THE BLOG
08/21/2013 11:50 am ET Updated Oct 21, 2013

A Lawyer's Holiday: Part 2

Read Part I here.

When the Northern California Innocence Project brought us Ronald's case it was easy to figure out he was innocent. He had nothing to do with the people or the incident. It seemed obvious that Steven's father, Senior, was the most likely suspect. So we hired Keith McArthur to see if we could track down Steven, or perhaps even Senior, and help Ronald out.

I have come to love Keith McArthur. I have heard black people describe Keith as white and white people say he is black. Keith moves seamlessly among worlds. He plays bass guitar and makes the best cappuccino I have ever had. He is a criminal investigator and a musician; a creative man and a tactical thinker; a student of human nature and a determined guy. Keith tracked down Steven and got him to talk.

Steven was a different witness than Renardo. He wasn't making an eyewitness identification based on his memory while looking at mug shots. He actually knew who shot Renardo. The shooter talked to Steven before pulling the trigger, and asked for confirmation that Renardo was the guy. The problem was that Steven had a reason to protect his mother and his father and also, Steven has a substantial cognitive disability. Whether he is retarded or on the spectrum of autism or developmentally disabled or whatever, it is hard for Steven to relate information that seems truthful. This is because much of what Steven reports is just fantasy. That is just how he rolls.

But Steven is capable of telling the truth, and he decided to do so with us. It was his dad, Senior, who shot Renardo. Nikki had told Senior about Renardo's hitting Steven, and Senior had come over to Renardo's place with Steven and another friend to confront him. When Renardo talked back to Senior, he got shot. Simple. Keith always had a succinct way of describing Renardo: "shootable." When I later met Renardo I learned how true that was. On that occasion Keith and I showed Renardo a photo of Senior, which he looked at for a long time. He had never been shown a photo of Senior before, and he told us that this guy looks a lot like the guy who shot him and made him doubt his identification of Ronald. He also said that he had always understood the guy he identified in court was Steven's father, and was surprised to learn that he wasn't, and that this fellow in the photo that looked just like the shooter was.

So based on Steven's recantation of his trial testimony, Renardo's doubts about his trial testimony and some other good evidence we dug up, we got a hearing for Ronald Ross and presented Steven's testimony and Renardo's testimony. Both witnesses apologized to Ronald right there in court. And right after Renardo's apology the judge in the western shirt had shared with me that I was "losing."

* * * *

After I boosted him over the fence at Nikki's dumpy dwelling place, Keith let me in through the gate. We banged on her door. The neighbors came out, as they had on several prior occasions, and asked if we were cops. No answer from inside Nikki's. We looked in through the windows and saw only a mess. No Nikki.

This was the Thursday after I had decided I would stop working for the year and Keith and I drove back towards downtown Oakland, agreeing that facing the holidays knowing innocent, gentle Ronald would spend the rest of his life in San Quentin wasn't an option.

"What if we go see Senior?" Keith asked.

"He'll never speak to us"

"We'll never be okay if we don't try."

"Word. Where is he?'

"Napa."

"Not too bad. An hour away. Let's go tomorrow."

Actually Keith was wrong. Senior was in Atascadero at a state prison hospital, four hours south. He had been declared incompetent to stand trial and sent to Atascadero to recuperate. He might be a vegetable. He had twice before refused to discuss Ronald's case or Renardo's shooting with Keith. But we had to go.

That is how I found myself banging at Keith's door on December 21 at 5:55 a.m., the second full day of my holiday break from work. Keith stepped out with two cappuccinos and we headed south.

My car, a fairly new Audi convertible, started shaking just outside Morgan Hill. Engine light flashing. Fuck it. We could just go home. We pulled off and got a tow truck whose driver dropped us at an Enterprise rental place which was just opening. A white Hyundai would take us further south to Atascadero. A great breakfast somewhere off 101, including fresh biscuits and homemade sausages was the first decent omen.

Atascadero is a prison with the word "Hospital" placed on the door. Inmates are "patients." In a visiting room Steven Tyrrell Embrey Senior, dressed in orange, shuffled slowly through the door. He hadn't had a visitor since getting there and wasn't sure who we were or why we were there. We asked him about his recovery and he said he was getting better. We offered a coke and some vending machine food, but he had to settle for a Sprite (no caffeinated beverages at the hospital) and some sour cream and onion potato chips. He ate them slowly and drank his Sprite in teeny sips. It looked as if chewing the chips was making his gums bleed. Senior seemed to be rational, able to communicate and willing at least to eat snacks with us. So I turned to the reason for our visit.

"We represent this guy Ronald Ross who is doing 25-life for a shooting in Campbell Village back in 2006. A man named Renardo Williams got shot. We think Ronald is innocent. Do you know anything about that?"

"He didn't have nothin to do with it." Senior said slowly, with a trace of indignation. "He wasn't even there. I don't even know the dude."

"Do you remember what happened?"

