Noteworthy Cases

In 30 years of practice, I have represented thousands of clients. I have had dozens of jury trials - everything from first degree murder to driving under the influence. While my emphasis in recent years has been in marijuana cases, I still handle virtually every type of criminal charge. In rare instances, I represent civil clients. Here is a sampling of "noteworthy" cases I've handled:

Ben Rice, Mrs. Nichols, and Geraldo.

$390,000 Award for Deputy's Excessive Force In 1994, I represented George Nichols in a lawsuit against Santa Cruz County alleging unlawful arrest and excessive force. Mr. Nichols recovered $390,000 in this highly publicized case. His wife had been videotaping their children when a deputy began an illegal arrest and assault. Mrs. Nichols videotaped her husband's beating and arrest. That famous video led to our appearances on many national TV news programs including the Geraldo show in New York City. The deputy remained on the force despite the Federal Judge's ruling that he'd violated Mr. Michol's constitutional rights and the nearly $500,000 the county needed to pay in attorney fees and settlement to Mr. Nichols and his family. View the June 2, 1994 Newspaper article in Adobe Acrobat Read about the complaint process concerning abusive police. View the video (WMV) of the illegal arrest and beating video.

The So Called "Road Rage Murder" Case

In 1997, I was retained by David T. to represent him in what became Santa Cruz's infamous "road rage murder case." David was chased by a drunk and enraged driver over Highway 17 from Los Gatos to Santa Cruz. After pulling off and on the freeway and reversing directions, David finally pulled over at 41st Ave, put on his emergency flashers, and hoped the driver would pass on. Instead, the driver pulled over, jumped out of his car and walked towards David's car. David was a restaurant owner who carried large amounts of money in his car at night. He had also made a mistake - he carried a gun in his car with no training in its use. When David tried to scare the attacker off by showing him the gun, the attacker grabbed the gun. In the struggle for the gun, it went off, killing the attacker with one shot. David panicked and instead of going home to Aptos, he drove back over the hill to his parents' home in San Jose. Police identified David as the shooter because the attacker had written down his license plate number and had left it on his front seat.

Because of the publicity and the District Attorney's initial tactics, I knew I needed to gather a great team: the best people available. I hired Margaret Marr as our research attorney. A 1985 Graduate of Yale Law School, Ms. Marr has crafted outstanding legal briefs through the years and has helped win dismissals in many difficult cases. While she does continues to do contract research and writing, she is now a law school professor in Washington DC - professormarr@gmail.com. Robert S. Bortnick was the private investigator (PI) on the team (Bortnick and Associates 831.423.5122.) Bortnick is a brilliant PI with over 30 years of national and international investigation experience. Phyllis Wasserstrom assisted in jury selection and mojo.

The County's then District Attorney and his Chief Deputy, presented the case to the Grand Jury. They asked for and received a murder indictment. Afterwards, Superior Court Judge Yonts agreed with us that the District Attorneys had misrepresented the evidence to the Grand Jury. The Judge threw out the murder charges against David. The DA re-filed the murder charges and insisted on a plea to murder.

After we learned more about David attacker, we figured that the attacker might have acted dangerously crazy on other occasions. Leaving no stone unturned, Bortnick checked with the neighbors of the attacker's Denver girlfriend and found crucial evidence. A neighbor couple had been attacked in much the same fashion as David had experienced and described. We also found a policeman in Wyoming who had stood by while the attacker's girlfriend had removed her belongings and left him behind on a trip they were on just two weeks before his attack on David. We prepared a psychiatric autopsy which included exhibits showing pages from the man's diary where he described the ruin he was living- writing about his anger alienating everything and everyone dear to him.

Margaret Marr, Ben Rice, Robin Ziegler, Bob Bortnick & Phyllis Wasserstrom after the not guilty verdict (Jan 1997).

We spent nearly a month in trial in Judge Tom Kelly's court presenting this and other evidence. The jury acquitted David of any murder (first or second-degree) and also of voluntary manslaughter. The jury deadlocked 10 - 2 in favor of acquittal on the lesser charge of involuntary manslaughter. In an unprecedented move (because of the jury's strong rejection of the DA's case), the DA chose to re-file the remaining involuntary manslaughter charge. The judge indicated a county jail sentence of one year if David would agree to plead no contest but David rejected this offer. However, while preparing for the retrial of the remaining involuntary manslaughter charge, David's dad suffered a heart attack. He survived but David decided to end his family's trauma, and he accepted the judge's offer.

