Podcast: Play in new window | Download (Duration: 1:54:04 — 156.6MB)
Subscribe: Android |
On the morning of March 29, 2012, while riding my bicycle, I hit and killed a man who was crossing the street.
This is not a story of who was at fault, though at first it seemed that way.
We all share a critical responsibility when we go out into the world: the duty to keep one another safe. I failed in that responsibility and, as a result, we will never get back the life of Sutchi Hui. Words cannot adequately express how sorry I am for his death and for the loss to his family. I carry that sorrow with me every day.
This story is about what happened after the accident—and it’s a story that happens all too often: High-profile cases get tried not in courtrooms, but on TV and the internet. Media fans the flames, the public quickly passes judgment, and elected officials bend the system to secure political wins—at the expense of due process and fair outcomes.
The narrative is based on court transcripts, newspaper and online articles, television broadcasts, and extensive notes and journal entries I made in the months after the accident. To protect the privacy of others, I changed some names. All else is true to my memory of what happened.
I am sharing this not for redemption or personal profit, but because this side of the story rarely gets told. To make sure our justice system treats all defendants fairly, we need to speak up when it doesn’t.
I’m Chris Bucchere.
And this is Bikelash.
PART VII (b): Kangaroo Court, Continued
6 March 2013—342 days since the accident
Ted began his cross-examination of Pollak with a bunch of softball warm-up questions about the number of phone calls and emails and in-person meetings he’d had with the police and prosecutors, a line of questioning designed to show that Pollak had been a little bit too eager to help them with their case, for reasons that remained unclear to us.
“You decided that one thing you could do was to prepare to offer yourself up as a witness?” Ted asked.
“And that evening, you prepared a written statement, correct?”
“And you entitled it My Testimony Regarding Cyclist/Pedestrian Collision on March 29th, 2012?”
“And you emailed it to yourself?”
“Because you wanted to be a witness if the matter went to court?”
“No. I wanted to be a good public servant if the matter went to court.”
Pollak seemed to have regained his confidence after the perjury debacle; his responses seemed to reek of suave deceit.
“And that could mean being a witness, correct?”
“I don’t know.”
“Well, you certainly anticipated that at the time; that’s why you wrote it down and said my testimony, correct?”
“I can’t answer that question. You’re assuming something there.” Pollak suddenly seemed rather adept at dodging adversarial questions.
“It just wasn’t in your mind; is that right?”
“That what wasn’t in my mind? I’m sorry.”
“That you were preparing to be a witness in court proceedings.”
“I was preparing to help the legal process. I was not preparing to be a witness.”
Ted kept pushing. “Did you write in that email, ‘I’m emailing a document account to myself in case this ever needs to be presented in a court of law’? Did you write that?”
“I sure did,” replied Pollak.
“So you were preparing to be a witness in court, weren’t you?”
“I did not state that,” said Pollak.
In light of Pollak’s doggedness, Ted gave up on this topic and moved on to the next line of questioning. “There was pretty significant media coverage of the accident, correct?”
“I don’t know. I don’t read the newspaper very often other than industry-specific stuff,” Pollak said, which I found disappointing.
“So are you telling me you didn’t see media coverage of this incident?”
“I did, but I don’t read the newspapers.”
“Your Honor, I’m going to object,” said Omid, his tone indicating that he’d heard enough already. “Relevance?” he asked as if it were a question.
“Overruled,” said Judge Cheng, perhaps agreeing that understanding Nathan Pollak’s motivations bore at least some relevance to the case. I was grateful that the judge seemed to be paying attention to the basics, at least.
“Sir, you actually did read at least one article about this incident on SFGATE, correct?” Ted continued. He seemed to use the term “sir” as a pejorative whenever he wanted to cut through the lies and get an honest answer out of a liar.
“And are you telling me you didn’t follow the news about Mr. Hui following the incident?”
“I did follow the news because I was curious as to what the state was.”
“So you did notice the media coverage after the accident, correct?”
“And it was a matter of interest to you, correct?”
”The same day that you learned that the pedestrian had died, you sent an email to the DA’s office, correct?”
“And you said you wanted to make sure they got in contact with you?”
“And you said the cyclist is completely at fault?”
“Yes, I said that.”
“And you said he blatantly ran two red lights?”
“And you offered to share your March 29th narrative that you had written in an email to yourself on the day of the accident?”
Ted and Julie designed this line of questioning to tap into Pollak’s motivations, showing that he had come here today—by bicycle even—to make sure he could play the crucial role of hero in bringing down the villain cyclist.
“Mr. Cassman, you have more than five minutes?” asked Judge Cheng.
“Certainly, Your Honor.” Ted had just barely begun warming up; he probably had another five or six dozen questions to ask at this point—more if Pollak continued to dance around the answers.
“I’m going to ask you to come back at 1:30. See you at 1:30,” Judge Cheng said to the star witness as the court adjourned for a lunch recess. Pollak stood up, visibly disturbed, and started complaining to Omid about having to come back after lunch.
We exited the courtroom, ignoring the questions as we walked through a sea of reporters. We walked a few blocks to a taqueria located in a commercial area near the [now-demolished] Expo Center.
On the way back, we stopped at the public defender’s office and squatted in their break room to strategize. It seemed like Ted knew everyone around these parts. More of Ted’s colleagues pulled me aside to tell me that he was the best criminal defense attorney in the Bay Area. After the first few times this happened, it became a running joke between Ted and me.
“Pollak’s a real piece of work,” Ted said, shaking his head.
“Jesus, I know,” I replied. “Hey, I have to ask you this: How many times in your career have you had to remind witnesses that they’re under oath? I thought that shit only happened in the movies and on TV.”
