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August-October 2020

On August 29, after two COVID tests, four hours of driving, three hours of my boyfriend telling me to drive better, and two hours of me telling my boyfriend to can you please stop the hell telling me to drive better (even though he was right, like always, because that’s what love is), I arrived at Hard Way Farm in Mendocino, California. Classic metal paddock gate swinging open to a barking Great Pyrenees dog; a parked school bus, several wrecked and rotting buildings, a “new” house, and a guy with curly hair and a big smile; a blond woman in a plaid shirt and baseball cap, waving.

Barking Great Pyrenees dog = Dakota, who I would later catch tiptoeing around a corner with an entire stick of butter in her mouth.

Parked school bus = home of two youngsters, S. Graham (24) and R. Bonner (22), who’ve spent the past few years gutting the vehicle and outfitting it with self-architected, hand-crafted furniture. Plus solar panels. Plus Internet. Plus soulful pup Atlas. Whilst driving & living inside.

Wrecked and rotting buildings = remnants of a dairy farm, original use of this land circa 1870-1966.

“New” house = built in 1967, on account of said 19^th-century buildings being a hazard to reside in.

Guy with curly hair, big smile = R. Curbelo, one owner.

Blond woman in plaid shirt, baseball cap = S. Israel, other owner.

My boyfriend dumped all my stuff into the house at the speed of love and zipped away in his car on a boys’ trip to Utah, also at the speed of love. And I stayed until October.

Hard Way Farm—more of a DIY homestead, with secondhand materials scrapped from Craigslist, hens and bees mail-ordered off the Internet—is just a twenty-minute stroll inland from the bluffs, which fly directly over a straight-shot Pacific coastline. Neighbors are sporadic but enough; once a month, everyone gathers, now on Zoom, for a play reading. The nearest store is a 15-minute drive, parked amidst sprawling grasses in a tiny asphalt lot on the side of the road.

Both Curbelo and Israel spent their working lives as public defenders in southern California. In 2018, they spotted the property on Zillow by chance and, after driving eleven hours to meet the place, fell instantly in love. Israel moved to Mendocino in August while Curbelo stayed down south, continuing at the San Bernardino County Public Defender’s Office. In November, he retired after twenty years of service, and made his way north to join Israel. Then un-retired to be Assistant Public Defender in Mendocino for six months. Then retired again. Israel has since shifted gears to private attorneyhood.

Curbelo, born in 1962, is an easygoing type. He used to be in a band called 415 Infraction and, in his retirement, makes music with a neighbor. Occasionally he will blast Little Feat or The Grateful Dead or The Rolling Stones so loudly that the abandoned house thirty feet away trembles on its foundations and the ghost of John Steinbeck chokes on his wine. Curbelo’s parents moved their family from Cuba to America in November 1968, and Curbelo will tell you that he went through a period of rejecting Cuban music before returning to it, loving it, and now playing it along with his other musical obsessions, in addition to cooking up delicious Cuban food with veggies from the homestead’s delicious hoop-house garden. In fact, Curbelo will tell you a lot of things. Curbelo is one of those infinite conversationalists who will talk you into big, flowing circles that ripple into each other until, ages later, you realize they are not circles after all, and were never intended to be in the first place. You cannot remember where each circle began. You will never remember, ever. And in the meantime, Curbelo will still be talking. (I say this with great love, R.)

Israel, a self-proclaimed “midwestern gal” born in 1967, is the unofficial boss of Hard Way Farm. These days, her private-attorney caseload covers criminal defense and agricultural law. Often, she’s locked in her office in a bathrobe and a pair of bright red noise-protection earmuffs manufactured for lawnmowing or chainsawing, instead put to the use of blocking out Little Feat or The Grateful Dead or The Rolling Stones on the other side of the door. This means she is either working on a serious case or scouring Craigslist for a good deal on a new batch of pullets. Israel drives a monstrous stick-shift pickup truck. She’ll never buy anything new if she can YouTube “how to take apart xyz,” which is how you’ll end up spending most Saturdays at Hard Way Farm squatting in a heap of gears. Grease. Screwdrivers. Wrenches. YouTube videos. Empty beer bottles. Your own dignity. Israel has one of my favorite laughs. It starts in a low chuckle and builds to a melodic jingle, and keeps building, like she enjoys the comment, mulls it over, decides to enjoy it more, and then does enjoy it more, and enjoys the fact that she’s enjoying herself.

At Hard Way Farm (“because we always end up doing things the hard way first”), I spent the mornings getting in my eight hours of corporate hamster-wheeling, then worked on the homestead in the afternoons for room and board. Sometimes, it was just me; other times, Graham and Bonner from the bus, who are just swell, or Curbelo, or Israel, would be out there too. Tasks were varied. Examples: building fences, reclaiming lumber, clearing brush so the homestead wouldn’t catch on fire along with the rest of California, harvesting homegrown marijuana (legally, though if my parents read this they will check me into a rehab center), dragging conduits from one side of the barn to the other in a valiant attempt at wrangling a 120-year-old mess, watering veggies or hydrangeas or blackberries or chickens or myself. Once I sat on a bramble. Which has nothing to do with anything. But now you know.

