Cervantes Testimony

“Please bring in the next witness, Bailiff” said the Judge. “Mr. Underbred, you may return to the witness room.”

“The next witness is Deputy Eduardo Cervantes” announced the Bailiff.

Deputy Cervantes took the stand, and I recognized him as the deputy who arrived on a motorcycle. He was also the one who spoke to me in the squad car going from the substation to the arraignment, and from arraignment to the county jail. He looked few years older than Underbred, and also beefier. He had a very short crew cut.

“Please state your name for the court” began ADA Anesthesia.

“I am Deputy Eduardo Cervantes.”

“Thank you. And Deputy Cervantes, did you have an opportunity to interact with a man named Justin Marlin on July 22nd, 2007? Do you recognize him in this court room, and can you describe an article of clothing he is wearing?”

“Yes, Attorney Anesthesia, I did. Mr. Marlin is seated next to his Attorney, and is wearing a black suit.”

“On the day in question, approximately when did you arrive at Mr. Marlin’s residence?”

“Well, we all got there around 5:00 o’clock in the afternoon. I was in there first because I was on a motorcycle, so I am the fastest. I think Underbred got there next. He went into the kitchen, and I attended to the children.”

“Did you interact at all with Mr. Marlin?”

“Not at first. Deputy Underbred arrested him and put him in the back seat of the patrol car. After he was in the car for some time, we noticed that Mr. Marlin had slipped the cuffs, and so we had to reset the cuffs. I was involved in that process.”

“What do you mean by slipped the cuffs? Did he pull his hands outside of the handcuffs?”

“No, that’s impossible, but he brought his… he stepped his… somehow he made a circle with his hands. and stepped his feet through, so that his hands were now in front of him, his hands still handcuffed, but in front of him, not behind his back.”

“And when you saw that he was in this condition, what do you do? I have your report here, and if you need to refresh your memory, I can give it to you, and you can read it.”

“Yes, I would like to refresh my memory” at this point ADA Anesthesia handed Deputy Cervantes the police report, and he read through it. He handed it back to her and said “We pulled Mr. Marlin out of the car to put his handcuffs back behind him, where they belonged by our procedure. It was at this point that Mr. Marlin became combative.”

“Can you explain what you mean by combative?” asked Anesthesia.

“Well, he didn’t want to let us recuff him, and he said he wasn’t going anywhere. He said he wasn’t under arrest.”

“Was he in fact under arrest at this time?” asked Anesthesia.

“As soon as he laid hands on me, yes, he was under arrest.”

“And what happened after that?”

“Objection” interrupted Phycks. “Too broad.”

“I will reword the question, Your Honor. Did you recuff Mr. Marlin to your specifications, Deputy Cervantes?”

“Yes ma’am, we did.

“After you had him safely back in handcuffs, what did you do?”

“We returned to the crime scene. The mother had returned to the house. We spoke with her, and the children were taken to the hospital for evaluation.”

“And then what happened to Mr. Marlin?”

“We took him to the substation for holding.”

“Thank you, Deputy Cervantes. No further questions, your honor. Mr. Phycks, your witness.”

“Thank you, Attorney. Deputy Cervantes, how long have you been a Deputy?”

“7 years, sir.”

“7 years. Thank you; so you’re not new to this. Did you speak with anyone about the case this morning?”

“Maybe a little, as we were waiting.”

“Ah, just a little. I see. Just so you could get your stories straight?”

“Objection, your honor. He’s leading the witness.”

“Sustained.”

“OK, strike that question. Deputy Cervantes, at any time during the arrest, did you have an opportunity to question my client, Mr. Marlin?”

“Do you mean when he was at the house? Or do you mean when he was in the squad car, later, when we took him to the substation? Or when we took him to county jail?”

“At any of those times, did you speak with Mr. Marlin?”

“No, I didn’t say anything.”

“Do you mean you didn’t say the word ‘anything’ or do you mean you didn’t say any words at all?”

“I never said a single word to Mr. Marlin” lied Deputy Cervantes.

“You never spoke with Mr. Marlin? That seems odd. Did you give a chance for Mr. Marlin to explain why he had slipped the cuffs in front of him?”

“No, by our procedure the cuffs must be behind him. We saw they were in front of him, so we pulled him out of the car, and we made sure that the cuffs were behind his back again.”

“And yet he was not under arrest. Is there a reason a person who is not under arrest can’t place the cuffs in a more comfortable position?”

“Not by our procedure.”

“Okay. So, you have Mr. Marlin in the backseat of your squad car, handcuffed, but his hands are now in front of him instead of behind him. But he’s not arrested?”

“He wasn’t yet arrested. He was detained.”

“Can you define the word ‘arrested’?”

“Objection, Your Honor. The witness is not here to act as a dictionary. He is here to tell what he encountered that day.”

“All right your honor, I’ll accept that. I, uh, let me let me rephrase that question. Deputy Cervantes, at what point exactly was Mr. Marlin arrested, in your mind?”

“When he put his hands on me, he was under arrest.”