“Well, it definitely doesn’t happen every day; maybe two, three times over the past thirty years.”
We tied up a few loose ends and headed back to the courthouse, back through the sea of reporters, and up to the defendant’s table. The instant that court came back into session, Ted jumped right back in to examining Pollak’s motivations.
“I forgot to ask you a couple more questions, preliminary-type questions. Have you reviewed any documents in preparing for your testimony today? And that would include emails.”
“No, just my account.”
“So, that’s what I’m asking about. So did you, in preparing to testify today, to help refresh your recollection, review your March 29th account of the event?”
“And your April 4th email to the district attorney?”
“And your April 8th, 9th email to the district attorney?”
That’s a lot of emails to read when you’re “only” reviewing your own account.
“And you know what I’m talking about. It looks like you emailed it to yourself on April 8th and then to Inspector Cadigan on April 9th?”
“And you’ve reviewed all those within the last week?”
“Yeah, yeah.” Just my account, he had claimed. This guy just can’t keep himself from lying, even about stupid stuff.
“And when you met with the district attorney a couple of weeks ago, were you shown the video that you’ve looked at today?”
“Was that the first time you had seen it?”
“And the only time you had seen it until today?”
“Now, going back to March 29th, you felt that the cyclist was solely responsible for this accident, correct?”
“And you felt that the pedestrian who was hit was blameless?”
“And you felt that the other pedestrians that had entered into the crosswalk before the collision were also blameless?”
“I’m going to object on the relevance,” interjected Omid, most likely concerned at this point that Ted was painting Pollak as a vigilante. “His feelings are irrelevant.”
“No. It’s his motivation here today,” pleaded Ted.
“Overruled,” said Judge Cheng. Each small victory—like this one—boosted my confidence.
“That means you can answer,” said Ted.
“Can you repeat the question?” asked Pollak.
“You felt the other pedestrians in the crosswalk before the accident were blameless?”
“You felt as you watched that they had entered the crosswalk after the walk sign in their direction had illuminated?”
“Not all the pedestrians but those coming from—the pedestrian that was struck from the east side—excuse me, from the west side.”
“Okay. What about from the west side? Do you think they entered too soon?”
“I didn’t have a clear vision because there’s a parklet right in front of the—I guess it’s called a bulb-out, where pedestrians stand just before entering the crosswalk.”
“But you felt that as far as you could tell, any pedestrian who was relevant to the accident was—had entered at the appropriate time?”
“Let’s back up. You were driving south on Castro Street at Duboce?”
“And you noticed two cyclists?”
“One wore a pale blue biker jersey?” Ted referred to the Mission Cycling kit I was wearing on the day of the accident.
“And that was the individual later involved in the accident?”
“One was wearing black?”
“They appeared to be together?”
“It’s your claim that they were not stopping at any stoplight or stop sign?”
“That’s my recollection, yes.”
“And it’s your claim that they never stopped for a stoplight or stop sign that you saw?”
“No. The gentleman in the black stopped at the red light at Market Street.”
“Okay. But before Market Street I’m talking about.”
“I do not recall either of them following traffic signals.”
“In fact, it’s your testimony to the contrary. They did not do that, right?”
“They did not stop.”
“And you told us this morning that there were two traffic signals and a stop sign between Duboce and Market Street; is that correct?”
“Two traffic signals and one stop sign between Duboce. Not including Duboce, then that’s correct.”
“Right. So 15th—I’m sorry, 14th Street traffic light, 15th Street traffic light, 16th Street stop sign?”
“Do you recall telling the officers in your email—do you recall writing in your email that you mailed to yourself on March 29th that you estimate they ran through five traffic signals and stop signs before approaching Market Street?”
“Yes, I do recall that.”
“You told us that as you were approaching Market Street, you were going downhill?”
“And the bicyclist in the blue shirt was riding alongside of you the entire time?”
“A little bit of a chicken—what do they call it, a chase, but, yes, we were to-and-fro a little bit.”
“You saw the traffic light turn yellow?”
“You slowed and stopped for the light?”
“North of the crosswalk?
“Do you recall whether there’s a limit line north of the crosswalk?”
“I don’t know what a limit line is.”
“Do you recall whether there was another line?”
“Yes, there is another line. I do recall there being —”
“North of the crosswalk?”
“Okay. You don’t know what that’s called?”
“I just know that that’s where the motorists are supposed to stop.”
“You know that north of the crosswalk on March 29th, there is an additional line a little further north of the crosswalk that you stopped at?”
“Anyway, you stopped at the red light?”
“You were slightly ahead of the cyclist when you stopped at the red light?”
“The bicyclist then whizzed right by you?”
“Just want to make sure I got it clear. So the light turns red, right?”
“The bicyclist in the pale blue shirt whizzes by?”
“And that’s why you’re absolutely sure he ran the red light?”
“And you were stopped at the stoplight at Market Street when the accident occurred?”
“So then there was this second bicyclist, correct?” Ted was referring to my riding partner and friend Tobias Hanks.
“And at some point, he was a few yards behind the cyclist in the pale blue shirt, correct?”
“Yes, at least a few yards.”
“And as I understand your testimony, after the bicyclist in the pale blue shirt went through the light, the bicyclist in black, the second bicyclist, slowed down and stopped at the red light?”
“Right alongside you?”
“Yeah, a little bit in front of me but they stopped, slowed down and stopped at the traffic signal.”
“Okay. I guess the point I’m trying to make is you were stopped at the red and the second bicyclist came up and stopped alongside you?”
“Now, you were driving a Honda Element?”
“And would you agree that’s a rather distinctive looking car?”
“Yes, very distinct.”