So that’s life on Curbelo’s and Israel’s Hard Way Farm. Their motto is “We’ll figure it out.” Which, as I quickly found out, they do. Mostly on YouTube. Watch three videos about building an outdoor gas-heated shower, and WHA-BLAM you can build your own entire goddamn farm via the recommended videos on your YouTube homepage.

After work work and farm work, sometimes there was wine or a margarita, and sometimes there was Netflix; most times, there was talk. And so I learned about their lives. As public defenders; as people. It began when I whispered, with great embarrassment, after dinner my first night, “So . . . what actually is a public defender?”

On account of my entire education re: the American criminal justice system being limited to memorizing color-coded flashcards labeled with “defendant” and “prosecutor” for an eighth-grade civics quiz.

I wonder how it went for the rest of you. I certainly never gave the system a deep thought until I lived with Curbelo and Israel. As the writer Rachel DeWoskin says: you never really have to think about the criminal justice system until it wrongs you. Then you realize a system is a structure. Just gears. The gears don’t mind what gets put in, nor what comes out. From arrest, to jail, to sentencing, to prison, if you have something to say for yourself, good luck. Gears don’t listen.

We’ve all experienced that infuriating sensation of not being listened to. Now, imagine: you’re not being listened to, and the next, say, fifteen years of your life are on the line. The public defender is the gear who’s supposed to listen. More on that in the interviews.

Curbelo has handled around 30 murder cases (23 went to trial, 6 settled, 1 was dismissed), including two special-circumstances homicides. And Israel’s caseload includes a capital trial that lasted several months. On top of that, rape. Violent assault. Domestic abuse. I listened wide-eyed. I figured dealing with such brutal crimes on a daily basis might cause a person to become disillusioned with humanity. Curbelo’s and Israel’s dinner-table conversations made robbing a bank sound like buying a taco. I felt suddenly that there was far more evil in the world than I had ever anticipated.

Yet both Curbelo and Israel assert it’s the exact opposite. “What the job taught me,” says Israel, “is that there’s actually less true evil in the world than people think there is. Way more good, and way less evil.”

That blew me away.

In her 2010 essay, “Ruminations of a Public Defender,” Israel writes, “Because of our work, we have an opportunity to see our clients—the ‘Untouchables’ of America’s caste system, a little differently than everyone else. We listen to them as they speak softly and become tender when they talk about their children. We know that they are afraid, very afraid, of what might become of them.”

INTERVIEWER

Tell me about the major players in the courtroom.

ISRAEL

Okay, so there’s the District Attorney (DA), sometimes just called the prosecutor. The DA represents the state or county government. It’s their job to prove the charges against a defendant. Then there’s the Judge, who’s the referee. Ideally the Judge is neutral.

INTERVIEWER

Ideally?

ISRAEL

Every person comes into any job with inherent biases. That’s unavoidable. The same goes for Judges; I don’t think they are truly unbiased. For a long time, they were pretty much all former DAs, so they had the DA bias, and it usually came through. Fortunately, that’s changing.

INTERVIEWER

A judge with a DA bias, as opposed to . . . ?

ISRAEL

A Public Defender (PD) bias. If someone is accused of a crime and facing potential prison time, under Gideon vs Wainwright, they’re entitled to a lawyer. The Constitution says so. In most states, the government pays for a lawyer to represent an indigent defendant—that lawyer is the PD.

INTERVIEWER

For our readers: Israel wrote in her 2010 article: We represent those who have no voice and no power.  From the moment they were arrested (and probably before), they were treated with thinly veiled contempt at best, and open hatred at worst. […] We are what you get when you cannot afford a “real lawyer.”

I found that a very sound introduction to a PD’s work.

Before we get into your work, though, let’s rewind the clock to what got you there. Tell me about your youth.

ISRAEL

So . . . my parents actually kicked me out of the house when I was 18. I was young and wild and had a crazy boyfriend. He worked at a pizza place. He was jealous, loud, obnoxious; in retrospect, he was totally abusive. He would roll up to our house blasting music from his car.

After I got kicked out, I lived with my older sister and her kids for a while. Then I moved out into this shitty little studio in this shitty part of town. This adorable old lady owned it. And seven adorable old ladies lived there. And me.

At that point, I went to school full-time and worked part-time at the bank. And I just—I was so broke and so hungry. I remember one time I had no food in the house, and at the bank they had a promotion going. You know, with a popcorn machine and everything. I got a five-pound bag of popcorn and that’s what I ate for the next two weeks. After that period living on my own, I ended up 98 pounds. I was 5’8” or something.

INTERVIEWER

Were you in touch with your parents at all?

ISRAEL

Oh, yeah. It’s not like they hated me or anything. They were old and tired, and Dad was dying of this horrible neurological disease, so Mom had a lot on her mind. It was awful. He couldn’t move, so he had a bell, and it would be, DING-DING, I’m hot, DING-DING, I’m cold, DING-DING, take me to the bathroom. Anyway, they didn’t know what was going on in my life, and I certainly wouldn’t pester them.

INTERVIEWER

You said once that your family is very stoic.