"Sure. Me and my friend Dennis were driving down 10th Street by Campbell Village and we saw Little Steve. He was musty -- stinky, wet, so he got in the car and I took him over to his mom's place. I was gonna whup him, but Nikki said don't whup him, some guy already beat him with a stick. I said, where's the dude at? Then me and Little Steve and Dennis walked over there. Little Steve showed us the house and knocked on the door. When the dude answered, Little Steve said that's the guy. I asked him "Did you hit my son?" The guy said that yes he did, and he'd do it again. I was taking off my shirt to fight the guy when Dennis said "I got this," pulled out a .22 pistol and shot the guy. Then we took off."

It was stunning. Here was the story. Told so casually, but so consistent (except for who pulled the trigger) with everything we knew, including what Steven had testified to in court. Ronald was innocent and we could prove it. I tried not to act excited. I could see Keith was also trying to act nonchalant. We had somehow been able to bring a small digital tape recorder into the facility and we asked Senior if he would repeat what he had just said on tape. He did. We bought him a Butterfinger, thanked him and left, with the digital recording in Keith's pocket.

* * * *

December 26, 2012-January, 2013

The day after Christmas we filed a transcript of the tape, an affidavit about the meeting with Senior, and a supporting brief, with the Court. I sent an email to the DA (the real, elected one, not the 14-year-old) pleading for her to recognize Ronald's innocence and join us in seeking his release.

At a hearing on January 3, the prosecutor (the 14-year-old) confided that she hadn't listened to the tape, read the transcript, or even read our brief. She told us she expected the People to take the position that Senior was incompetent to give testimony, and to persist in opposing Ronald's petition for habeas corpus.

The Judge had read the brief and the transcript. He set another hearing for February 1, at which Senior would be brought to court to testify, likely to take the fifth and refuse to testify. In the meantime we asked to meet with the elected DA to plead for Ronald's release. She met with us, but showed up appearing to know nothing about the case.

* * * *

On January 11 Aaron Swartz committed suicide by hanging himself with a belt in his Brooklyn apartment. News media went on a frenzy about his case, speculating about the relationship between his federal prosecution and his suicide. I attended Aaron's funeral outside Chicago and delivered a eulogy. Demonstrators from the Westboro Baptist Church showed up to decry Aaron as a hacker criminal, but Anonymous hacked their web site and showed up in force on the streets outside the synagogue to shut them up. The Westboro people went home. I was impressed by how effective these shadowy tech activists operated as vigilantes. Later, I felt the cold travel up from the ground, through my shoes and into my legs as Aaron's ashen parents and sobbing girlfriend shoveled frozen earth onto his casket.

* * * *

February 2013

Senior took the fifth as expected. The Judge admitted the tape recording of his statement in evidence, over the prosecutor's objection. The judge recessed the case for two weeks to hear closing argument and make a decision. He seemed inclined to rule against us.

* * * *

Two days before the final hearing, I got a call from the elected Alameda County District Attorney. "We no longer have faith in this conviction and will not oppose Mr. Ross's petition for habeas corpus. We will join you on Friday in seeking Mr. Ross's release." I could barely speak.

We went to Court Friday jubilant. TV cameras were in the hallway. The judge was furious. Speaking to us in the privacy of his chambers, outside the hearing of a packed courtroom, he lectured. "I am not releasing this man based on an oral application and a backroom deal. The People need to file an amended answer to the habeas petition and we will take it from there. I will put this over a week." I couldn't believe Ronald would have to spend another week in prison. Leaving the judge's chambers and returning to Ronald, sitting in the expectant courtroom, I wiped sweat from my forehead and flicked it onto the tiled floor.

Ronald seemed cool with it. "I love you, man," he said.

A week later Ronald walked out of Santa Rita wearing new pants and a handsome black shirt our paralegal Rhonda had picked up at Macy's, insisting she pay for it out of her own pocket. Keith was at his side. Ronald appeared on tv that night, dignified and proud. He went home to his mom's and ate oysters.

2013-08-15-FINALRossTeam_2013.jpg

Photo Courtesy of: Keker & Van Nest

* * * *

March 2013

Three weeks later I attended the Northern California Innocence Project annual dinner with Ronald, John Tennison and Antoine Goff. MC Hammer came by to say hello. "Elliot got me off once too," Hammer said with a grin. I had recently helped get him out of a very minor "dwb" (driving while black) scrape. The pictures taken that night of Hammer, Ronald, John, and Antoine are priceless.

* * * *

I saw the judge at a lawyers' event, the type I try hard to avoid. He asked what me and my "entourage" (three other lawyers from my firm worked on Ronald's case, along with two from the Northern California Innocence Project) thought of him when we realized he wore a western shirt, no tie, and jeans under his judicial robe.

I called Ronald to tell him that story, and he just laughed. "That judge never liked you, Elliot. But I love you, man."

* * * *

The next Saturday Ronald came with me to my son's high school baseball game. We sat in the sun-drenched bleachers at Oakland Tech and ate fried chicken sandwiches from Bakesale Betty's. Ronald stood and cheered when my boy got a hit.