“You called it a large SUV, I think?”
“It’s a big box SUV.”
“Big boxy SUV, easy to recognize?
“Showing you, Mr. Pollak, what’s been marked as Exhibit B, do you recognize that photograph?” Ted showed Pollak a printed screen capture from the video showing his vehicle stopped in the southern crosswalk in the aftermath of the accident.
Pollak put his hand on the printout and circled his gray and black Honda Element with a red pen.
“And so that’s the vehicle that’s seen at the top of the lower screen in the crosswalk, correct?”
“We’re ready with the video?” Ted asked Julie, who had been fiddling with the projector and laptop. Julie nodded.
“Now, I want to show you the video,” Ted said.
“And prior to this time, we’ve all been focused on the lower screen. Would you agree with that?”
“I would like you to look at the upper screen, and I’d like to start at 8:02:36.”
Time to turn the tables, I thought, brimming with anticipation. Time for the world to see that Pollak fabricated his entire story! I glanced over at Omid. He was fidgeting in his chair, looking puzzled. The upper screen? Why would anyone care about the upper screen?
Ted asked someone to dim the lights, making the projector screen glow, illuminating the drab courtroom with the image below (minus the red annotations) casting silver and blue rays across the wall.
The image above shows me and Mr. Hui lying unconscious on the pavement, with several people already clustered around Mr. Hui, trying to help. Nineteen seconds had already transpired since the accident, and Pollak’s vehicle was nowhere to be seen. It’s hard to say where exactly his Honda Element had been at this point, but a fair guess would be somewhere around States Street, halfway down the Castro Street hill between 16th Street and Market Street. How did I know that? Because Pollak’s car had come rolling leisurely down the hill, eventually moving up to the limit line at around 8:02:47, a full thirty seconds after the accident.
“Okay,” Ted exhaled. The table set, he continued, “So if you would please direct your attention to the top left screen, we’re starting at two minutes and thirty-six seconds. And I’m going to ask that Julie start the video. You see a vehicle approaching? We’re going to go to 8:02:47 and stop. Did you recognize that vehicle?”
I annotated the image below, showing exactly what Pollak saw, but with the benefit of a giant red arrow pointing to his car to help follow its path. His Honda Element enters the upper left screen at around 8:02:37. At 8:02:42, his car disappears from the top camera’s view and reappears in the bottom camera’s view (on the right) as the clock changes from 8:02:42 to 8:02:43. By 8:02:47, Pollak has finally stopped at the limit line.
According to his statements to the police and his sworn testimony, Pollak and I played chicken, driving/riding neck-and-neck down the hill, then he slowed and I immediately overtook him, then he passed me again and then came to a stop at the limit line, where I flew by and his jaw dropped. Whether his story hews to the laws of physics or not, it can’t be denied that Pollak arrived at the limit line at 8:02:47, thirty seconds after the accident, which invalidates his entire account of what happened, including the most important part of his testimony: the red light he claimed I ran at Market Street.
Why didn’t Pollak have any idea of what actually happened at Castro and Market? Because he simply wasn’t there.
I had watched this video hundreds of times, so I knew exactly where to look to find Pollak’s car. Given that this was probably the first time the witness had ever paid attention to the top half of the video, he naturally seemed pretty confused.
Pollak probably didn’t know it yet, but his goose was cooked. Some uncomfortable stirring came from the gallery. I wondered how many of the more savvy reporters had picked up on this crucial point—that Pollak drove up to and stopped behind the limit line on the north end of the intersection a full thirty seconds after the accident, when two bodies were lying motionless in the street and a dozen people were already calling 911. I knew Ellen Huet was watching from the gallery, along with at least a half dozen other reporters, as far as I could tell. It seemed even Judge Cheng was now paying close attention, as he sat back in his chair and crossed his arms, his bespectacled eyes glued to the projector screen.
“Did you recognize that vehicle?” Ted asked, speaking slowly and deliberately.
“I don’t know what I’m looking at, I’m sorry. I can’t really see anything,” Pollak said, sounding equal parts annoyed and antagonistic.
“Oh, okay,” Ted said, patiently. “Let’s go back up.” We didn’t expect that Pollak would see his car the first time, but we were prepared to handle that outcome, trusting that if we played the video enough times, he would eventually admit that his car arrived thirty seconds after the accident.
“Can I step [down] and have a closer look?” At this point, Pollak extricated himself from his pile of gear and walked over to the projector screen. Arms crossed, he leaned back as his eyes darted around.
“Yes,” said Ted. “And I’m directing your attention right up there in the left corner of the upper screen.”
The closer the better, I thought.
“Okay, 8:02:36.” Julie pressed buttons and the video played.
“Yeah, that’s my vehicle.”
“Okay. And I’d like you to keep going, 8:02:47.”
“It looks like my vehicle.”
“Stop. And [the] vehicle there?”
“Looks like my car.”
“Let’s continue running it all the way through to 8:03:36. I’d ask you to watch the lower screen, that vehicle right there. Let’s stop at 8:03:36.”
Ted continued: “Sir, do you see that the vehicle, your vehicle, is the vehicle that’s stopped in what I’ll call the number two lane southbound on Castro Street at the Market Street intersection at 8:02:47 according to the video?”
When people refer to lanes by numbers, they always start on the left—from the driver’s perspective—and count to the right. Castro has two lanes right before crossing Market Street; the number two lane is the right turn lane, closest to the curb.
“Now, Julie, could we please go back to 8:02:10?” Julie queued up the seven critical seconds before the accident, from when the yellow phase began at 8:02:10 to the moment the collision occurred. Then she hit play.
“Very good,” said Ted, as he continued his cross-examination.