ISRAEL

We weren’t very communicative. I don’t remember Mom playing with me. Ever. There was a fair amount of yelling, all of it deserved. But she did take the time to show me things, like housekeeping. Or how to build furniture. Our only mother-daughter time was when we watched The Bob Braun Show and Days Of Our Lives. We would watch those TV shows every day.

When I was nine, I would say, “Mom, I’m hungry,” and she’d reply, “Can you read?” And she’d say, “Then you can cook,” and hand me a box of macaroni.

INTERVIEWER

Did you ever wish she had been more, I don’t know, tender?

ISRAEL

No. It just seemed normal. Parenting was different in the 60s and 70s.

Mom had been having babies since she was 20 years old. I’m the seventh—my oldest sister is 25 years older than me. Mom was raised Lutheran, and her and Dad were high-school sweethearts. He was a couple years older than her. He said, “If you marry me, I’ll become Lutheran.” And he lied. She converted to Catholicism and popped out seven babies. And kept the house clean and minded the babies.

I think she has deep-seated regret. She was so, so smart, and the midcentury housewife thing really stifled her. She was handy. She very bright, intelligent. She was an inventor.

INTERVIEWER

Did she still love your dad, even after that lie? Through the regret?

ISRAEL

Absolutely. They were still one of the greatest love stories ever. They both loved parties and dancing. He was gorgeous and she was gorgeous. She did want to kill him half the time, which was completely justified. He was a truck driver, so he worked a lot, and on the weekends, he got to come home and be the awesome dad. You know. She had to be the bad guy. And she resented it.

INTERVIEWER

Let’s keep moving forward in time.

ISRAEL

So then I wanted to be a firefighter. I got past the written test, but the physical component was designed to penalize women: the jackets and helmets were all size-XL, and the obstacle courses were designed for tall men. They actually got sued by a woman ten years later, and lost. This was back in the seventies. That’s when I wrote a letter to a nanny agency in Boston, and got the job. I loved it there—I could eat as much as I wanted. I gained thirty pounds in a year.

After that, I toughed it out in a few jobs. Once, as a hotel housekeeper, I found a turd in a bed. An actual human turd.

INTERVIEWER

Bet law school was an upgrade.

ISRAEL

Yeah, law school was really neat. Capital University Law was a second-tier law school. It wasn’t anything fancy. There were a lot of working moms; I wasn’t the only person to pop out a baby. There was a woman there who had a baby every year of law school.

INTERVIEWER

You had Andy your third year, right?

ISRAEL

Yes. I got pregnant with Andy in February of my second year, when I was 29. I had morning sickness and that sucked. I had him in the fall, my third year, two weeks before my midterms.

Until Andy was six months old, my ex-husband and I were both in school. He was finishing his undergrad; I had a semester of law school left, plus the bar exam—we’d gotten married very young.

INTERVIEWER

What were those six months like?

ISRAEL

I just remember being really, really, really tired. And of course I had procrastinated, so my upperclass writing requirement was due too. It was ’97 and my ex’s aunt and uncle gave me their cast-off computer. They set it up in the basement. I remember working on the computer, Andy in a carrier, rocking him with my foot while I typed—it was the only way he’d stay quiet. Luckily, my ex really stepped up. I was always stressed about spending more time with Andy, but I never worried. For all his faults, my ex was a great dad.

I can’t fathom, looking back, how we did it. I guess that’s how it happens. We just did it.

INTERVIEWER

What was it like to enter the real world after graduating law school?

ISRAEL

Oh, it was tough. I started on my own. I didn’t know my ass from my elbow. I’d never sat through a case; I had no real-life experience from school. My first case, the DA said I should file a suppression motion. I had no idea what she meant, so I went and found it in the law dictionary and read up on it. Then I wrote one. It took me days and days. It ended up something like 40 pages. When I submitted it, the clerk told me a suppression motion in Ohio is just a one-paragraph form that says, “I hereby declare the arrest was unlawful.”

I put hundreds of hours of work into that case, which went to trial. In the end, I made $750 total.

INTERVIEWER

So you dipped out of Ohio. For California.

ISRAEL

I started as a PD in 2000, when I was 33. I lost my first eight jury trials—that was my first two years on the job. I didn’t know what I was doing, and no one told me what to do. People wanted to push their own agendas. I had to learn enough to push back.

Part of the reason those first trials went so badly is, they kept assigning me MDOs or felonies. Those are so much harder to win than misdemeanors, where the jury knows it’s low stakes, so they’re much more likely to acquit.

It was tough. Really tough. Andy was little. I was working a lot. Marriage was not going great. My husband didn’t get the public-defender lifestyle at all.

INTERVIEWER

The public-defender lifestyle?

ISRAEL

During trial, life becomes a tunnel. You don’t experience anything but the trial. And complicated trials, like murder, can go for two or three weeks, easy.

When I was in trial, I’d get up at 3am, jittering like crazy, and work at the case. By the time 7pm came around I’d just fall back into bed. I’d get off work and be a zombie for an hour, eat a little, pass out.

INTERVIEWER

What did those hours consist of? How does a trial go for you?