View the Feb. 1, 1997 Newspaper article in Adobe Acrobat
View the Feb. 8, 1997 Newspaper article in Adobe Acrobat

Mr. Twister and Ben Rice

The Defense of Mr. Twister Oddly enough, the case that garnered more interest than any of the so-called "high profile" cases I have handled was the defense of Mr. Twister. Mr. Twister is the Santa Cruz clown who makes balloon animals for children at the Wednesday Farmers Market downtown and for children's parties. Mr. Twister was arrested for violating a law that outlawed the act of putting money in someone else's parking meter without their permission! Putting quarters in others meters had been Mr. Twister's plight and my "pro bozo" representation of him received international attention. Besides appearances on national television and write-ups in People Magazine, Readers Digest and newspapers across America, Mr. Twister and I were featured on television and radio in numerous countries around the world.

The Colter White Story

One of the most satisfying cases for me in recent years was representing Colter White, a 38 year old Cabrillo College student, who had turned his life around after being in and out of trouble his entire adult life. While in Pelican Bay, California's toughest prison, he had decided to get his GED and make a change. He worked very hard, paroled, and became an honor student at Cabrillo College and a leader in the local Narcotics Annonymous community. Colter's stunning turn around made him a very popular student and his family, friends and teachers alike were excited by the prospect of his going on to a university. Unfortunately, with only a short time left on his parole from prison, Colter criticized an NA member at a meeting for using NA as a way to meet young, addicted women and taking advantage of them. This individual had several restraining orders taken out by women over the years because of his conduct. He told people he was going to "get" Colter for criticizing him.... He said he would "get him sent back to prison for violating parole". Sure enough he made a claim that Colter had assaulted him. There was no evidence beyond his claim and the District Attorney's Office didn't charge Colter. Nevertheless, the Parole Department picked Colter up and sent him back to prison to await revocation proceedings. Colters mom and step-dad and Cabrillo students and faculty held a protest and when I read about Colter's plight I offered to represent him pro bono.

The chances of winning a parolee's release after they are charged is very low. The first hearing took place in San Quentin Prison. An old, ghastly prison that feels like it was designed to emulate the Middle Age prisons of England. No witnesses are permitted at this first hearing and it was obvious the hearing officer knew he was going to rule against us the minute the hearing started. Colter turned down his offer of a "deal" — ten months in prison — though he knew that he could lose at the final hearing and get more prison time. We "lost the hearing" despite letters of support from the President of Cabrillo College, many faculty, staff and students, and top legislators from our area. I also submitted P.I. Bob Bortnick's interviews with witnesses that showed the "victim's" sordid history and motive to lie.

At the second hearing the so — called "victim" testified. He was a liar who quickly showed himself to be one. Our witnesses were terriffic and before long the hearing officer stopped the hearing and found Colter innocent.

As of today, May 2011, Colter is continuing on his upward path and working hard at the University he, his family, and his community, dreamed he would attend.

Click here to read the full article.

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2011:

Voted best Santa Cruz lawyer in Weekly's newspaper reader's poll.

Voted " Roland K. Hall Award" winner by the Santa Cruz County Bar Association. The award is presented by the SCCBA to attorneys who have displayed outstanding public service to their community. The recipient must excel in the profession, be in good standing with the Bar and have provided outstanding community service over the years. In addition, the recipient should" epitomize the spirit of Judge Rollie Hall and be a credit to his memory. He or she should be eclectic and kind-spirited, someone who works hard, plays hard and has a sense of humor."

Helped shape the Santa Cruz County ordinance allowing for medical marijuana dispensaries.

I am still WAMM's Pro Bono lawyer. I represent WAMM patient members locally and the organization when legal issues come up.

Speaker at Jan. 29 Cal NORML's "Marijuana Reform: Next Steps" program.

Client charged with murder was found "factually innocent" requiring all law enforcement records to be erased. See the section on record clearance to understand how unusual and great that is.

2010:

Voted best Santa Cruz lawyer in Weekly's newspaper reader's poll.

In January we settled WAMM's seven year law suit against against the DEA and United States Attorney. (We began our litigation with John ["I never saw a boob on a statute I liked"] Ashcroft, then when he retired we named his successor, Alberto ["I don't remember"] Gonzales and ended with Eric Holder. The lion's share of the credit for that successful litigation belongs to Professor Gerald Uelmen; Graham Boyd, Allen Hopper and the American Civil Liberty Union's Drug Reform Policy Project; Daniel Abrahamson of Drug Policy Alliance; and outstanding attorneys from Bingham, McCutcheon's Pro Bono Litigation Dept., of San Francisco. Please see the marijuana section for more about WAMM and this trailblazing case.

Joined the Kuumbwa Jazz Center's Board of Trustees

Represented a gentleman with 550 plus large outdoor flowering marijuana plants and persuaded the District Attorney not to file criminal charges.