“Yes, ok, I see your point. Mr. Marlin is accused of resisting arrest and assaulting an officer, either you yourself or one of your compatriots, but when was that?”

“Well, we took him out of the car…”

“Let me interrupt you right there: how did you take him out of the car?”

“We opened the door, we reached in and grabbed him.”

“Who’s ‘we’?” asked Phycks.

“Me and Baldy, the third Deputy on scene.”

“All right, so you take him out of the car, and then what?”

“Well, we unlocked, we undid the handcuffs, and as soon as we did, he stretched out his arms so that we could not handcuff him again.”

“Okay. So is a man who is not under arrest allowed to stretch out his arms?”

“No; not when we’re telling him to put his arms behind his back.”

“Oh, so you were talking to him?”

“Well, of course, at that point. I had to tell him to put his hands behind his back.”

“Okay, but didn’t you just say you never talked to him? Not a single word?”

“Other than instructions, no. No.”

“Instructions are words. Orders are words.”

“Sure. Sure, yes. Ok, yes; I gave him instructions.”

“Deputy Cervantes, my client is charged with a very serious offense, so I would suggest that you take this a little more seriously, and when I ask you a question, you give me a serious answer. Don’t dance around things. You spoke with my client. Yes or no?”

“Yes, but only when I had to.”

“Okay. In my opinion, you never had to tell a man who wasn’t under arrest to put his hands behind his back and allow you to put the cuffs back on if he wasn’t under arrest, but let’s move on to something else.”

In the meantime, I had written a note on my notepad. I had a gun safe with several guns. Nothing big, just a couple of 22 and 9 millimeter hand guns, a couple of small 22 rifles, and a folding stock 9 mm rifle. I wrote down ‘he asked me the combination to my gun safe.’ He said they were confiscating my guns, and if I gave him the combination, then they wouldn’t have to drill out the lock.

“When Mr. Marlin was taken down to the substation, how was he treated there?”

“We put him in a small cell, and shackled his hands to two opposite walls so he couldn’t hit anyone else, and…”

“Had he hit someone?” Phycks broke in.

“He hit me, and the other arresting Deputy.”

“When did he hit you, and what injuries did you sustain?”

“I just told you, when we…”

“Deputy Cervantes, if I ask you the same question 10 times, I expect ten answers, don’t tell me ‘I already told you that.’ That’s very rude. Where exactly were you, and where, exactly, was Mr. Marlin when you allege that Mr. Marlin hit you?”

“When I pulled him out of the car, he…”

“Oh, so you pulled him out of the car. I was wondering why it would take more than one Deputy to pull a handcuffed man out of the squad car. I was picturing a Three Stooges moment with two Deputies and a ‘merely detained’ suspect all trying to fit through the car door at the same time.”

“Who’s being rude now?” asked Cervantes. And Phycks threw a fit.

“Your Honor! Attorney Anesthesia! The witness is not making things easy for himself. He acts as though he’s not the one being interrogated about the unnecessary use of force on a man who was fully cooperating and was only trying to get a little more comfortable while locked in the back of the squad car on the hottest day of the year with no air conditioning and the windows fully rolled up. How long was my client expected to roast in back of a squad car in that condition? Perhaps this ‘witness’ should himself be arrested, and instead he’s smarting off on the witness stand. This is absurd. He may end up looking for a job as a mall cop.”

Wow. I couldn’t believe what I had just heard. Anesthesia and Judgeson seemed floored as well, by the look of astonishment on their faces. Cervantes paled.

After several seconds, Judge Judgeson said “The witness will answer the questions.”

“Thank you, your honor.” said Phycks, again composed.

“How long was Mr. Marlin in the squad car before any Deputy noticed he had slipped the cuffs?”

“about 20 minutes”

“and was the engine running”

“no”

“was the air conditioning running”

“no”

“were the windows up or down”

“the windows were rolled up”

“all the way up?”

“yes, but the car was in the shade, I think, not in the direct sun, as I recall”

“In the shade, well, thank you for that. So at some point you notice Mr. Marlin slipped the cuffs, you open the squad car door and, with no instructions from yourself to Mr. Marlin, you pull him out of the car. Is that your sworn testimony?”

“Yes.”

“Thank you. You pull him out of the car, and you take off his handcuffs, and…”

“We only got one cuff off and he pulled his hands loose and started swinging. I got hit with a cuff and backed away.”

“OK. Well, you interrupted me, but at least we’re getting somewhere. How did you regain control of Mr. Marlin, now that he has one cuff on him and is allegedly swinging his arms?”

“We got on opposite sides of him, and eventually grabbed the arm without cuffs, then the other arm. We got him down on the ground.”

“Face up or face down?”

“Face down. Then we re-cuffed him.

“Did he offer any further resistance while face down on the ground?”

“Yes, he resisted all the way.”

‘Ask about the TEASER’ I wrote on my notepad.

“And what means did you use to re-cuff him? Just your hands, or were any other devices used?”