ISRAEL

First, it’s logistics. You have to get it scheduled. You don’t want to bunch up your trials because they’re exhausting, but sometimes you have to, especially as a PD. Then, I just think and think and think and think about the case. When you think so much, a story emerges. A theme. You want to tell the story—evoke the feeling of it. You work around the story and figure out how to get the jury there too.

Once, I bought a $2 prism from a thrift store, and shone a light through it to demonstrate to the jury the value of perspective.

Another time, and this is one of Curbelo’s cases, this guy, Flaco, tried to kill this other guy, Trouble, at a Superbowl Party with no TV. Trouble had beat up Flaco a few days ago. The primary witness was a hooker named Coldpiece. She was on the stand. Curbelo asked, “What does it feel like to be on crack?” She said, “It makes me feel sexy!” Curbelo went to the jury and said, “Let’s say someone’s selling you cake. They have one great testimonial. But the person who gave that testimonial was on crack when they ate the cake. Are you still going to believe that the cake is as great as they say?” As a PD, you’re not allowed to directly ask the jury to judge a witness’s moral character. You have to find a way to do it implicitly.

It can also be down to the details. In one of my murder cases, my client and I noticed that in one photo, his footprint was under the tire tracks of the suspected vehicle, which means he was there before the vehicle was. And that went against the timeline presented by the prosecution.

INTERVIEWER

Public defender Zach McDermott writes in his memoir, “That’s the shit that really terrified me about being a public defender: quarter-century stakes. I didn’t want to be the goalie in front of that net.”

ISRAEL

Exactly. The good thing is I’ve stopped throwing up. It’s called a trial diet. During my death-penalty trial, I lost two dress sizes.

INTERVIEWER

What are your thoughts on the death penalty?

ISRAEL

I vehemently oppose the death penalty. It’s barbaric and monstrous. And it’s not at all a deterrent. First of all, it’s unfair. Persons of color are disproportionately affected. Statistically speaking, if a Black person kills a White victim, they’re much more likely to get the death penalty.

INTERVIEWER

I think most people would ask: what about the victim’s family? What about closure?

ISRAEL

The death penalty doesn’t give the victim’s family closure—that’s bullshit. I’ve done a lot of work, talking with families of murder victims. If you can convince the prosecution to settle for something less than the death penalty, like life without parole (LWOP), it’s better for everyone involved. With LWOP, the person’s just shipped off to a prison. The courts are done with them. No more appeals. But the people who get the death penalty have excellent lawyers fighting for them at the state appellate and federal level, so that case will come back up every few years. The wound is reopened every few years.

INTERVIEWER

In your death-penalty trial, your client was eventually convicted of committing the murder. You mentioned once that it never matters to you whether or not your client actually committed the crime. But how can you defend someone if they’ve . . . if they’re guilty?

ISRAEL

A person is more than the worst thing they’ve ever done.

I knew what this man was accused of. I was never trying to get him released from jail. I was just trying to save his life. I thought he was worth it. I knew he was. He had trauma in his past. He was struggling with untreated mental health issues. After working with him for three years, I considered him a friend.

INTERVIEWER

You’re working on a domestic violence (DV) case right now where the reporting party won’t testify. The woman called the cops on her boyfriend, but now she’s changed her story.

ISRAEL

Yes, she called the cops on my client, but is now insisting that she lied when she reported him. Sometimes in domestic violence cases, the reporting party actually doesn’t want, and will argue ferociously against, a restraining order. Another recent client allegedly assaulted her boyfriend at a Taco Bell. The two of them have had multiple restraining orders against each other in the past. Some of which they’ve violated.

At the same time, another case I can think of—it wasn’t mine—there was a woman who kept filing claims, saying her ex-husband was dangerous. That there had to be supervision for his visitations with his child. The Judge concluded that the woman was lying, maybe because she was overly dramatic. The Judge granted the ex-husband unsupervised visitation. A few months later, the guy took the kid away and killed him.

INTERVIEWER

These past few weeks, you’ve been filing Pitchess Motions. Can you speak a bit about those?

ISRAEL

In California, the police unions are very powerful. They’re very protective of their cops. It’s difficult to get personnel files. If there’s a dirty cop, it affects my clients, so I need to know the history.

To get a personnel file, you need to file a Pitchess Motion—you need to convince the judge there’s a reason to go poking around in the cop’s file. The cop usually has a city attorney; smaller cities contract with private firms. That lawyer fights hard to keep the cop’s files private. If the judge grants the motion, he goes into the chambers with the prosecution’s lawyer—and the court reporter—and looks at the file. I don’t even get to be in that room. Usually, all I get is a list of names and addresses of witnesses. I have to hunt them down so they can tell me bad stuff the cop has done in the past.

The system protects bad cops. It’s changed a little, but not enough.

INTERVIEWER

Who does the justice system help then, and how?

ISRAEL

It helps the status quo. I’m learning more about that these days.

INTERVIEWER

You talk constantly about your clients’ childhoods, backgrounds, mental illnesses. I think I know how you’ll answer this one, but I’ll ask anyway: nature or nurture?