“So, sir, I’m going to direct your attention again up to the upper screen, left-hand corner, 8:02:10.”
“For the record, I’ll tell you that’s about seven seconds before the accident.”
“And let’s run the video. We’re watching screen left. Let’s stop at 8:02:17. Looking at the lower screen, sir, do you see that the collision has just occurred?”
“Upper screen, do you see your vehicle?”
“Yeah. I mean I think. Could be there?”
“Okay. Let’s run the tape.”
“I see it. I see a piece of silver hanging out behind those trees.”
“Okay. Let’s keep going.” Julie played the video again.
Pollak’s car obviously wasn’t in the video because it arrived thirty seconds after the accident.
“You see the bicyclist go down the street?” Ted asked, referring to Tobias. “Did you see that?”
“Yeah, I’ve asked you to watch top left.”
“Yeah, it looks like the guy in black.”
“Okay. Do you see the vehicle?”
“I believe it’s sitting there behind the trees, yeah.” The video did depict a vehicle behind the trees, stopped in the number one lane. In fact, there were two vehicles, but neither one was Pollak’s distinctive Honda Element.
“Okay. Let’s continue.”
Julie played the video again. A fierce heat welled up inside my chest, gradually radiating upward and outward. Was this guy going to weasel out of the fact that he wasn’t there, that he didn’t see anything, and that he fabricated his entire testimony?
Julie played the video again. I had lost count of how many times she had played it before, but at this point, it seemed like old news.
“You see a vehicle now?” asked Ted, again.
“Yeah. I think that’s my vehicle.” Pollak had definitively identified his vehicle arriving at 8:02:36, meaning that his Honda Element couldn’t possibly have been sitting on the limit line at 8:02:17.
Omid jumped in. “When we say ‘now,’ I don’t for the record—”
Ted cut him off.
“At 8:02:32, did you see your vehicle?” Ted asked, again.
“I’m going to be totally honest. I’m under oath. It could be my car, it could not.”
“Okay,” said Ted, clearly not amused. We had gotten a “yes” a few minutes ago from Pollak for the car approaching the limit line at 8:02:36; now we were getting a “maybe” for it also being there at 8:02:17, nineteen seconds earlier.
“It looks like my car but—sure, if we’re assuming that that speck of gray in the top left corner is my car, sure,” Pollak stammered, his face turning red.
You’ve been outed, I thought. Now just tell us, for the record, that you definitely don’t see your car at 8:02:17. That’s all we need from you. Then this charade can be put to rest.
The clock on the video on the projector screen showed 8:02:32.
“Well, I‘m pointing to the corner to a vehicle right now. Do you see it?” Ted asked. I could sense that he was trying hard to keep his cool.
“Yes, I see that.”
“And that’s the car we’re talking about, right?”
“Okay. I can’t tell you firmly if that’s my car.”
“You can’t tell?”
“I can’t tell.”
“Could you tell that’s a Honda Element from that distance in the top left corner of the thing? I can’t.”
Ted addressed Judge Cheng, “There was no question pending and I would ask that it be stricken.”
“And I would ask that it stay because it actually articulates what he’s looking at and how it’s very small,” Omid said, with palpable annoyance.
“Motion to strike is denied,” said Cheng, allowing the prosecutor to cast doubt upon the credibility of a video. But unlike Wen-chih Yu, Angelo Cilia, Omid Talai, Nathan Pollak—or any other human being—video is not capable of lying.
“Okay. So let’s run it forward to 8:02:47.” The same portion in the video depicted above played for the witness, for Omid, for the judge, and for the gallery full of reporters and Hui family members, again.
“Now, just a minute ago, you told us that was your vehicle?” Ted phrased that statement like a question, so that Pollak would feel compelled to answer it. Again.
“That does look like my car.”
“Okay. And would you agree that that was the vehicle that at 8:02:36 was visible in the upper left-hand picture?”
“I can’t agree. It’s very hard to discern what’s behind those pixels but possibly.”
“All right. Well, let’s back up one more time, please.”
“I’m going to give you the same answer,” Pollak said defensively. I bristled and wrinkled my nose at him.
Why can’t he just show a little dignity, apologize for lying, and get off the witness stand?
“That’s fine,” Ted said, clearly also feeling prickly. “We’re going to try one more time, to see if you’re able to see what’s obvious to everybody else.”
I expected Omid to sling an objection there, but Ted’s video train had already left the station.
“Ready?” Ted asked. Not waiting for an answer, Julie rolled the same part of the video.
“Stop!” said Ted. “You see the vehicle at 8:02:40?”
“That little thing?”
“Yes, that little thing right there.”
Julie played more of the video depicted above.
“You saw that it appears to move over to the right-hand lane, the vehicle we were just talking about?”
“Okay. I saw that it moved and I see something up here and there, so sure,” said Pollak.
“Okay. Now let’s go to 8:02:43, the lower left and we’ll proceed to 8:02:47.” Julie played the video again.
“Now, we all agree that’s your car?”
I let out an enormous exhale.
“And now, you see that your car arrived at the northern limit line of the intersection at 8:02:47?”
“I can’t agree to that because I don’t know if I’m at the northern limit line,” Pollak said. “I’m there on the other side of the intersection but as my account—as I talked about earlier, I was so eager to get over there, once I was stopped, I can’t remember.”
Pollak’s seemingly infallible memory of what happened on that fateful morning seemed to have finally met its match.
“Okay. So, would you agree that this is the first time as we’ve been watching it together since 8:02:36 that that vehicle stopped?”
Omid tried to object. “Vague!” he snapped. “First time in the video that you can see the vehicle stop I think is more accurate.”
