Bikelash PART VIII: The Offer

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 VIII: The Offer

CHAPTER SIXTY-THREE

15 March 2013—351 days since the accident

Because the local papers and TV news had treated me like a whipping boy, I had all but written off the ability for the media to report on this accident correctly. But for the first time since the international firestorm began, a national publication printed something that did more than just repeat the lies that the DA, the police, and the media spin doctors had been promulgating for nearly a year now.

Forbes magazine featured an in-depth article written by Kashmir Hill, a well-known technology and privacy blogger, about how we turned the tables on the DA. The article said that Ted pointed out “in a small, barely visible corner of the video, a traffic light.”

“The expert,” the article continued, “to whom the state had paid $200 an hour to analyze the video, hadn’t previously spotted it. The video now seemed to tell a different story. It looks like Bucchere entered the intersection just as the light turned red. Many pedestrians, including the first witness [Wen-chih Yu], were already in the crosswalk despite the 3.5 second “all red.” Three seconds after entering the intersection, Bucchere hit [Sutchi Hui]. He might have been able to swerve left to avoid him, but the first witness [Wen-chih Yu]—who clearly entered the crosswalk very early—left that path blocked.”

Finally, somebody in the media is paying attention.

Kashmir Hill continued: “What I found fascinating though were the contradictions between the eyewitness testimony and the camera’s unbiased eye. Had they all instead been wearing Google Glass—not such a far-fetched concept for this tech-geeky city—each one could have theoretically captured the incident on video (were they in the habit of taping their morning commutes). The witnesses could have played back footage to show whether they had walk signs or not. Bucchere could have played back his tape showing whether he had a yellow or red light. Fallible and biased memories would be replaced by far more reliable documentation. This is part of the reason Russians all have dash cams in their cars.”

Kashmir closed her article with this: “They say truth is the best defense. In this case, a few pairs of Glass—or a bike cam—would have made the truth much easier to discern.”

As one of my former Mission Cycling teammates pointed out in his response to my email, the moral of my story should have been: Wear Your Fucking Helmetcam. He was right. I was astoundingly lucky that the Twin Peaks security cam had captured the entire event on video. With a camera on my bike or helmet, I might have already produced enough evidence to exonerate me completely.

Without any footage at all, I’d already be in jail.

CHAPTER SIXTY-FOUR

20 March 2013—356 days since the accident

“Chris, it’s Ted.” I could hear my attorney barking as I ducked into a conference room and lifted the phone to my ear. Ted would do that often—start speaking before I said hello—displaying little concern for common phone etiquette or that his name lights up in big letters on my little screen, so there was no need to identify himself.

In light of the events of the previous eleven and a half months, I had long since stopped speculating on the reason for Ted’s calls. Instead, I relegated myself to the new reality in which even the most inconceivable of horrors could befall me at any given moment.

“I met with Omid, and he told me he’s not our problem,” Ted said. He spoke in rapid-fire bursts, sounding like a pistol firing rounds through a silencer.

“How so?” I interrupted. Omid certainly seemed like a big problem in the courtroom.

“Hold on! Let me finish,” Ted demanded. “He said he understands the weaknesses in his case—”

Weaknesses in his case?” I asked. “What case? He has no case!”

“He thinks he can still get you on your speed alone, either prima facie or posted or both, even though he only needs one.”

“You know they can’t do that.”

“Do what, exactly?”

“They can’t make a felony stick because I might have been going a few miles an hour over the speed limit, just like many of the vehicles that travel down that hill every day. That’s not felony-grade negligence, and they know that. On top of that, you and I both know that had I gone more slowly, I might have inflicted even more damage as the pedestrians converged upon me. And had I been traveling just a hair faster, I might have made it out of the other side of the intersection before I got sandwiched. Why can’t we argue this case in light of the actual events that transpired instead of on this whole ‘guilty because cyclist/blogger’ bullshit?”

“If this had anything at all do with the facts of the case or the vehicle code, they would have already dropped the charges,” Ted replied. “But there’s no sense in speculating about what might happen. You know that. You’ve seen how dangerous Gascón is and how much he wants to make an example out of you and your behavior, regardless of what really happened out there. There’s no telling what he’ll do next.”

“So what are we supposed to do next?”

“Well, Omid understands the fact that the pedestrians were jaywalking; he knows the fact that you had the right of way; and he knows that Nathan Pollak lied. If it were only Omid’s call, he would probably agree to a misdemeanor or maybe even drop the charges altogether. But he has to run it by Gascón, who he said has his mind set on a felony.”

“Pardon my French, but what the fuck is going on here, Ted? Are we buying a used car from these motherfuckers, or talking about me watching my daughter grow up from inside a cell for the next six years? All I want is for this case to be about the facts, not about some insane vendetta the DA has against cyclists.”

“Calm down, Chris. You don’t send a five-star general into battle. Gascón’s never seen the inside of a courtroom. Even though he’s calling the shots, he’s not going to get involved in the nitty-gritty.”

“I don’t understand! Gascón wants to create a bicycle felon. He has no knowledge of the case. He only knows what he’s read in the papers, much of which he put there himself through press releases or ‘leaks’ in the first place. Even though Omid attacked us over and over during his pathetic closing arguments, now he’s acting like Mr. Nice Guy and blaming the ‘man behind the curtain’ for all our problems. I don’t buy it. I don’t want a used car. This is bullshit, and you know it.”

“Perhaps it is, but regardless, Gascón won’t take a meeting with me or with you. However, Omid’s going to let me come in and talk to him and Sharon Woo, his boss.”