ISRAEL

Just from death penalty work, it’s totally nurture. Unless there’s some serious biological issue.

I think people are born innocent. Kids are innocent. Adults, innocence is complicated. And it can kind of be a legal term. “Not guilty” is different from “innocent;” “not guilty” just means the DA didn’t prove the case.

INTERVIEWER

Do you believe in objective truth?

ISRAEL

I think so. As a lawyer, there’s so much gray area. I’m a big fan of the gray area. Or “it depends.” But some things are true. And some are not. I hate the phrase “my truth.” There is The Truth.

INTERVIEWER

To close this interview, can you tell me about one more case?

ISRAEL

My second client was arrested for rape. He was a paranoid schizophrenic. Like, I’d be sitting across from him in the visiting room, talking to him, trying to get details about the case, and he’d be staring over my shoulder at the television. Once, he told me it was speaking to him. The person on TV was talking directly to him.

He told me he had his own language. You could say a whole sentence using just a few syllables. I asked him what it was called; like English, you know, or Spanish.

He said it was called Hope.

INTERVIEWER

Your parents brought your family here when you were a boy. Tell me more about those days.

CURBELO

The Cuban government had nationalized everything, taken all our stuff. Our family got on the list to emigrate, and the price was that my dad had to go work the sugarcane fields for months at a time. So he’d be gone, and there was no money. Not that money mattered—there were rations. You’d go to the butcher and have to ask for bones and scraps to make soup to feed your family. And a guy from the military could waltz right in and get a big fat steak.

I can’t imagine the courage it takes to uproot yourself like my parents did. It was 1968, so they were already in their forties. Didn’t speak a lick of English. And they just left everything—all for me and my sisters.

INTERVIEWER

I’m starting to sense what you might mean when you say your mom was incredibly resourceful.

CURBELO

She was incredibly sweet, too. I always just felt very loved by her. Looking back as an adult now, I realize she had what might have been paranoia—I don’t know if it was full-on schizophrenia. When we came to the States, we lived in Florida. I was eleven then. On the weekends, after both my sisters had left the house, my mom would take me down to Miami and we’d do the Cuban thing, get breakfast somewhere; bread and butter, dip it in café con leche. I remember this one morning so vividly. My mom told me the man in the next booth was an FBI agent, and he was following her. Serious as a heart attack. Later, she told me she knew it wasn’t real, but she couldn’t help but feel the anxiety of it.

One of the last times my mom visited me before she died, I was living in an apartment in San Diego. My mom stayed in my room; it was upstairs, and she’d have a hard time getting there by then. After work, her and I would go sit by the ocean.

It’s hard for me to get through this without . . . breaking down. She would love the life I’m living now. Hard Way Farm. This place.

INTERVIEWER

What was your dad like?

CURBELO

Baseball. We bonded over baseball. That was a big part of my childhood, playing catch with him. He sacrificed his ankles teaching me to bury curveballs in the dirt, at an age that was too young to be throwing curveballs anyway. He saved up the green stamps to buy me a bat—a 35-ounce bat! It’d be too heavy for me even now. And I was nine years old. I loved that bat even though it made me an awful hitter. God, I treasured that thing. I remember at tryouts, they had 27-ounce bats, which felt like toothpicks to me. I hit the crap out of the ball at those tryouts. My dad was wondering what happened.

My dad taught me a great deal. In second grade, I had a best friend named Willie Reese. I was supposed to get a haircut, so my dad brought us both to the barbershop. We went in, and I sat in the chair, waiting for the barber who always cut my hair. The barber came over, looked at Willie, who was Black, and pointed to the door. I didn’t understand what was going on, but my dad sure did. He yanked me out of the chair and said to the barber, “You just lost my business forever.” Then he took Willie and me to get ice cream.

Sometimes he was frustrated because he was a smart guy but didn’t go to school, or college, or anything. He was on his own since fourteen. For his first job, he was an ice man, before electric refrigerators existed. He would bring the giant block of ice that kept stuff cold. From the start, he did very hard work.

And he was always singing, much like his son. Similar musical abilities. Just different songs.

INTERVIEWER

Did you think about law school, as a kid?

CURBELO

No way. I was actually a broadcasting major when I first started college in 1981. Back then, there were only four networks, no Fox—you had to be really good. My professor scared me out of pursuing the career, so I shifted into criminal justice. I’d always been intrigued by law, watching law-related TV shows. As a kid, I loved Perry Mason. I knew math wasn’t my gig; it’d have to be something verbal. And at Florida, where I did my undergrad, the criminal justice track was just unofficial pre-law.

I got my J.D. from the University of San Diego School of Law. I really liked the people there. It wasn’t competitive or pretentious. It was weird; it felt like the underachiever law school. A lot of people had applied to Berkeley, UCLA, Stanford . . . everyone was laid-back, and it was a very nurturing environment. There was a lot of bonding. In terms of academics, it was like the saying goes. The first year, they scare you to death; the second year, they work you to death; the third year, they bore you to death.

I’m still very close with many of the friends I made in law school.

INTERVIEWER

Now, let’s get into your work. Define Public Defender for me.

