denying our motion in the first place? I sat at the defense table, mouth agape, staring at the judge, who continued to avoid eye contact.

“It’s the hope of the Court that the parties will reach a resolution prior to trial that recognizes the severity of the conduct that occurred but also recognizes the enormous potential Mr. Bucchere has to make amends for it. I’m certain that Mr. Bucchere is going to carry this mistake for the rest of his life, so will the family and loved ones of Sutchi Hui.

“Mr. Bucchere, you’re ordered to appear in Department 22 for instruction and arraignment on March 21st, 9:00 a.m. Bail will remain as previously set.”

With that, Judge Cheng rapped his gavel and the matter was adjourned. As the courtroom emptied, I sat there completely shell-shocked, sweat bleeding through into my jacket, and my face crusted from salty tears. I had no idea what had just happened to me—and worse—I had no idea why.

We held all the cards. Ted’s closing argument tied it all together. Did any of that actually happen? Or did I imagine it?

At last, with the courtroom nearly empty, I turned to face Ted, just then noticing that his hand was on my back. I didn’t know how long it had been there, but I appreciated the gesture. My eyes welling up with tears, I managed to eke out a few words.

“What happened?”

“Nothing we didn’t already see coming. I know you want to know, but we can’t talk about it here.”

Ted was right. There were reporters everywhere and probably half a dozen TV crews with cameras and microphones waiting outside.

“All right,” I said, “let’s get out of here. Let’s split up and meet at Roma. You guys scatter and leave in different directions; I’ll head straight for the stairs—the news crews won’t know who to follow.”

“I don’t think this will work. All they want is you,” said Julie.

“Does anyone have a better plan?”

Ted, Fred, and Julie looked at one another and then back at me.

“Well, alrighty then, let’s go.” I was determined the get the fuck out of that incomprehensibly miserable place.

Fred grabbed the easel, and Julie and Ted each picked up a massive bag of documents and all manners of electronic equipment. The four of us walked down the aisle in the middle of the gallery—Ted first, then Julie, then Fred, then me, bringing up the rear. The courtroom—having been the scene of a knock-down, drag-out battle just minutes ago—now sat nearly empty and nearly silent. As Ted reached the vestibule, we could hear the din outside. Ted turned his head to face the three of us.

“Ready?” he asked.

I nodded with trepidation, and he gently pushed the door open, revealing absolute pandemonium.

“Mr. Cassman! Mr. Cassman! Mr. Cassman!” came shouts from three different directions. I’m sure the reporters asked questions, but I didn’t hear them. I only heard the shouting of Ted’s name as he broke off to the right and some of the news crews swarmed around him. I felt like I had a chance to escape. I cut past Julie and Fred and swung out to the left, hoping that Ted would continue to divert attention from me.

“Mr. Bucchere! Mr. Bucchere! Mr. Bucchere!” I heard from all around me as I darted toward the stairs. Reporters shoved cameras and microphones in my face, shouting all types of words at me that I did not hear, let alone comprehend. I just needed to make it to the stairs.

In my confusion and haste, the location of the stairwell I had used at least a dozen times before evaded me. Where are those goddamn stairs? I turned down a large hallway, feeling the stampede of reporters hot at my heels. Then I saw something else that could facilitate my escape. Elevators! Yes, elevators! I pressed the down button as the entire throng of reporters and their camera crews crowded into the elevator lobby, surrounding me. More questions, more microphones and cameras shoved in my face, but no elevator. I stood facing the door of one of the four elevators, inviting the cameras to film the back of my head, and responding to no one, yet keeping my eyes up.

I counted to three. Then five. Then ten. No elevators. And with the way the reporters had me cornered, I could only access the one elevator right in front of me, not the others. It finally dawned on me that this elevator plan would never work, so I turned on my heels and walked directly through the horde, which gave way as I stormed through. Coming out of the elevator lobby, I made two lefts, desperately seeking the elusive stairwell. Instead, I found myself headed for a dead end. This time, the reporters didn’t follow. Ted and Fred caught up with me. We had put at least twenty yards between us and the gaggle of reporters.