“Well that’s nice, but I doubt Sharon cares about this case any more than Omid does. If Gascón wants to make a felon out of me as his personal pet project, then he needs to take a fucking meeting with me. I want him to look me in the eye and say to my face that he really believes this accident was my fault and that I deserve to be called a felon for it.”

“He’s never gonna do that.”

“Why not?”

“You know why not.”

No I don’t! Go make it happen!”

I hung up the phone, defiant. On my wild, emotional roller coaster, I had reached a peak of rash confidence and self-righteous indignation. Then I collapsed into a chair in the windowless conference room and started bawling like a four-year-old.

At that moment, I realized that the inscrutable mess I was in had the same likelihood of landing me in jail as it did of driving me foaming-at-the-mouth mad.

It seemed I was already well on my way.

CHAPTER SIXTY-FIVE

21 March 2013—357 days since the accident

Perhaps because my first arraignment hadn’t provided enough entertainment for those who watch the evening news, I needed to have a second one. Ted and I pushed our way past a throng of reporters, sticking their microphones and video cameras in my face and asking questions.

“We heard you tweeted about this accident. What do you have to say now?”

I said nothing and looked the other way. I had never tweeted about the accident. I had deleted my Twitter account along with the rest of my internet contributions in what seemed like a lifetime ago.

“So you have nothing to say at all? Nothing?” some reporter said, nearly hitting me in the face with his microphone. “Nothing to say to the family? Nothing at all?” he pressed on, cameras rolling as he twisted his mic in front of my mouth at various angles. Still, I said nothing, but the thought did register that the media could now use my “saying nothing” against me if they thought it would cause more outrage and sell more ads.

“Why wasn’t the case resolved by today, like the judge said it would be?” asked another reporter.

The judge didn’t say that, I thought, again saying nothing.

We finally made it into the courtroom—a place riddled with other perils, but at least a sanctuary from the reporters outside seeking to do as much harm as possible. We had to wait longer than usual, as several cases had piled up in front of ours. But what I witnessed from the gallery as we waited caused more tears to well up in my eyes. This time, however, I wasn’t crying for myself.

From the gallery, I watched as the bailiff escorted one dark-skinned man after another, each wearing a matching orange jumpsuit, up to the podium. Each inmate’s attorney would mumble a few words, the judge would read how much time the inmate had already served and how much time he had left to serve, and then, with little more than a shuffling of papers, the judge would order the convict back to his cage in the adjacent jail.

Most of these men had the same overworked and underpaid attorney—someone from the public defender’s office, I figured. But some had outside counsel, not that it seemed to make any difference. Those guys had come out of jail to go to court, just to get ordered back into jail.

Now, their crimes may have been heinous and cold-blooded—but why are they all dark-skinned? One third of San Francisco is Asian. Of the remaining two-thirds, only a small fraction is non-white. So where are all the white people? And the women? And moreover, why wasn’t anybody doing anything other than sending these human beings back into animal cages?

Did these men actually commit the crimes they were convicted of? Or did prosecutors simply make up a case based on mistaken witness accounts, paid-off “experts,” and lying police officers, then leak it to the media, like they had for me? After what I had experienced, I knew I’d never assume anyone’s guilt ever again.

There were only two differences that I could see between me and these guys. I had saved—and borrowed—enough money to hire the best criminal defense attorney in the Bay Area, and I was light-skinned enough to pass for white.

My swirling thoughts were interrupted: My turn had come. The hearing was over just seconds after it started, which is how most arraignments go. Most people, especially attorneys and journalists, know that.

But as we left the courtroom, Dave Clark, the anchor for KTVU news, intercepted Ted with his microphone and a barrage of questions. Ted looked him in the eye and asked, “For an arraignment? Really?”

With that, we timidly pressed our way through the throng of reporters again and high-tailed it down the stairs and out of that godforsaken place—at least for the time being.

CHAPTER SIXTY-SIX

21 March 2013—357 days since the accident

Several big news stories broke regarding my uneventful second arraignment. I read all of the thousands of comments, nearly all of which were not worth reading. They boiled down to six archetypes:

1) Cyclists in this city are such entitled assholes, all of them. Bucchere is the mother of all the scofflaw cyclists out there. Guilty! Hang him high.

2) Pedestrians in this city are such entitled assholes, all of them. They do stupid stuff all the time. Let’s wait and see how this plays out.

3) Bikes should require registration or insurance. Or both. Or pay a road tax. Or all of the above. But what about little six-year-old Jimmy with training wheels? Will he need to register his bike too?

4) Drivers kill 99% of the dead pedestrians in SF and probably 99.9% of the pedestrians who die worldwide. Why do the one or two cyclists get all the coverage? And why a felony? Hardly any drivers who are sober and stay at the scene get anything other than a misdemeanor and some community service—if they get charged at all.

5) Bucchere does NOT represent the cycling community. I’m a cyclist, but I’m not that kind of cyclist! Don’t let this one bad apple shape your opinion of all the other law-abiding cyclists out there.

6) I have a high IQ, yet I still comment on news articles. Why is no one paying attention to the fact that Bucchere is getting railroaded by the DA and the media? The Forbes article said that all the eyewitness testimony was debunked and the expert witness was embarrassed off the stand by the video. So now all they have is speed, and even that sounds shaky. So why is Gascón still insisting on a felony? Because he screwed up the Ang case? You shouldn’t hire a cop to do a DA’s job.

CHAPTER SIXTY-SEVEN

29 March 2013—one year since the accident

Easter Week had started badly and only gotten worse. On the Sunday prior, I received a phone call from my mom telling me that her dad, my maternal grandfather, had started hospice. The following Tuesday, March 26, Papa Donny died.