CURBELO

Imagine you see someone in handcuffs. Now, I ask you to make a decision based on what you see. Guilty? Not guilty? Don’t know?

INTERVIEWER

I guess it’d be “Don’t know.”

CURBELO

See, your answer should have been “Not guilty.” That’s Presumption of Innocence: the right to be innocent until proven guilty beyond a reasonable doubt. As a criminal defense lawyer, my job is to accurately demonstrate how high the burden of proof is. “Beyond a reasonable doubt” is the highest burden in law, because someone’s liberty is at stake.

The answer you gave isn’t uncommon. When most jurors come into a courtroom, they think their job is to see how the evidence points towards guilt. They think they’re protecting the People from someone who did bad things. But the jury’s job is actually the exact opposite. It’s so important for jurors to come in with a blank slate, which is, really, impossible.

For example, if the defendant is in custody, we try really hard to hide that from the jury. In fact, if the jury sees the defendant in handcuffs, it’s a mistrial—you have to restart the trial. Even then, it’s hard for jurors to have a blank slate. They don’t see the defendant in handcuffs, but he wears the same clothes all week. He’s always at the counsel table after breaks, and they never see him in the hallway outside the courtroom. We end up having to tell them the defendant is in custody, so they don’t blame us for trying to hide it from them.

In reality, that just means the defendant couldn’t make bail. He could’ve been sitting in jail for a year, waiting for his turn in the courtroom. He’s not convicted of anything.

Although in some cases, it can help the defendant to if we share details with the jury. If the crime is not that serious, and they’ll think he’s in jail for something stupid.

INTERVIEWER

Both you and Israel have stated, very stridently, that it doesn’t matter to you whether or not your client actually committed the crime. Can you elaborate?

CURBELO

The only thing that matters to me is the evidence that exists against my client. And the best way for me to defend him, using the facts.

Take this murder case I settled. A son-in-law killed his drunk, belligerent, kind-of-an-asshole father-in-law during a fight. The father-in-law was a bad dude and no one liked him. That’s an example where the defense isn’t “My guy didn’t do it”—it’s “My guy did it because he was justified.” My goal wasn’t to make it not a crime. It was to make it a lesser one.

Some of my clients did commit awful crimes. But here’s the deal: there’s always something. I had a client who stabbed his wife in the neck five times while she slept; he hid her body in their room for a week. It was a small apartment and summertime. He bought fans. A week later, he confessed to the crime. His IQ, he was borderline intellectually disabled. That does not make it okay. What he did. But it does make it slightly less bad. Again, our defense wasn’t “He didn’t do it.” It was “He did it, but he should be put in an institution, not a prison, because he is mentally ill.”

To summarize, it never matters whether your client actually committed the crime, because your role as defense attorney is to zealously represent your client. With some cases, it’s harder. Your moral humanity might creep in to say, “Wow, this person did something awful, and I’m defending him.” But you just have to remember that it’s your Constitutional obligation to legally support your client. That lifts the burden a bit. I just have to do it. Sometimes people did things and it turns out they didn’t. Or it turned out to be a different situation. Sometimes key facts aren’t evident until you flush them out in a trial.

INTERVIEWER

Creeping moral humanity sounds like a pretty big burden. Why pick this job when you could’ve been, say, a Tesla-owning patent lawyer?

CURBELO

Liberty. You’re talking about putting someone into a box.

My philosophical higher self thinks that someday we’ll look back on putting people in cages as a barbaric thing we did way in the past.

INTERVIEWER

So who does the criminal justice system help?

CURBELO

Sometimes, it needlessly interferes in lives that don’t need intervention. Distinguishing which is which can be difficult. The decriminalization and legalization of many drug crimes has made drug court less of an integral part of the system and more for those who are really seeking help. I see that as a plus. Treating the willing is always more effective than treating the compelled.

The biggest failing of criminal justice is, it doesn’t deal with the systemic issues that actually cause crime. It just deals the punishment. It’s a penal code, not a rehabilitation code.

INTERVIEWER

What do you mean by “systemic issues”?

CURBELO

Why do people commit crime?

Look at a place like San Bernardino. It’s a poor city. A lot of crime, not a lot of opportunity. There are few resources to help intervene with vulnerable kids.

Let’s say there was a problem in school: maybe a kid has a learning disability that no one recognizes, and he gets in trouble for acting out, gets labeled as the bad kid. A lot of times, “bad kids” are just frustrated because they can’t learn, and no one cares to spend the time. That just starts a kid down a bad road that’s difficult to escape. And once he gets in trouble at school . . . let’s say he gets in a fight (which you can be prosecuted for now, by the way—when I was growing up, that was entertainment!). A White teacher looks at Johnny, who’s Black, and due to bias, whether conscious or unconscious, calls the cops. Whereas, if she looks at Jimmy, who’s White, who looks like her, she might just give him a detention. Or, here. Maybe when the cops are deciding which kid should go to Juvie, they’ll take the one whose parents they couldn’t get ahold of.