“Chris! Calm down! You can’t let them see you like this,” Ted’s words were stern and direct.

“Like what?” I demanded, even though I already knew the answer.

“Rattled. Distraught. Walking way too fast! We never should have split up.”

“You’re right. Julie was right.” I felt like a fool for suggesting it.

“What now?”

“Fred and I are going to walk you directly to the stairwell, straight through the mob of reporters who are blocking the way.”

That’s why I couldn’t find the stairwell.”

“Doesn’t matter,” said Ted. “Just listen to me. Fred and I will walk in front of you, slowly, deliberately, eyes up. We’ll get the reporters out of your way and lead you down the stairwell. Don’t respond to anyone, don’t look at anyone, don’t say ‘no comment’, and most importantly, don’t touch anyone. Some cameraman might pull an NBA move and blame you for fouling him, and then you’ll be in a lot more trouble than you’re in now.”

Jesus,” I said. “You’re telling me this could actually get worse?” I hadn’t realized how precious little control I had over my fate under these circumstances.

So it came to pass that I made my third attempt of the day to leave the Hall of Justice, this time as more of a passenger on a train being engineered by Ted and Fred—and thankfully not by me. It felt painfully slow and absolutely wretched to allow the media to shove their implements in my face and ask me questions—all the while hoping I would slip up and give just one little shove, one little push that would mean I wouldn’t see my daughter grow up.

With the stairwell, in fact, located exactly where it was before—but on the ass end of the gaggle of reporters—we finally made it out of the Hall of Justice. Arriving at Cafe Roma, we reunited with Julie. After a few deep breaths, I turned to Ted and asked him to please explain to me what had just happened.

“The judge held you to answer. Like I mentioned yesterday, he gave me a lot of clues that his mind was already made up, despite the evidence.”

“How could he do that?”

“As I’ve told you before, the standard for the PX is very low. The DA just has to show the judge some suspicion of a crime being committed. One witness says you ran one red light and the pedestrians had a WALK symbol—that’s all he needed to hear. The silver lining here is that we finally got to put our case out there. It’s part of the court record. It’s part of the media record. Hopefully we can start to turn this ship around. This is just the beginning.”

“And what about the 17(b)? I thought we had a shot at getting a reduction from felony to misdemeanor?”

“We did, but the judge didn’t go for it. It was a long shot anyway.”

“And what about this ‘without prejudice’ business. What does that even mean?”

“That’s where Judge Cheng really screwed us. ‘Without prejudice’ means that we can’t ask for a reduction from felony to misdemeanor again until sentencing.”

“So now it’s plea bargain or trial, and unless the DA agrees to reduce the charges himself, I’ll be leaving my fate in the hands of another judge who could be just as prejudiced as this one.”

“Well, be careful with that word ‘prejudiced’—it means very specific things in the legal world. But otherwise, basically, you’re right.”

“So let me get this straight: We debunked all their eyewitnesses and the expert with their own video evidence, and yet they still won and now we’re much worse off than before.”

“Yes, they won this battle. But in a way, we won too. We finally got our story out there, based on the only correct interpretation of the video. We’ll live to fight another day. And it’s going to be much harder for them to win in the end now that our story is finally out there.”

“And what about that closing argument from Omid? He spent most of his speech on technicalities, repeating debunked testimony, and otherwise diverting attention away from the facts of the case by making wild ad hominem attacks against me.”

“And me!” said Ted. “That was deplorable. It was some of the sloppiest, dirtiest work I’ve ever seen from a prosecutor. He should be ashamed of himself. He really showed his true colors. But it doesn’t matter. We’re done with Omid. We need to take this straight to the man behind the curtain to get a resolution.”

“Gascón?”

Gascón.”


>> Continue to PART VIII: The Offer.


For a closer look at the research behind Bikelash, visit the companion GitHub project.