Having spent all of our savings on legal fees, bail, and measures to ensure our privacy and safety, my wife and I had been living paycheck to paycheck, amassing a $65,000-sized hole of credit card debt. We couldn’t afford to ditch work for three days and fly to New York for the wake and funeral.

But this was Papa Donny.

For decades, every Sunday, two dozen relatives, representing four generations of our huge Italian and Jewish family, had gathered along a massive table in Papa Donny’s row house in Brooklyn—often extended with card tables and folding chairs—to dine upon his homemade pizza, rigatoni bolognese, lasagna, and more. He’d recite a three-second blessing, followed by three hours of boisterous conversation, laughter, and feasting. As the host, the chef, and master of ceremonies, Papa Donny was the anchor that kept our family in place, and the ballast that kept us steady.

We found a way to get there. We flew across the country, with our daughter in tow. For Papa Donny.

On March 29, 2013—exactly one year to the day of the accident—my family and I sat on a church pew in Staten Island and choked down tears as my dad eulogized this man who had shaped our family so profoundly. How Papa Donny had immigrated to the states from Castellammare del Golfo as a child, passing through Ellis Island; how he had worked in construction, including pouring cement to build the anchorage for the Verrazano-Narrows Bridge.

During the service at the cemetery, I thought about Papa Donny’s last years and how much he had suffered. How we all had felt so unable to help. My mind wandered and then, when it regained focus, I wasn’t thinking about Papa Donny; I was thinking about Sutchi Hui. Another family had lost their patriarch a year ago, due to actions I had taken, decisions I had made in the blink of an eye. A year ago they had all been plunged into this same darkness.

It was too much to bear. I walked away from the gathering at the headstone, my grandfather’s coffin not yet lowered into the grave. I found a feeble tree, put my arm up against it, lowered my head, and I cried.

I cried for Papa Donny and my family. And I cried for Sutchi Hui and his.

Then I got ahold of myself, wiped away the tears, and walked back to rejoin the burial ceremony. As quickly as these thoughts had come, I banished them. The past year had taught me to compartmentalize everything.

My daughter was about to lose her father to a lengthy jail sentence. Another family would soon be left without their husband and dad. I didn’t have time for emotions.

The case was the only concern I could handle right now.

CHAPTER SIXTY-EIGHT

10 April 2013—377 days since the accident

I hadn’t seen Ted since my second arraignment, so I emailed him to ask if he and I could have a meeting. He emailed back promptly to set one for Monday, April 15, and told me that he had also managed to get a meeting scheduled with Sharon Woo, Omid’s boss. Ted then asked me to tell him more about how I use Strava, asking me to discuss my “previous times for that ride and how March 29th stacked up.” They’re still trying to make it seem like I was racing, I thought.

I wrote back with the following:

Hi Ted,

Great news that your meeting with Sharon Woo is now on the calendar. I believe our other important date is either the 23rd or the 30th for the hearing to argue the 995 motion—not sure if I’m needed for that.

About Strava, if I understand the prosecution’s case correctly (and believe me, it’s been a challenge), they’re using Strava to show that I was “racing.” By that logic, anyone who records their time on foot, bike, car or public transit on any route in any kind of log to compare present times with past times on the same route is also, without a doubt: “racing.”

I can point you to what I think the DA’s primary source of information was to make the startling conclusion that I was “racing:” http://sfcitizen.com/blog/ 2012/04/13/did-cyclist-chris-bucchere-discuss-prizes-for-winning-strava-segments-just-four-days-before-his-castro-collision/

There’s also a line in Cadigan’s chronology where someone (possibly James Herd, who maintains sfcitizen.com, under a fake name) calls in to inform the police that people online are saying I was racing. People online have said lots of things, e.g. that my bike didn’t have brakes. Just because people said it online doesn’t make it true. You can ask Omid about that.

If you think that somehow the prosecution is going to dig through the Strava data and find something incriminating, then you’re giving them more credit than they deserve. In fact, I’m not even sure why they asked Strava for my data, when it seems they didn’t look any further than Strava’s home page, which says:

Track your progress and challenge your friends

Compare your performance against friends, locals and pros

Set personal records and climb the leaderboards

Which meant, to the DA’s office:

Race yourself and your friends

Race your friends, locals and pros

Race yourself and get street cred for better times

I’m happy to show you how I have used Strava to track my performance over the past few years. In particular, I’ve paid attention to certain hill climbs in remote areas (like Hawk Hill) with no stop signs or traffic signals and no traffic, especially not at 7am. Since I know where the climbing segment starts and ends, I put forth my best climbing effort and then when I get home, I compare it to my prior efforts and my teammate’s efforts. If Strava didn’t exist, I would do this anyway with a stopwatch, a piece of paper and a pencil. This practice of recording times and getting better over time (ideally) is an important part of training. But it is NOT racing. Not by a long shot.

I know this is not racing because I do, in fact, race. I have raced mountain bikes since I was a kid and road bikes dozen and dozens and dozens times on closed courses in the twenty years before the incident. I have raced in bicycle, foot and swim races in the year since the incident. I know what a closed course is. And, more importantly, I know what is NOT a closed course. I know what timing chips are and how they work. I know the difference between an “official time” and an “unofficial time” per widely accepted racing nomenclature. I recognize how Strava on your iPhone or Garmin is not the same thing as a timing chip. I know that using an iPhone or a Garmin to collect data does not mean you’re racing any more than it does when you’re using these devices in a car. And when I ride through the city in typical traffic while I’m commuting or when I’m riding for fitness, I am NOT racing. If I treated this city like a closed-course race, I would die fifteen times per week, at least. Any person who says “I have a whole stack of data from Strava” and uses that statement to imply that I was racing is a fucking idiot.