Persuaded a different Assistant District Attorney to dismiss a case against a client whose property was searched with a warrant obtained with false and misleading information after an overflight by deputies. They took GPS coordinates from over my client's rural home while taking pictures of a large marijuana garden 1/4 mile away (different clients).

Represented a nurse in trial for theft from Sears. The woman was found not guilty because we were able to show her conduct was not the result of criminal intent but rather a mistake due to her exhaustion.

Persuaded an Assistant District Attorney to dismiss a DUI charge against a psychiatrist client who nearly had an accident due to falling asleep behind the wheel but who CHP thought was under the influence of drugs.

Represented many collective medical marijuana gardens in Santa Cruz, Monterey and San Benito Counties.

2009:

Voted best Santa Cruz lawyer in Metro newspaper reader's poll.

Voted "Pro Bono Attorney of the Year" by Santa Cruz County Bar Association.

With my co-counsel, Greg Coben, won a dismissal of a murder charge for an innocent man connected to a stabbing outside the Red Room in downtown Santa Cruz.

Represented a man facing 25 years in prison for Vehicular Manslaughter: he was sentenced to two years in county jail.

Represented a local, successful building contractor accused by his ex girlfriend of raping her ten times over three years- Proved he was innocent and no charges were filed.

2008:

With my co-counsel, Greg Coben, represented pro bono a homeless woman accused of battering and resisting a police officer. He broke her arm. The city paid out $25,000. to settle her case.

At the request of Barrios Unidos, represented a young Hispanic man pro bono who was accused of battery on a police officer and resisting arrest. Pled to drunk in public and was required to do volunteer hours with Barrios Unidos.

Represented many people charged with marijuana cultivation and possession for sale. One example:

My client had what law enforcement claimed was enough marijuana under cultivation to produce 24 lbs. of bud. On the eve of trial the District Attorney agreed to a plea deal with a misdemeanor charge, no jail, one year of informal probation and no objection to a dismissal after the probation.

2007:

A sampling of cases:

A Santa Cruz gentleman found with 100 pounds of marijuana in his home and well over a million dollars in difficult to explain assets (one half million in cash, one half million in various accounts and 7000 bottles of fine wine caught law enforcement's eye). While on $500,000.00 bail he was arrested in Sonoma County with seven pounds of marijuana and hashish. The marijuana in both instances was mainly destined for medical marijuana patients through dispensaries but the prison exposure was over ten years given the gentleman's unfortunate decision to also sell to some friends out of state. The District Attorney asked for a six year state prison sentence, and the probation department (incredibly) asked for eight years. He served eight months in county jail and saved his home and many of his assets.

Another client had one pound of marijuana found in his car after he was pulled over by narcotics officers. Evidence suppressed after a Superior Court Judge agreed the officer lied: the car stop/ detention was illegal. Case dismissed.

Another client's case was dismissed and three lbs. of medical marijuana was returned.

A ten year veteran SJ police officer was charged with a felony battery on his son. A Superior Court Judge agreed with me that there was insufficient evidence and the case was dismissed.

Another client was charged with attempted murder: he pled to non-strike felony battery and served nearly all of his eight month sentence on home detention with an ankle bracelet.

A client, a UCSC graduate student faced charges after she resisted a professor's grab of the microphone she was using during a Q and A period after a lecture by a visiting professor. Client was charged with battery of the professor. Case dismissed.

A client was cited for honking her horn in support of marching demonstrators. Pro bono: Dismissed.

Another client was cited for having her dog off leash in a state park. My client is legally disabled and uses her licensed service dogs to assist her. Pro bono: Another stupid case where criminal charge was dropped.

A client is a school crossing guard and was threatened with criminal charges when he crossed kids while wearing his mountain man costume and holding his musket. Each year he is invited to local schools to teach children about the mountain people of the civil war era. Pro bono: No charges filed.

Representation of the Santa Cruz Measure K defendants sued by the city. Measure K was passed overwhelmingly by our voters and makes enforcement of marijuana crimes the lowest priority for the Santa Cruz Police Department. The measure also creates a commission which is charged with (among other things) review of the police department's practices relating to marijuana "crime" enforcement.

Pro bono: Negotiations led to a compromise. The measure survives but lost needed powers. It remains to be seen if this commission will accomplish what the voters support and what the commissioners appear to want.

I helped my friend and frequent colleague, Greg Coben (831.809.5593) represent a UCSC student arrested after a campus demonstration where she was arrested for assaulting police and leading the demonstration.

Pro bono: our client avoided expulsion and a jail sentence: she suffered two quarters of school suspension and one misdemeanor resisting arrest charge.