Once the kid’s brought into the criminal justice system, anything they do in the future, even if it’s a very minor crime, becomes a probation violation. Playing hooky. Smoking pot. See, you can’t go to jail for smoking pot unless you’re on probation. So this kid goes to jail, while the other kids don’t. Maybe he didn’t need this level of intervention in the first place. Now, whenever he gets in trouble again, the system is harder on him, and there are escalating consequences. That’s what I mean by “systemic.”

Where I worked, you had Redlands, a fairly wealthy neighborhood: big houses, good schools. And you had San Bernardino: poor, lot of minorities, urban blight, welfare, people moving from L.A. for cheaper housing. A kid from Redlands does the exact same thing as a kid from San Bernardino. One kid’s going home. One kid isn’t.

One of my clients was a DACA kid. He was an outstanding kid. Straight-A student, not a blip on his record. He and his girlfriend were young, fourteen and sixteen. The girlfriend, she bought a bunch of condoms, called him, and told him to come over because her mom was out. My client went over and, well, they had sex. The girlfriend put the condom in the garbage and her mom found it. My client got arrested. Because his girlfriend was fourteen or under, he was technically guilty of a PC 288, unlawful sex with a child, a very serious crime which results in people having to be registered as sex offenders—even though she was guilty too, because he was also underage. And she was the driving influence. But he was the boy, so he was prosecuted.

That was a case that turned out okay, thank God. We had a decent prosecutor who cared. That makes all the difference in the world. If we had someone who went by the book, this boy’s life would’ve been ruined. Even a misdemeanor would’ve gotten him deported, regardless of how long he’d lived in the States. Such a minor thing could have fucked up his whole life.

That’s an inherent issue in the system: the fact that minor things can make such a difference for the rest of someone’s life. Having the right prosecutor. Having the right PD. Having the right skin color. Living in the right neighborhood.

Another case I had, these kids were just hanging out, drinking, when a much older stranger joined them. They had no idea who he was. They were just hanging out. Cops came by to check on them because they were drinking in the cul-de-sac in front of their house at 2am. The stranger went to his car, got an AR15, and wounded one of the cops before being killed by the other cop. All the kids did was duck. To avoid the bullets. The police charged my client and his two friends with attempted murder of a cop with gang allegations, even though there was no evidence my client was in a gang, or did anything other than lay on the ground and try not to get shot. Because they were Hispanic kids from the wrong side of town. If those were kids from Redlands, there’s absolutely no way they’d have been charged.

INTERVIEWER

I know some people who might say that they should just avoid getting arrested in the first place. As in: you shouldn’t have been hanging out with so-and-so to begin with. Or you shouldn’t have been at such-and-such place. What do you say to that?

CURBELO

Direct answer: you can’t criminalize lessons. Either what they did is a crime or it isn’t. They had no idea the bad dude had a gun and was going to shoot at a cop. Sure, it may not be a good idea for them to be drinking with a 40-year-old when they are in their 20s. But they should not be charged with attempted murder and face life in prison because they did something not advisable. The case was totally political. The DA wanted to be the tough-on-crime guy, and was willing to prosecute these kids because their parents are poor and have no clout. The kids took a deal for 15 years in prison, half the time. They were afraid a jury would look at the disabled cop, who’d been shot in the head, and convict them, feeling sorry for the cop.

Another example off the top of my head. San Bernardino. This guy’s in the passenger seat of a car. He’s on leave from the military. The driver of the car gets lit up by the police. The driver has a warrant or something, so he takes off and flees, leads the cops on a chase. They pull him over. And—this is all on video—the cop comes up to the passenger, the guy on military leave. Passenger’s Hispanic. The cops get him out and he’s on his knees, on the ground. He tells the cops he’s not armed. He’s saying, “Please don’t shoot me.” And—this is on video—the cop just shoots him. For no apparent reason. This passenger didn’t commit any crime. I mean, what was he supposed to do when the driver started fleeing? Jump out of the car?

So this cop was charged with attempted voluntary manslaughter—attempted, because the passenger didn’t die. Thank God. But here’s the deal. I’ve done something like 30 murder cases in my career. You never see “attempted voluntary manslaughter” as a charge. It means as a result of a provocation, you had an honest but unreasonable belief in the right to use deadly force. Usually, “voluntary manslaughter” is something the jury comes to as a compromise when they don’t there there is enough for murder, or attempted murder in this case. The cop got charged with a very light crime considering what he did. The guy was on his knees, begging. It was just awful. To make matters worse, the jury didn’t convict the cop. He got acquitted.

There are two takeaways here. First, jurors don’t want to believe that cops are out there committing crimes. Second, there’s something called qualified immunity: if you can argue that a cop was acting in the scope of employment, he has a protection that makes him immune to criminal prosecution. There were a few cops in San Bernardino who had a reputation for doing stuff like that. It’s a culture.

INTERVIEWER

A culture?

CURBELO

We see the results of it in the physical injuries to our clients. We don’t see what actually happens because we’re not out on the street. There was a guy—he was a gang cop—gregarious, a nice guy. I was always friendly with him. He’d rough people up before arresting them. Broken arms, broken thighs.