I’m happy to show you how I have used and how I continue to use Strava to track my progress and how Strava is used in general. But if I claimed I somehow knew what part of Strava is relevant to my case, I would have to be completely psychotic.

3pm on Monday works for me.

See you then.

CB

CHAPTER SIXTY-NINE

10 April 2013—377 days since the accident

Ted called me that evening to discuss why Gascón seemed so hung up on Strava.

“After the expert and Pollak failed him, Strava is the only thing Gascón has left in his arsenal to raise your behavior to a felony,” Ted said.

“But recording a ride on Strava doesn’t equal racing. I record all my rides, even my commutes. And I only race on closed courses under supervision.”

“I know, Chris. Look, we have to stop using the word racing. I don’t want to hear anything else about why Gascón thinks you were racing. I don’t want to hear about your past, present, or future racing career. All I want to hear about is how we can prove you weren’t racing on March 29th.”

Jesus.”

“He’s probably not gonna help us either.”

“Wait, I have an idea: Let’s consider the Strava track for that ride as a whole. It will show that I stopped and waited for Tobias at the north end of the Golden Gate Bridge. It will show that I waited again at the Hawk Hill summit. It will show that I stopped at several traffic lights coming back down Arguello. It will show I stopped at lights on Oak and on Divisadero and at 14th and Castro, the first of three that Pollak said I ran. That’s hardly a race.”

“No, it’s not.”

“By analyzing the GPX waypoints, we can get a total stationary time for the ride. I would estimate it to be around fifteen minutes. A two-hour ride with fifteen minutes of stopping is not a race.”

“Let’s give it a try.”

“Okay. Gimme ten minutes.”

I hung up, crunched the numbers, and sent the results to Ted. The GPS trail for March 29th showed sixteen minutes and twenty-three seconds of stationary time on a ride that covered twenty-some miles in two hours and fifteen minutes—not race conditions by any stretch of the imagination. I didn’t find it difficult to convince Ted that I wasn’t racing; he was one of a few people already on my side.

Gascón, however, presented a much bigger challenge. He refused to meet with Ted or me. He refused to talk to us on the phone. Gascón found this case important enough to his career and his politics to hold press conferences about it, write up press releases about it, and, through a series of orchestrated leaks, provide all the soundbites the media could possibly need to fan the flames of cyclist hatred in San Francisco. But Gascón wouldn’t deign to speak with my attorney or me—the person most impacted by his relentless prosecution.

As Ted and I remained befuddled by this intractable DA, I began to think that we needed to consider a different approach.

CHAPTER SEVENTY

30 April 2013—397 days since the accident

There was a continuation hearing today—one of many, with undoubtedly more to follow. Ted and I went to the Hall of Justice, always expecting (but these days, rarely encountering) media. Per the custom, I sat in the gallery while my attorney went back into chambers with Omid and spoke with the judge.

With the preliminary hearing behind us, we had a new judge: the Honorable Justice James P. Collins. Another former cop, he had practiced, of all things, criminal defense for thirty-one years before being appointed to his judgeship. He and Ted were contemporaries, if not colleagues. In fact, the Chronicle once named Cris Arguedas (one of Ted’s two partners) as one of the top ten lawyers in the Bay Area alongside Collins. Judge Collins, back in his attorney days, had such a formidable reputation that it led one “veteran legal observer” to tell the Chronicle that if he got in trouble with the law, he would “call Collins even before he would call his wife.”

I had high hopes for Judge Collins. I figured he’d quickly see that the prosecution’s case was a joke and dismiss the charges as frivolous and unwarranted. Because our last judge, the Honorable Andrew Cheng, denied our 17(b) motion “without prejudice,” that meant that Judge Collins couldn’t reduce the charges to a misdemeanor—even if he wanted to do so—until sentencing (i.e., until I pleaded out or was found guilty). But he could still throw out the charges completely.

Ted and Omid emerged from the door that led to chambers—and also presumably to the jail, since that was the same door that the men in orange jumpsuits and shackles emerged from and returned through. I couldn’t get a sense for how things went from Ted’s disposition—he looked affable and wired on a lot of coffee, as per usual. We dispensed with our hearing in thirty seconds, agreeing to put new dates on the calendar. Then we abruptly left the courthouse. When we reached the exterior stairs that led down to Bryant Street, Ted broke the silence.

“You’ll never believe what Judge Collins did.”

What? Tell me.”

“He flipped through the felony complaint, then looked up at us and said, ‘Oh yeah, this is the guy who killed an old man with his bike and blogged about his helmet, right?’”

The color drained out of my face. “You’re fucking kidding me, aren’t you?”

“No, I’m afraid I’m not.”

“I told you we needed to do something about all the outrageous coverage in the media. You told me it didn’t matter.”

“I never said it didn’t matter!” snapped Ted. “I said there was nothing we could do about it. Not without making things worse.”

“Well things are pretty fucking bad when this allegedly sympathetic judge—with his outstanding reputation and criminal defense background and all that shit—recites to you a false media narrative. I get that your average Joe doesn’t know any better, but isn’t Judge Collins smart enough to call bullshit on this?”

Ted let that question hang in the air long enough that it became rhetorical. Then, he continued: “You know what else happened?”

“I can’t wait. Lay it on me.”

“Judge Collins asked Omid, point blank, what the Hui family thought of the charges and the prosecution.”

“And how did Omid reply?” I asked, recalling the story we had heard from Rick Johnson, the Hui family’s attorney, about how the wife Betty wanted no criminal charges so that she could collect as much money from me as possible in civil court, per the advice of her counsel. In contrast, the son Terry Jr. wanted the book thrown at me, long and hard. Apparently he didn’t care about the money; he wanted revenge.