“We both used our batons to pry his arms together. Once re-cuffed, we had him hogtied for a while, then we got him up again with just a hobble applied to his legs, and we walked him back to the squad car.”

“OK, thank you. I appreciate your level of detail, and your honesty.”

I looked away and rolled my eyes. I lokked up at the ceiling. Honesty? I noticed Judge Judgeson was observing my reactions.

“And, by the way,” continued Phycks, “I do have a copy of the Subject Management Report right here in front of me. That’s what it’s called, ‘Subject Management Report.’ I thought it was the ‘Use of Force’ report. It does say you used batons in a pry method and a strike method. Did you write this report? I don’t see any name on it. It’s not signed.”

“I did not write that report. It may have been Underbred or Baldy.”

“Let’s talk about the substation again. Did Mr Marlin ask for any medical attention?” asked Phycks.

“No, he did not.”

‘Yes I did.’ I wrote. ‘I asked for an EMT.’ At first, I had said no, then I said yes. ‘An EMT came and looked at me while I was locked up with my arms spread out in the holding cell.’

Phycks looked down at my note, then asked Cervantes again “Did the EMTs come and attend to my client, Mr. Marlin, while he was locked up at the substation?”

“No” said Cervantes.

“OK. Well, that can be checked. They keep records, as does the substation. We’re almost done here. Tell me about taking him back to town court for…”

“Objection,” said Anesthesia “too vague. Taking whom back to court? ‘Tell me all about it?’ Really? Is that the level of questioning we accept here?”

“Deputy Cervantes, at what time did you take Mr. Marlin to town court for his first arraignment before Judge Judgeson?” asked Phycks.

“About 11:30 that night.”

“So 2330 military time?”

“Yes. 2330”

“And was Mr. Marlin resisting then in any way?”

“No.”

“and did you say anything to Mr. Marlin at this time?”

“Nothing.”

“Excuse me, Deputy,” broke in the Judge. “This is very important. Did you say the word ‘nothing’ or did you not say any words at all?”

“I said no words, your honor. I did not engage the subject, Mr. Marlin, in conversation.”

“Thank you”

I was rolling my eyes, then staring at the lying Deputy. I know cops are allowed to lie to suspects. They can say anything to you to try and get a confession. But they can’t lie to the Judge like this. Or they can, but if they’re caught in a blatant lie, it doesn’t go well for the rest of their testimony. They can’t lie under oath.

Phycks continued. “Was my client ever allowed to use the bathroom during all this? How long had he been in detention by now?

“Yes, at the court building while Deputy X was talking to the Judge, Marlin asked to use the bathroom, and I let him. He said he hadn’t used the bathroom since some time before his arrest. He asked to use the bathroom, and I nodded yes.”

“You nodded yes. Of course you did, because you just swore under oath that you didn’t speak to my client. OK. So then Judge Judgeson arraigns Mr. Marlin, and what do you do next?”

“Next we drive him to county jail, turn him over to the jailers, and my long day is finally over.”

“You poor guy. You had a long day.” said Phycks.

“Objection! Your honor, Mr. Phycks wants my witness to be an angel on the stand, yet he’s perfectly happy making Three Stooges jokes and mocking my witness for yes, putting in a long day. Does Mr. Phycks think it’s funny that the Sheriff’s Deputies had to come out and save Mr. Marlin’s children from their own father on a Sunday afternoon when he should have been happily playing with them? Does Mr. Phycks think the Deputies wanted to treat Mr. Marlin like this? Mr. Marlin brought the entirety of the Deputies’ response upon himself.”

“All I want is the truth, and a fair and appropriate response from the ADA and the witnesses. Mr. Marlin has and will present a defense to all charges, and is willing to accept a fair plea deal, should the DA choose to present one.”

“We had a deal. You didn’t hold up your end of it. The deal was to drop the felony assault with a deadly weapon in exchange for a guilty plea for resisting arrest.”

Phycks looked at me, then to the Judge.

“Was there a deal, your honor?”

“We can review the transcript from the day the Felony was reduced to Misdemeanor. Do you believe there was an error, Ms. Anesthesia?”

“Yes, there must have been an error. The DA would never reduce a charge absent a plea deal.”

“OK, we can look into it, but let’s finish today’s hearing first.”

“Any further questions Mr. Phycks?”

“I’m almost done. Deputy Cervantes, when you took Mr. Marlin to county jail, did you speak to him at all?”

“Not at all.”

The Judge broke in again. “Deputy Cervantes, again, this is important. That’s a 15 minute trip. Was there any conversation between you and Mr. Marlin?”

“He made a few statements, which we noted in our report. Arrestees often start babbling in the back seat once they realize they’re going to be locked up for the night, that they’re not going home. But we said nothing to elicit any response from Marlin.”

“Not ‘we’ please,” said the Judge. “This is addressed to you. The other Deputy will testify next. Did you speak to Mr. Marlin during transport to county jail?”

“No, Your honor” lied Deputy Cervantes. “I did not.”

“Next witness, I’m done.” said Phycks.