I am still WAMM's lawyer Pro bono. I represent WAMM patients locally and assist in the now five year old federal law suit against the first John Ashcroft, then Alberto Gonzales and nowAttorney General and Drug Enforcement Agency. The lion share of the credit for that litigation continues to belong to Professor Gerald Uelmen,; Graham Boyd, Allen Hopper and the American Civil Liberty Union's Drug Reform Policy Project; Daniel Abrahamson of Drug Policy Alliance; and outstanding attorneys from Bingham, McCutcheon's Pro Bono Litigation Dept., of San Francisco.

2006:

Voted best Santa Cruz lawyer in Metro newspaper reader's poll.

Client arrested with 3,000 + marijuana plants: illegal search motion granted, case dismissed.

Represented Grateful Dead lyricist and Electronic Frontier Founder: John Perry Barlow in a minor dustup.

Ben Rice with John Perry Barlow and co-counsel Greg Coben. You need to "Know Your Line"

Represented both City of Santa Cruz authorized medical marijuana dispensaries.

Gave a WAMM fundraising presentation regarding medical marijuana for the County Law Library with the ACLU's litigation director Allen Hopper.

(Allen, law librarian Dolores Wiemers and Ben after presentation with clever disguises in case......)

2005:

Client released from state mental hospital after three years- his previous attorney took tens of thousands of dollars from him and dumped him with a Not Guilty by reason of Insanity plea. ("Don't worry you'll be out in 6 months").

Jury trial, "Not Guilty" verdict in possession for sale of methamphetamines and cocaine.

Continuing education speaker at County Counsel's Association of California's annual conference- regarding medical marijuana.

Qualified in Santa Cruz Superior Court as an expert witness re. medical marijuana.

2004:

Clients included: Kuumbwa Jazz Center and Poet & Patriot Irish Pub (noise complaints- not guilty x3).

Monterey County: client's case dismissed on eve of trial with medical marijuana defense.

2003:

Part of the WAMM legal team suing John Ashcroft and the DEA on behalf of Santa Cruz County and WAMM. See Medical Marijuana

February 2002:

A school teacher was falsely accused of molesting a 16 year old student: Redwood City case dismissed the morning that jury selection was to begin.

2001 - 2004:

Successfully secured the return of approximately 12 lbs. Of medical marijuana.

2001:

First Santa Cruz trial acquittal applying medical marijuana defense- full return of medicine to client.

Summer of 2001:

One month of trial when the District attorney charged a 34 year old Watsonville man with child molest charges that would have led to 27 years in prison. He was innocent and the jury found him so.

March 2001:

Acquittal in Santa Cruz County's first medical marijuana case: client had 14 plants under cultivation after securing a doctor's recommendation to use marijuana for his arthritis. (See the Medical Marijuana section)

February of 2001:

A beer truck driven by my client at 85 mph in Monterey County was stopped by CHP. Client refused to take a chemical test but admitted drinking: Salinas jury hung and DA settled the case favorably for client.

Spring of 1999:

Acquittal in Santa Cruz domestic violence case.

Winter 1999:

Acquittal in vehicular manslaughter case.

1996:

Voted best attorney in Good Times newspaper reader's poll.

These cases are a sampling of the cases I have handled. Obviously, I can't win a trial in every case. But "winning" means different things in different contexts. As a public defender I tried Santa Cruz County's first (and still only) DUI murder case to go to trial. We "won" in that my client was convicted of manslaughter - not the murder charge the DA had tried him for. (The client had 9 prior DUI convictions).

The majority of all cases settle. But the important thing is - I will go to trial for my clients. Not every attorney will.

I was born and raised in the San Francisco Bay Area with stops in:
Washington State, Hawaii, and Berkeley. I've been a resident of Santa Cruz since 1983. I am a graduate of Evergreen State College in Washington State and Golden Gate University School of Law in San Francisco. After working two years for the Center for Judicial Education and Research in Berkeley, I spent three years as a Public Defender in Santa Clara County, then three years as a Public Defender in Santa Cruz County. I have been in private practice as a sole practitioner since 1987.

Honors include:

Twice voted President of the Santa Cruz County Criminal Defense Bar.

Voted 2010" Roland K. Hall Award" winner by the Santa Cruz County Bar Association.

Voted 2008 "Pro Bono Attorney of the Year" by Santa Cruz County Bar Association.

Voted Best Attorney in Santa Cruz in the Good Times 1996 Readers Poll (The last year the Good Times had the category).

Gold winner for five years in the Metro (now Santa Cruz Weekly) Reader's Poll starting in 2006 (The first year the Metro had the category).

One of my proudest accomplishments:
Being coach for the Santa Cruz High School Mock Trial team from 1991 through 1995. We won the Santa Cruz County Mock Trial Competition all four of those years and the team did well at the state competition each year.

Personal:
I'm married to a wonderful woman who is my best friend. We have fantastic kids and friends and live in one of the greatest communities in America. I'm a very lucky man.