“Omid said that the family would do whatever he told them to do.”

What?

“You heard me.”

“Yeah, I heard you, but I’m not believing what I’m hearing. You know why? Because it’s fucking unbelievable! Did Collins say anything about that?”

“Not a word.”

Omid’s manipulating the grieving family? That’s unfathomable.You know what? That’s fucking gross! It’s repulsive. Omid, Sharon, Gascón, all of them, they’re repugnant. They’re foul. They disgust me.”

“Well, now we know who’s really calling the shots.”

“These DAs and ADAs should be ashamed of themselves and their conduct. They’re gonna get the outcome they want even if the family wants the opposite.”

“I think they think they’re just doing their jobs, Chris.”

CHAPTER SEVENTY-ONE

21 May 2013—418 days since the accident

Today Ted, Judge Collins and ADA Omid went back into chambers at the Hall of Justice and discussed my case, off the court record. Meanwhile, I sat just across the street from the giant cinderblock in Café Roma, where it seemed that every customer either wore a dark suit and carried a briefcase or wore a blue uniform and carried a firearm. I never could seem to relax in this place, so I grabbed a seat with my back in a corner, and faced the entrance so I could watch people coming and going. I pulled out my laptop and tried to look busy.

I felt a tap on my shoulder and nearly jumped out of my seat. A stocky man with stark white hair, a matching white mustache, and a navy suit was trying to get my attention. How did he sneak up on me like that? At first glance, I thought it was Michael Mahoney, the “expert” witness.

“Chris, I want to wish you the best of luck,” he said. “I also want you to know that you’ve got the best criminal defense attorney in the Bay Area. If I were in your shoes, I would go straight to Ted.”

About halfway through his words of encouragement, it dawned on me that this was one of my attorney’s many professional contacts; I had seen them chatting earlier that morning.

“Thank you, I know—but it never hurts to hear it again,” I said with a smile, bidding farewell to the nameless man who looked a lot like Mahoney.

I tried to re-immerse myself in busywork, but moments later, I got a text from the best criminal defense attorney in the Bay Area. Time to head into my least favorite building in San Francisco.

Thankfully, the TV news hadn’t turned up at the Hall of Justice. And Ted was beaming, a rarity in his line of work.

There must be some good news.

Ted told me that the prosecution had finally conceded that they didn’t have enough evidence to prove that my light was red. During the preliminary hearing, they had introduced video evidence that proved that my light was yellow, thereby disproving that it was red (or any other conceivable color besides yellow). But that was a distant memory, quite meaningless at this point.

So, after fifteen months of fighting against my city’s government, and legal fees approaching six figures, they had finally dropped the red light charge. It seemed like a small victory, but I didn’t much feel like celebrating. It still wasn’t clear to me how—by conceding the red light allegation—their whole house of cards hadn’t come tumbling down, resulting in a dropping of charges.

On the way out of the Hall of Justice, Ted asked me a question I hadn’t heard before.

“Have you ever made eye contact with the family?”

“No. I’ve noticed that they’re there, but I’ve never looked at them. Why do you ask?”

“They said that you’re not showing any signs of remorse. Perhaps you could try to look more sorry.”

I didn’t really know what to say.

Fifteen months earlier, I had narrowly escaped death in a horrific bike accident. An hour after I got home from the hospital, the media coverage hit in full force. Blowing several red lights and stop signs! Blogging about the accident! Riding a fixie without brakes! Felony charges! Need for speed! Racing on Strava! Those bells had all been rung—and, as my former teammate Vitaly Gashpar wrote so many months ago, we couldn’t un-ring them. Now, inconceivably, my light—the light—which should determine how the scales of justice would tip—finally, it seemed—had been yellow all along. That meant that the right of way I claimed from the start—predicated upon entering the intersection on a yellow—was finally mine to be had.

Yet in this very same conversation, Ted asked me to look “more sorry.”

The DA had just handed me the right of way, clearing the path for my complete exoneration, but I was so jaded from so many battles that I didn’t even know how to celebrate a victory anymore. I had been on the defensive for so long, it was hard to remember other feelings—like being sorry.

I had been deeply sorry fifteen months ago. Being sorry was there right from the very beginning—but that emotion had gotten crowded out by fear and anger and frustration from months of death threats, financial peril, personal attacks from a DA out for my hide, and from being ambushed by the local media, always looking to make a buck on the salacious details.

Finally, after a pregnant pause, I responded.

“Ted,” I said, slowly and calmly, “you know how I feel about you. You know I think you’re the best criminal defense attorney in the Bay Area, something I would believe anyway, even if a dozen other people hadn’t told me so. That being said, you’re still a lawyer. And lawyers have the uncanny ability to emotionally distance themselves from any shred of human integrity. You can argue either side of an issue with equal fervor, even if you know that one side is completely wrong. But me? I don’t have that skill. For better or worse, I am who I am. I can’t look sorry and remorseful if I didn’t do the things I’m supposed to be sorry for. I’m not a goddamn actor.”

Ted opened his mouth to speak, but I cut him off. For once, he didn’t protest.

“Sutchi Hui, Betty Hui, and Wen-chih Yu, three people crossing against a DON’T WALK symbol, sandwiched me between them. I did everything I could to avoid all the jaywalking pedestrians, but they didn’t have the right of way—I did. And in the end, I avoided all but one of them. And that nearly killed me as well. Now I’m under siege by the crazy-ass city government and the media, facing a jail sentence, and undoubtedly a massive civil suit for something I didn’t even do. It’s all because no one could wait for the motherfucking WALK symbol, Ted. And now you, of all people, want me to look sorry?”

“But you were still speeding.”