I found it mildly amusing that the prosecutor suddenly expressed a newfound interest in affirming the accuracy of the video evidence—that he himself admitted.
“Do you understand the question?” Judge Cheng asked Pollak.
“Yeah. Yes,” said Pollak. I could tell that the wind had really been let out of his sails.
“It didn’t stop before then, right?”
“No, it didn’t.” Pollak answered again.
“Focus your attention on the lower screen.”
“Okay,” said Pollak.
“Let’s go back to 8:02:16, and thank you,” Ted continued. “And I’m going to run it to 8:02:20. So you saw the accident at 8:02:17?”
“Uh-huh.” He certainly saw it in the video, but he definitely didn’t see it live on the morning of March 29.
“Stop it at 8:02:20,” said Ted, ready to move on. “Now, I want to direct your attention back up to the top left screen and we’ll run it to 8:02:25.”
“You see the bicyclist coming down the street, correct?” Ted referred again to Tobias. I recalled that Pollak had said that after I blew by him, Tobias rolled up alongside Pollak’s iconic Honda Element.
“And you do not see the vehicle, correct?”
I let out a small, careful sigh. With that, we had everything we needed. Pollak positively identified his vehicle arriving at the north end of the intersection thirty seconds after the accident took place. He also identified the inverse of that: namely, that his vehicle had not been there as I went by, nor had it been there almost ten seconds later when Tobias rolled up, stopped, and waited on the north end of the intersection for the light to change back to green so he could cross Market Street to check on my condition.
“Thank you. I have nothing further, Your Honor,” said Ted, looking weary but satisfied.
“No, thank you,” said the ADA.
Omid actually did something smart here. Ted left him unprepared and unable to salvage the critical testimony of his star witness. We hadn’t even shown the GPX waypoints that disproved his testimony about the red light at 14th Street, or the signal timings to show that he had lied about 15th Street, as well. We debunked the most important part of Pollak’s story, and that cast a shadow of doubt over everything Pollak said under oath and otherwise.
Oh, how I wished that Ted could launch into his closing argument right now, telling the judge and the reporters and everyone else present that the pedestrians crossed early and that Pollak told a rehearsed and fabricated testimony. How did we know? Because the video showed that he didn’t arrive until thirty seconds after the accident! He wasn’t even there when the accident happened! I wanted to see that in the news. I wanted to see the headlines read: Cyclist Exonerated as Key Witness Caught Lying on the Stand.
But I was getting way ahead of myself. We hadn’t heard from the police yet. Nor from the prosecution’s accident reconstruction expert, whom we had planned to debunk even more thoroughly than Pollak. Direct and cross-examinations do not allow any time for either side to argue anything overtly. While it’s certainly possible to build a case while examining a witness, those parts of the hearing mostly allow for gathering facts. The real heavy arguing for one side or the other happens during the closing arguments—at this point, surely still hours away.
Judge Cheng looked at Pollak and said, “All right. Thank you. You may step down.”
Nathan Pollak, still visibly red in the face, gathered up his gear, stepped down from the witness stand, and left the courtroom.
Good riddance, I thought. With your lies, you gave the prosecutors exactly what they needed to elevate my charge to a felony; you’re the reason I’ve had to spend all my family’s savings and then some defending myself from the insane things you said I did.
“Next witness,” said Judge Cheng.
At this point, Inspector Lori Cadigan of the SFPD took the stand.
6 March 2013—342 days since the accident
For obvious reasons, I had conflicting emotions about Lori. In our first meeting, she had spoken with such an affable, comforting tone that it made me open up and tell her everything, when obviously all I should have said were four words, the only four words anyone should ever say to the police: “I NEED A LAWYER.”
She had answered my questions about Mr. Hui’s health graciously over the next few days, serving as my only point of contact with the family who was suffering from this terrible tragedy. I even emailed her to tell her how I had read in the news about the pedestrians racing to catch a northbound 24 Divisadero bus. Like me, she seemed authentically sad about Mr. Hui’s passing. She seemed to understand and relate to my shock, horror, remorse, and sympathy for the family. Then she clammed up a bit during our second meeting, rightfully so, as Inspector Dean Taylor told me about the DA’s office stealing evidence and leaking it to the press, which clearly made her uncomfortable at best, livid at worst.
Inspector Cadigan now made her way up to the witness stand, her black bomber jacket left draped over her chair. Dressed more or less like she had just stepped off a Harley, she looked a bit out of place in the courtroom. She sat across from me, looking uncomfortable and nervous. In all likelihood, Inspector Cadigan would just recite what she had written in the police report, but the look on her face warned me that we might be in for much more.
“As part of your investigation, did you have a conversation with Tobias Hanks?” Omid asked, of course knowing full well that she had.
“Who is Mr. Hanks?”
“Mr. Hanks is the other bicycle rider on the incident of the same day of the accident riding with the defendant.”
I sat behind the table, looking at Inspector Cadigan, perplexed by this line of questioning.
What did Tobias have to do with anything? We had reviewed the police reports and Tobias’s statement and found no red flags, so we didn’t pay much attention to either. Toward what kind of stunt were these questions leading?
“Did you ask Mr. Hanks if he and the defendant were, quote, ‘following the rules of the road,’ end quote, stopping at stop signs and signal lights specifically in the area of Divisadero, which then turns into Castro?” asked Omid.
“And what did he say?”
“His comment was we don’t typically stop at all the stop signs or signals, we approach and if it’s clear, we proceed through, not necessarily stopping.”
Whoa, now I see!