There was this one custody officer, this big, strong lady, built like a softball player, who was abusive to the defendants. They’re already coming into the clearinghouse courtroom shackled, and the handcuffs are shackled to a waist chain, so they can’t move their hands. Leg chains, so they can’t run without falling. And she would still . . . if someone wasn’t listening to her, she’d grab them by the scruff of their shirt and pull them over the jury stand, where they sat for the settlement. She’d yank them over. And they were defenseless. One of my clients, he was dressed in a mustard suit, which meant he had mental health issues. He was hearing voices and shit, and I was trying to have a conversation with him, and he was just having a hard time, and there was too much going on for him. She ordered him out of the room. He didn’t get it. She came over and grabbed him, and I had to physically get into her way.

I remember, when I was a young lawyer, at the end of every year, there was this popular magazine that did a discipline report. And pretty much all the lawyers I knew, for the first years of their careers, looked at that with a morbid sense of curiosity. Never have I heard “they shouldn’t have gotten screwed”—we were always happy they were exposed for doing shit wrong. Most professions want to ferret out the bad people. The culture in a police department is to not talk about when they see police friends do things wrong.

To clarify, I’m making a sweeping generalization here. One of my neighbors and good friends is a retired police chief. We’ve had many discussions about social justice in the wake of George Floyd. He believes that bad cops need to be taken out of the departments. That police need to be more educated in order to not have the problems they have. Most states, all you need is a driver’s license and a high-school diploma. Cursory psychological tests. Maybe a background check. Police Academy isn’t easy, but it’s not the military. And then you give them guns. A few weeks into the Academy, you put them in the streets. When you put all that together, you’re doling out a whole heck of a lot of power. And then asking cops to handle complex societal issues: domestic violence, drugs, violent crime.

I am not anti-police. As a public defender, I had, and have, wonderful relationships with great cops. But the bad ones? More needs to be done to get them off the streets. They need to stop being protected.

INTERVIEWER

What does working to defend a client look like for you?

CURBELO

Generally, you’re building up as you go along in a case. Then, once you know you’re going to trial, you focus only on that one case. There’s last-minute stuff that pops up.

It’s different for different cases. For murder cases, you’re always assuming the case is going to trial. Out of my murder cases, the ones that settled were usually because the DA was more afraid of losing, than thinking about the repercussions for the victim’s family. So with murder, there’s more reports. You have to organize your information. Sometimes you cross-reference police reports and witness reports. You do a triage evaluation. You talk to the shrink. Figure out how to present the evidence. Talk to your client about his past. In gang cases, you might hire a gang expert that can contradict the prosecution’s gang expert about whether your client was in a gang. Generally, it involves evaluating the prosecution’s case and figuring out how to combat their best points.

INTERVIEWER

Right. You did tell that story about the prosecution bringing in the medical expert.

CURBELO

Ha! Yes, the case where the defendant shot the reporting party six times. That’s twelve holes! But here’s the thing: they just went in and out; missed all the vital organs. The reporting party survived.

During trial, the prosecution made the mistake of calling up an ER doctor to testify. An ER veteran. Man, this guy was jaded as hell. He goes up to the stand, sits back, and says, so calm, so suave, in this thick Russian accent: “Getting shot is like real estate.” Then he pauses. Looks around for dramatic effect. “Location, location, location.”

The defense won. Even though it was six bullets! You can bet that DA never had an ER doctor testify again.

INTERVIEWER

Other than the prosecution solving all your problems for you by bringing in an ER vet as a witness, what are some tactics you might use in the courtroom?

CURBELO

The most important thing is to have a plan, and focus on executing that plan. In one case, I had a 15-year-old suspect getting questioned by a cop with no lawyer or parent present. In front of the jury, I purposely asked the cop the same kind of questions the cop was asking my client, to get the DA to object—to show how important it is to have a lawyer when you’re being questioned. The jury found him not guilty of murder. They were upset with the cop for tricking my client into confessing.

Another technique, called looping, is when a witness gives you a word or phrase that’s good for your case, and you use that word or phrase as many times as you can when questioning the witness. Repetition is very effective with juries. Like annoying commercials.

INTERVIEWER

What are you afraid of?

CURBELO

Failure. If there’s one thing about my life I’d want to change, it’s the way I handled my fear of failure. I’ve always had this defense mechanism: if I think I might fail at something, I won’t do it. When I was in tenth grade, I scored high on some IQ test, so they put me in the gifted program, which was awful. They separated you from everyone else. I basically just torpedoed it so I could get out of there. When I told my teacher, she gave me a metaphor about hiding my light under a bushel.

One of my biggest regrets is, I wish I had stuck with baseball instead of bailing out. My rationalization was focusing on school, but I think I was really just afraid of failure.

INTERVIEWER

What do you believe in?

CURBELO

I think we all serve some purpose. We’re all interconnected in ways that we can never fully understand. Most of our human DNA profiles are identical. A few variations in certain alleles is what distinguishes us from one another.

INTERVIEWER

Why are you here?

CURBELO

I hope that it’s to somehow contribute something significant to the world. I think something more is coming. I hope. I hope at least for the people whose lives I’ve been involved in. Nothing beyond that.

INTERVIEWER

Why are we here?

CURBELO

Aw, shit. I don’t know. I think for each other.

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