“Jesus! Who do you work for? Me or the DA? Nobody can prove I was speeding with any reasonable amount of accuracy.”

“What about the video?”

“It’s too low-res so you can’t determine my position accurately enough to deduce speed. Even if they managed to get a speed, it would end up somewhere in the mid-to-high twenties. Even someone as corrupt as Gascón couldn’t possibly send me to jail for even a day for going twenty-seven in a twenty-five and then not being able to avoid jaywalking pedestrians—let alone for six years.”

“You already spent a day in jail.”

You little fucker! You know what I mean.”

“You know you were going too fast.”

How the hell else was I going to get myself out of that intersection? I had three and a half seconds. If I held my speed and everyone waited his or her turn, I would have crossed into the southern crosswalk when the WALK symbol came on and well on my way down toward 18th Street by the time pedestrians started walking.”

“Or you could have stopped.”

Where? That would have just guaranteed more people getting hurt—or me getting hit by a car as I skidded into the intersection causing a massive pile-up. Or hitting even more pedestrians.”

“Then you admit you were going too fast to stop, which is a basic speed violation.”

“Okay, fine, you got me! I’m guilty of a basic speed violation. That’s what the responding officers put in the police report, isn’t it? Looks like they actually got one thing right. Still not worthy of a felony.”

“And you know your speed could affect your right of way?”

What? I’ve pored over the entire California Vehicle Code, cover to cover, and I promise you, there’s no law in there that says it does.”

“If it’s not specified in the CVC, then it’s open to interpretation.”

“So let’s force a trial and find out!”

“Let’s not and say we didn’t.”


At dusk, needing to calm my raging thoughts, I went for a run in the open space near our home. As I emerged from the trees, I sat down where I could see for maybe thirty miles. Though it seemed no bigger than a postage stamp, I could see San Francisco nestled between the water and the clouds.

Why had Ted grilled me like that earlier?

I thought we were fighting on the same team, but now he was hung up on basic speed and questioning my right of way.

The city looked like a castle in the sky. I had grown up in the Bay Area and spent most of my adult life here, too. In 1999, I had fallen in love in San Francisco, with a woman I would later marry. We’d raise a child together. Such good memories.

I caught my breath as my thoughts did battle with one another.

San Francisco betrayed me. But was it her fault? San Franciscans didn’t know they were being told a fairy tale by a prosecutor who was manipulating the media to make a statement. They didn’t know all the things I had to do to defend myself, I—

At that instant instant, time stopped. Everything froze around me. The world had gone silent; all I could hear was the sound of my own thoughts.

Finally, 418 days after I smashed my head into the pavement, I arrived at the heart of the matter: No matter what, I’m guilty. Guilty of killing a man with my bicycle. And that’s the only thing that matters. The rest of this is just a distraction, mere made-for-TV bullshit.

I realized in that moment that I had let the bullshit consume me. I was so hung up on keeping myself out of jail—because I needed to be there for my wife and daughter. But they had lost me long ago. So many nights, instead of reading my daughter a bedtime story and curling up with my wife in bed, I had stayed up until two or three in the morning, poring over the same facts and reports, obsessed with every minute detail.

In trying so hard to avoid jail, I couldn’t see that I was a prisoner of my own compulsions. I could think about nothing other than winning this absurd case, proving my innocence, disproving these ridiculous charges, and keeping myself out of the news. If only proving that I had entered the intersection on a yellow light would take away the pain of what had happened next. But nothing could. Nothing would ever heal that wound.

In my obsession, I had lost sight of the only part that mattered. Regardless of what anyone was saying about me, or doing to me, or how the laws were—and weren’t—being applied to me, I was guilty of not riding safely enough to save Sutchi Hui from harm. I wasn’t defensive enough. I wasn’t careful enough, quick enough, skilled enough. Even if there hadn’t been a right decision to make, I had still made the wrong decision. And an innocent man—a grandpa, a husband, a father—had died. Despite thirty years of riding safely, I had failed at riding safely that morning.

And that is the only thing that matters.

I stood up and time started moving again. I need to make this stop, now. I need to focus on what’s important.

When I got home, I wrote a long email to Ted. Then I wrote a heartfelt private apology letter to Mrs. Hui, expressing my remorse over the role I played in her husband’s death, which went far beyond the sentiments of the card I left in the hospital. I printed it, signed it, and planned to give it to Ted at our next meeting.

CHAPTER SEVENTY-TWO

20 June 2013—448 days since the accident

“So, it’s over?”

“Yes.”

“We have a deal? Just like that? It’s really over?”

“Yes.”

“So, how exactly does this whole felony-to-misdemeanor conversion work?”

I sat, one leg tucked under the other, leaning forward toward the desk of Ted Cassman, the “C” in ACH, Arguedas, Cassman & Headley, L.L.P., the law firm I had retained more than a year ago to represent me. My expenses had exceeded six figures, but right then I didn’t care who was on the clock and who wasn’t. I needed to understand what was happening to me.

Ted stood behind his desk, arms crossed, holding a compostable cup of coffee in his left hand. He eyes were red and bleary. He’d been traveling. Pittsburgh. And before that, his son’s graduation from Stanford Law.

In Ted’s right hand, he held my apology letter to Mrs. Hui. After a read, he had given it his approval and promised to pass the letter on to Omid to give to the family. Then he looked me right in the eye, as he always did, and proceeded to explain this bizarre arrangement.

“Gascón gets his felony conviction. He gets a big media win. Then, after eighteen months—or whatever term we agree to—your felony becomes a misdemeanor.” Ted spoke exuberantly, like we had won the lottery or something. We were interrupted by an urgent phone call and a story from Ted about a laptop left on a plane.