Omid was asking about Tobias to prompt Inspector Cadigan’s memory of the statement Tobias made about the accident. But I had seen that statement, too. Tobias had said we always stop at red lights, but sometimes roll stop signs if it’s safe and clear. Right there on the stand, under oath, she was distorting Tobias’s words—conjoining stop signs and signals—to make it sound like we not only roll stop signs, but also run red lights. And she did it without even batting an eye.
Inspector Cadigan is intentionally misinterpreting Tobias’s statement, most likely at the behest of the prosecutors, in order to damn me through my friend’s harmless words, further escalating this affair.
So much for “no big deal.”
Inspector Cadigan answered the rest of Omid’s questions predictably and uneventfully, and Ted began his cross-examination. Not prepared for this turn of events, he had to fire off questions extemporaneously.
“You asked [Tobias]: ‘So along Divisadero, are you following the rules of the road, are you stopping at lights and signals?’ Do you remember that?”
“Yes, I do,” said Lori.
“‘Generally speaking, we’re following the rules of the road.’ Right?” asked Ted.
“And then he said: ’As far as stop signs, those—some cases, depending upon traffic, hum, we may not necessarily stop at every single stop sign.’ Correct?”
“He said: ‘We might slow as we approach an intersection, check to see if it’s safe to proceed and roll through.’ Correct?”
“So he’s talking about the stop signs?”
“Not right there, he did not. He said intersections.”
Jesus, I thought. First Inspector Cadigan acted sympathetic, seeming to be in my corner—as much as humanly possible under the circumstances—but now she was sitting here under oath and distorting Tobias’s words to make it sound like we routinely run red lights, which couldn’t be further from the truth. By ignoring the context that connects Tobias’s two sentences, Lori tried to make it sound like rolling through red lights was simply part of our morning workout.
Once again I felt that burning sensation in my chest. Every time I started feeling confident and thinking I had a handle on all the crazy, something even crazier happened. We weren’t planning to have Tobias testify unless we went to trial—if it came to that—so there was no way to have him refute how they were manipulating his words.
Ted was clearly also irked, and had no intention of letting this slide. We had a copy of the police report. Julie fished around for it now in her giant suitcase of documents. We could literally read it back to Cadigan over and over until she admitted to lying about it. I couldn’t read Ted’s mind, but I had a feeling that I knew his plan.
“Well, let me show you—my office has prepared a transcript,” said Ted.
“I’ll direct your attention to the bottom of page four,” he continued. “So, bottom of page four, line nineteen to twenty: ‘So along Divisadero, are you following the rules of the road, are you stopping at lights and signals?’ Question, right?”
“At line twenty-five, he says: ‘Generally speaking, we’re following the rules of the road.’ Correct?”
“Correct,” answered Lori. Ted was quickly piloting this ship back on course.
Just read it back to her, I thought. There’s only one conclusion she can draw: that Tobias said we sometimes roll stop signs safely, but we always stop at red lights.
It didn’t even matter that the statement was true—we couldn’t prove or disprove that. But we could prove that Lori was intentionally misinterpreting it, probably because that’s what the DA and ADAs asked the SFPD to do.
I guess today they decided to work together, as opposed to pointing fingers at one another.
“Continues on the top of page five,” Ted was still reading Tobias’s statement. “‘Hum, as far as stop signs, those—some cases, depending upon traffic, uh, we may not necessarily stop at every single stop sign.’ Correct?”
“That is correct.”
“Is that consistent with your memory?”
“Yes. For that question, yes.”
“And then you said ‘Okay.’ Right?”
“And he says: ‘We might slow as we approach the intersection, check to see if it’s safe to proceed and roll through.’ Correct?”
“Correct, but that’s not specific to an intersection with a signal light or a stop sign,” replied Lori.
For the love of god, I thought, why is she lying about this? Right in front my own eyes, someone I once trusted and respected was again twisting the facts—and under oath, to boot. In that moment, Inspector Cadigan lost my trust, my respect, and a good deal of her own humanity.
“Okay. He didn’t use the word signal light?” Ted asked, trying to trap Inspector Cadigan in a lie, or at least get her to admit that she intentionally misinterpreted Tobias’s statement.
“No. So I don’t know what he’s referring to when you’re trying to say it’s a stop sign that he’s only talking about. He comes up and not talking about a stop sign and now he’s referring to an intersection, whether we know how it’s controlled or not,” Inspector Cadigan said, continuing to lie and now getting defensive about it.
Ted, surely having dealt with hundreds of lying witnesses throughout his career (and several times today), wisely gave up. Every good attorney knows when a witness has decided not to give the answer he wants. We were already past the point of no return. It was time to pack up and move on; continuing to rephrase the question would only frustrate us and might cause even more damage than Inspector Cadigan’s lies alone. Pressing on might have worked on Pollak, but now we were dealing with a much more experienced witness, a witness whose job depended on how well she was able to lie—and not get caught in the process.
Ted’s face was riddled with contempt as he asked a final question about the transcript. Much like the video, it was really hard to argue with the darn transcript—yet somehow people still did. Ted spoke clearly, slowly, and deliberately: “We can agree, can we, that the transcript, line nineteen on page four through line five on page five, are consistent with your memory of what Mr. Hanks said to you?”
6 March 2013—342 days since the accident
As Inspector Cadigan stepped down, I stared at the table, avoiding eye contact. I couldn’t bear to look at her anymore. She had come full circle so many times throughout the course of this affair that now I felt dizzy to the point of not even knowing which way was up anymore. I replayed the last ninety minutes or so in my head, sending my thoughts into overdrive. Most of these thoughts were about Nathan Pollak.
Who would do something like that—and why? These questions troubled me, but they didn’t really matter. All that mattered was that we absolutely cooked Pollak. Having positively identified his vehicle arriving at the north end of the intersection more than thirty seconds after the accident, nothing he said on the stand or to the police could be taken at face value. I didn’t whizz by him. His jaw didn’t drop. He wasn’t there! It was all bullshit.