“So what about the conversion-to-misdemeanor part?” I tried to put us back on the rails.

“What about it?”

“Is it out there in public? Will the media write about it?”

“No. No one will hear about that.”

“So I’m gonna be a felon. As far as the world is concerned, a felon for life.”

“I know, Chris. This is what Gascón has wanted since the beginning. He wanted his felony. Now he gets his felony.”

“He told KCBS that he was gonna go for felony fewer than two weeks after the accident. I think it was April 10th. Before the video even came out! Before the SFPD had presented the case to his office. Jesus! I remember sitting in the car, listening to him on the radio, recording it for you and thinking, what the fuck am I hearing?

“I know, Chris. I know. What a long, strange trip it’s been,” Ted said.

Usually, evoking the Grateful Dead had a way of putting a nice little bookend on the topic of conversation, but not this time.

“He was prejudiced from the start, Ted. He can’t get away with this! And you and I both know that the law is on our side. He can’t do this!”

“He just did,” said Ted, with a tone of resignation.

“So Gascón gets a felony, exactly what he wanted all along,” I said. “Exactly what he told the media would happen before he even knew what the hell he was talking about—and by saying that, I’m not implying that he ever knows what he’s talking about, just to be perfectly clear. The burden of proof lies with the DAs, yet they still haven’t shown us anything to support any of their claims. And they’ve leaked all manner of crooked things to the media, destroying my reputation, my credibility—my future. And me? What do I get out of this?”

“You. Don’t. Have. To. Go. To. Jail.” Ted spoke slowly and sternly, pausing between each word.

And I knew he was right.

A big, roaring heat wave inside me still yearned for these outlandish charges to be dropped. In fact, I still wanted a public apology for wasting my time and money and destroying my reputation. But Gascón—through a series of cold, calculated leaks of false information to the media—had sealed my fate long ago.

“I want a trial, Ted. I want a goddamn trial.”

“We can’t go to trial, Chris.” Ted looked at me, no doubt feeling a bit exasperated. We’d had this conversation before, and it always ended the same way. My emotions had thrown in the towel, but my compulsive side remained stubborn; I couldn’t let go.

“We can win this, Ted! We’ve already gotten them to drop the red light charge. With the red light charge gone, I had the right of way, so then they should drop failure-to-yield. So what do they have left? Speed? Their ‘expert’ said thirty-two miles per hour, right? We know he’s wrong, but worst case, they get me at seven miles per hour over the posted speed limit. And that’s it? Eight jaywalking pedestrians jump out in front of a bike going SEVEN MILES PER HOUR over the speed limit with the unquestionable right of way. You think I’ll get convicted on that?”

“I don’t think you’ll get convicted. I know you’ll get convicted. And you’ll risk getting jail time, too. We’ve talked about this before, Chris. To have the right of way, you need to have entered the intersection lawfully.”

“I did. The light was yellow.”

“But you were speeding.”

Ted was probably right, but I had to make sure he was sure. If I sensed a weakness in his argument, I would exploit it. It had taken me many months of sparring with Ted to understand how to argue with him. Leave out the emotion; stick to the facts. He still won every argument, but at least I could keep up with him a bit better now.

“Do you remember that section of Virginia’s vehicle code? In that state, speed above the posted limit nullifies right of way. But there’s no such law in the California Vehicle Code,” I said. I had done my homework.

“That means it can go either way.” Ted answered. He always has all the answers.

“So you’re saying they could use my alleged speed infraction to cancel my right of way and hit me with failure to yield?”

“Yes. They’ll hit you with everything they’ve got.”

“Well, they’ve already burned three eyewitnesses, one of whom perjured himself so badly—it was hard to believe how he just shrugged it off—he was such a mess, he probably didn’t even know what he did to himself up there.”

“Yeah, Nathan Pollak was most likely on drugs,” Ted said. “I can’t explain his behavior any other way.”

“Yeah, probably crank, plus maybe a bad hangover. Or maybe he’s a pathological liar, just can’t help it, even if he tried. So, anyway, they’ve got three eyewitness accounts that were flatly contradicted by the surveillance video, an ‘expert’ who was embarrassed off the stand, and all they’ve got left is speed, which they still haven’t proven. What are they going to do to me now?” It was an honest question.

“They’ll find more witnesses. They’ll get a new expert, someone less incompetent than Mahoney. And they can go for basic speed, too.”

Basic speed law—the often-neglected stepchild of the prima facie (posted) speed laws—states that your speed should be appropriate for the conditions, e.g., if the posted speed is sixty-five but a dense fog limits visibility, then the basic speed law might mean that you can only safely go twenty-five. Other conditions—like rush hour traffic, a bus, steep hills, train tracks, potholes or, say, being on a bike—could all play into a potential basic speed violation. Every one of those factors applied to my case.

“Yeah, they could really get me on basic speed. I still can’t believe we’re talking about six years in jail for going seven miles over the posted speed limit or violating the basic speed law.”

“You’re not going to jail for six years. Or at all. Not if you take the deal. Why do you still want a trial? Why risk it?” I could see that Ted was getting frustrated.

“Because I’m right! Because I still think we can win! The facts are on our side. We can get an acquittal! We can show Gascón that overcharging me was a terrible mistake.”

“No, we’ll lose. Plus it’s going to cost you another $35,000, and that doesn’t even include paying for our own accident reconstruction expert, PI hours, and a PR firm to do the market research to support our motion to change venue.”

“We were out of money $50,000 ago.”

“Well then that’s another reason you shouldn’t go to trial. You want another?” I suspected that Ted was going to tell me anyway, so I just gave him a blank stare.

“The autopsy photos, Chris. You’ve seen the autopsy photos, and you know we couldn’t stop them from being admitted as evidence during the PX. Those jurors will take one look at those autopsy photos and, no matter how many facts we put in front of them, no matter how many sections of the vehicle code we read, no matter that the pedestrians all crossed too early, no matter that you had the right of way, no matter that you have no criminal record, no driving record and 30,000 safe cycling miles under your belt and more than a dozen mitigating letters from all sorts of prestigious people—including a California attorney general—no matter what: You’re getting convicted. And then you’re going to jail. Gascón repeatedly and shamelessly leaked false information to the press in order to destroy you, so you’re already guilty in the public’s eye. There isn’t a snowball’s chance in hell that you’ll get a fair trial. Think about what your family will have to go through. More publicity. More leaks of false information. More death threats. Think about your wife. Think about your daughter.”

My wife and daughter were my #1 and my #1; Ted knew how to hit where it hurt.

“So lemme get this straight. I’m going to be punished for operating my bike like a vehicle in adherence with most, if not all, applicable sections of the vehicle code at a speed at which a vehicle would normally travel through that intersection. So I guess the vehicle code doesn’t matter anymore; perhaps it never did. Nor did the color of the light make any difference. Speed? No, it’s not really about that either.”

“You’re catching on now, finally.” Ted twisted his face into a wry grin.

“It doesn’t matter if that light was red, orange, yellow, green, or purple. You killed a pedestrian with your bike. Gascón’s got us backed into a corner. And when Judge Cheng denied the 17(b) motion without prejudice, we took it on the chin, again. Now no one can mention misdemeanor again until sentencing, meaning that a judge wouldn’t even give the misdemeanor-conversion option to a jury. Gascón gets his felony no matter what. He needs to make an example out of you—and that’s what’s happening. Like it or not, you’re the fall guy for every bad cycling behavior in the Bay Area, Chris. You need to get over it and take the deal.”

Get over it? This is bullshit, Ted! What Gascón’s doing is vile. And it’s politically motivated! It’s about reversing the damage he did by not charging Randy Ang with a felony and throwing his ass in jail. This is fucking bullshit, Ted, and you know it. They’re forcing our hand. You’re acting like you’re empowering me to make some kind of decision, yet in this contrived scenario, there’s only one possible choice: I have to take the deal.”

“That’s the right decision,” Ted said, with a smirk, surely observing that I had slipped down the precipice from facts to emotion.

“You made me an offer I couldn’t refuse,” I said with a sigh of resignation.

Taking this deal would keep me out of jail. Any other decision would be stupid and costly—reckless, even. Not taking the deal would cause this madness to continue for months or even years, giving the DA more opportunities to slander me, and distracting everyone from what was important.

“I’ll do everything I can to shrink the duration of the felony. I think I can get one year or less on that and maybe 500 to 1,000 hours of community service.”

“It doesn’t really matter to me how many community service hours I get. I’ll do whatever community service they want me to do—in fact, I’ll do whatever the hell they want me to do. The bottom line is that I don’t have to go to jail. And I’m not staying a felon for any longer than I have to in order to give Gascón the media narrative he so desires. Then maybe I can rebuild my life and start to process what actually happened here, something that got lost because of this circus. Thank you, Ted, for keeping me out of jail. This has been really hard on me. And my girls, too. But it would be much worse if I had to go to jail. One day was more than enough!”

And with that, Ted ushered me out of the law offices of Arguedas, Cassman & Headley. It might be my last visit here, I thought. I rode my bike to North Berkeley BART to catch a train back to my office in the San Francisco’s Financial District. Soon after, I would tell my wife, my brother, my parents, and eventually my coworkers, that the end was near.

Without a doubt, in just a few days, in the library in the Hall of Justice reserved for press conferences, DA George Gascón would step up to the podium, in front of a half-dozen microphones and video cameras, and proceed to tell the world exactly how swiftly and deftly he charged, apprehended, processed, and punished the nation’s first bicycle felon. He would win his vehicular manslaughter case and make a felon out of me, a software developer, long-time Bay Area resident, and guy who likes to ride his bike—and who had been doing so safely and uneventfully for almost his entire life.

Gascón would undoubtedly speak of justice. And somehow—through ignoring the law, leaking false information to the media, and manipulating the Hui family—”justice had been served,” whatever that meant. He would tell the cycling community—from tourists to occasional commuters, from hardcore roadies to hipsters on brakeless fixies, from daredevil downhill mountain bikers to the patently insane messengers—that they should heed his warning: The rules of the road apply to everyone.

And if you’re on a bike, those rules apply—doubly so.

CHAPTER SEVENTY-THREE

25 June 2013—453 days since the accident

Though I still felt very uncomfortable about pleading guilty to a felony, I needed this all-consuming nightmare to end. Ted implored me, over the phone, for the last time, to accept the plea bargain being offered, which they called “their final offer:” a bizarre deal in which I would get three years of probation and 1,000 hours of community service, but in which my “felony” would get converted to a misdemeanor six months after the date of sentencing.

My wife and I had already spent well beyond our means to fight back at this relentless bullying by the DA. As much as we wanted the facts to come to light in a trial, we couldn’t afford the financial and the emotional toll it would entail. Ted simply wanted me to hurry up and make up my mind.

“We have until the 18th of July to settle before we lose Judge Collins,” he warned.

“He’s been a huge help so far,” I said sarcastically. “Big. HUGE.”

“Come on, that’s not fair. It could be much worse, and you know that, Chris.”

“Okay, fine. But if I plead out, the 995 motion will never be heard.”

“You’re right, it won’t. But it will remain on the court record.”

“I need to talk to Carroll. We need to think this through.”

“Of course.”


>> Continue to PART IX: The Message


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