But calling bullshit on Pollak represented only a small percentage of our overall de-bullshiting strategy. There was much more to come.
“People call Michael, last name Mahoney,” said Omid.
The court employee swore Michael Joseph Mahoney in as if she had done it ten thousand times before. (In all likelihood, she probably had.) Omid continued, “What do you do for a living?”
“I operate a business called Traffic Collision Consultants in which I am a collision reconstructionist,” said Mahoney. I hadn’t heard the term reconstructionist since high school American History class.
“What is your background, training, and experience as it relates to the investigations of traffic collisions and traffic collision reconstruction?” Omid asked, carrying on the lawyerly tradition of never asking a question to which he didn’t already know the answer.
“From 1977 until 2008, I was employed as a peace officer with the City and County of San Francisco. From 1977 until 1990, I was a patrol officer in the Mission District specifically assigned to investigate preliminary investigations of motor vehicle collisions. In 1990, I was promoted to the rank of sergeant and inspector. From 1991 until 2004, I was assigned to the hit and run detail where I conducted background investigations, follow-up investigations on motor vehicle collisions, drunk-driving incidents, and traffic fatalities. In 2004, I was transferred from the hit and run detail to the homicide detail where I worked as a homicide inspector until my retirement in 2008. During the course of my time as a San Francisco police officer, I attended courses and completed courses through the State of California, Peace Officer Standards and Training in the initial, basic, intermediate, and advanced accident investigation courses. I’ve also successfully completed both the initial and supplemental traffic collision reconstruction courses, and I’ve been certified through the State of California Peace Officer Standards and Training to conduct motor vehicle collision reconstructions.”
“Have you been an instructor anywhere with respect to accident investigation?” asked Omid.
“I’ve been an instructor at the San Francisco Police Academy for both incoming officers and advanced officers in the area of motor vehicle collision accident investigation.”
“Do you go over mathematics and damage analysis components?”
“Those are the components that I specify to when I teach the courses.”
“And what are those; what do those things mean?”
“Essentially that’s the time-distance analysis based on the movements of the vehicles previous to impact, movements of the vehicles at impact, and the movement of the vehicles post-impact to the point of rest.”
“Can you give us an estimate of how many traffic collision reconstructions you have conducted?”
“In the criminal arena, in excess of 100 to 150; in the civil arena, in excess of 2,000.”
“What is ACTAR?”
“ACTAR is an accreditation process. It’s an acronym. It stands for the Accreditation Commission for Traffic Accident Reconstruction. ACTAR was formed specifically through requests by the courts and by the attorneys so as a person has to be specifically qualified to render an opinion while on the stand.”
“And are you a member of ACTAR?”
“Yes, I am.”
“How long have you been a member?”
“I’ve been a member of ACTAR since 1998. I hold ACTAR No. 800.”
“Have you provided expert testimony in depositions, arbitrations, criminal and civil jury trials?”
“Have you done so for The People/plaintiff and also for defense?”
“Can you tell us all of the counties in which you have been qualified as a court-certified expert in the field of accident investigation and traffic collision reconstruction?”
“I’ve qualified and been certified in San Francisco County, San Mateo County, Santa Clara County, Alameda County, Contra Costa County, Solano County, Marin County, Sonoma County, Placer County, Yolo County, and Clark County, Nevada.”
“How about Stanislaus?” Omid didn’t want to forget Stanislaus.
“Stanislaus County, Merced County.”
“What relevant associations are you a member of?”
“I currently hold memberships in NATARI. It’s an acronym, we use a lot of acronyms. It stands for the National Association of Traffic Accident Reconstructionists and Investigators. I’m a member of SOAR, which is a Society of Accident Reconstructionists. They’re based out of Colorado. I’m a member of SATAI, Southwestern Association of Technical Accident Investigators. They’re based out of Arizona. I’m a member of CARS, California Accident Reconstruction Group, and I’m a member of CHIA, which is the California Homicide Investigators Association. And I also hold a private investigator’s license through CALI, California Association of Licensed Investigators.”
“Thank you,” said Omid. “In June of last year, were you retained by myself and the San Francisco District Attorney’s Office?”
“Yes, I was.”
Omid continued to ask Mahoney questions that had obvious answers—and not just obvious to an extremely well-certified and highly regarded Accident Reconstructionist, but obvious to everyone in the courtroom.
“First question is what was the speed of the defendant and his bicycle at the time that he proceeded south on the 300 block of Castro Street just prior to the impact with the victim Sutchi Hui? Do you recall my asking you that question?”
“Yes, I do.”
“And did you come up with an answer to that question?”
“Yes, I did.”
“And what was the answer?”
“It is my opinion that Mr. Bucchere was riding the bicycle on the 300 block of Castro Street when he entered the intersection at a speed of 32.102 miles an hour.”
“And to reach that conclusion, I want to specifically just ask you about the video. Were you able to come up with that little bit over 32 miles an hour speed simply by using the video and the measurements that you had conducted of that area?”
“Explain to us how it is that you came up with that speed?”
“What I did is I took the interior measurements of the intersection from the inside crosswalk on the south side of the intersection to the inside crosswalk on the north side of the intersection, and I came up with 127 feet, six inches. I then took the width of the south side inside crosswalk of one foot and the width of the crosswalk from the inside line to the point of impact for another twelve feet, six inches, and I came up with a total distance of 141 feet, three inches.”
“Then what did you do?”
“Based upon my review of the video surveillance camera that captured it and the time that it provided, I noted that the bicyclist covered that distance in three seconds. So I divided the distance of 141 feet, six inches by the time of three seconds and came up with I believe it was forty-seven feet per second. I then utilized the forty-seven feet per second and I did the conversion by dividing by 1.4666 and I came up with 32.102 miles an hour.” As Mahoney said “did the conversion,” he extended one of his arms and pressed his palm down, as if he were kneading an invisible lump of dough.
I recalled from my earlier analysis of Mahoney’s report that his speed estimate could have been off by 33% in either direction—so I could have been going as slow as 21 mph or as fast as 43 mph.
“Have you done a similar calculation for previous cases in the past?” Omid asked.
“Is this common for you?”
“Can you even estimate approximately how many times you have done—reached such a conclusion in determining speed in the past?”
“The second question I asked you was, I quote, ‘What was the status of the traffic signal for southbound traffic on Castro Street crossing Market at the time the defendant entered the intersection proceeding south on Castro Street?’”
“It’s my opinion, based upon my review of the video footage, that the traffic signal for southbound Castro Street was red at the time that the bike entered the intersection.”
“And how did you reach that conclusion?”
“Based upon the totality of the time it took for the bicycle, from the time it entered the intersection until the time it impacted in with the pedestrian, also the traffic signal sequence report provided to me that identified that there was a three-and-a-half-second all red.”
“And is that from Bryan Woo at SFMTA?”
“Yes, it is.”
“There’s a three-and-a-half-second all red, which indicates that both crossing traffic on Castro Street and traffic on Market Street will be held up to a red signal for three and a half seconds. Then, based upon the movement of the pedestrians walking in the westbound direction, I noted that it took three seconds for them to reach where the bicycle impacted into the pedestrian. That’s six and a half seconds. I then calculated the six and a half seconds back with the speed of the bicycle of 32.102 miles an hour and I came up with a positioning of the bicycle 300 feet north of the impact point at the time the light was red.”
So there it was in plain sight: the fundamental flaw in his “logic.”
The traffic light itself, as displayed in the video, proved that his estimate of my position missed the mark wildly. Why? Because using “the movement of the pedestrians” to determine the disposition of the WALK symbol was completely backwards.
“The third question I asked you, it was, quote, ‘What was the status of the pedestrian walk/wait signal for pedestrians crossing Castro Street and Market Street on the south side of the intersection?’ Do you recall that question?”
“Yes, I do.”
“What was the answer, and then I’ll ask you how you got there.”
“It’s my opinion that the traffic signal, pedestrian walk/wait signal indicated it was a white walking man at the time that the pedestrians stepped off of the curb and began to walk.”
I needed to laugh, but I knew it would have been inappropriate. Wen-chih started to cross nearly fourteen seconds early. The man with the bag and six others all also entered while the signal still read DON’T WALK.
Thank god for the video setting the record straight, or else all these witnesses would have eaten me alive.
“And when you’re referring to pedestrians, are you specifically referring to Mr. Sutchi Hui?”
“How did you reach that conclusion?”
“Based upon the timing sequence of the all red as provided by Mr. Woo, the fact that pedestrians positioned on the east side of the crosswalk are starting to walk westbound. In fact one pedestrian had already reached the midpoint in the westbound lane when the impact occurred.”
Mahoney was, of course, referring to Wen-chih, who was already 75% finished crossing by the time I got there.
“And the final question: ‘What was the proximate cause of the collision between the defendant and Mr. Hui?’ I know there’s kind of a three-part answer, so give us the first and then I’ll ask you how you came up with that.”
“The first proximate cause, I believe, is, in my opinion, that Mr. Bucchere was operating the bicycle in excess of the posted speed limit of 25 miles an hour.”
“And that is for all the reasons that you previously explained with those math numbers that you gave us; is that correct?”
Did Omid really just say that my speed was explained by “those math numbers”?
“Correct,” Mahoney said. Math numbers.
“And what else?”
“It’s also my opinion that another contributing factor to the collision was the fact that Mr. Bucchere entered the intersection against a red light prior to impacting into the pedestrian.”
“And was there a third proximate cause?”
“The third proximate cause is that Mr. Bucchere violated the pedestrian right of way and that pedestrians should have been allowed to cross the street prior to him entering the crosswalk.”
“Now that you’ve explained how you came to that conclusion, why do you say that?”
“That was based on the white walking man signal that Mr. Hui received and he was proceeding lawfully across the intersection when he was struck.”
“Did the video also help you determine that?”
“I have nothing further.” And with that, Omid sat down.
6 March 2013—342 days since the accident
As the court called for Ted’s cross-examination, Mahoney sat on the stand in an ill-fitting navy-blue suit, the top button fastened, but struggling to stay so. He probably figured his work here was nearly done—and that with a little hustle, he might be able to beat the traffic and make it home in time for dinner.
“Good afternoon, Mr. Mahoney,” said Ted.“How are you?” he asked, sounding like he genuinely cared.
“I’m fine, thanks,” said Mahoney, clearly unaware of what we had in store for him.
“You gave us a lot to chew on, so I’m going to take some time and go through it with you,” Ted said.
“Okay,” said Mahoney.
“You were retained by the District Attorney’s office as an accident reconstruction expert; is that correct?”
“And what is your financial arrangement with them?”
“I bill the District Attorney’s office for my time doing the work.”
“And what is your rate?”
“My rate is $200 an hour.”
“And how many hours have you billed?”
“So far, I’ve billed thirteen and a half.”
“And is your rate the same for courtroom time?”
“No, it’s not.”
“What are you charging for this appearance?”
“I’m charging $350 an hour.”
Wow, I thought. Ted better hurry or else my taxes are going to go up.
“Okay,” said Ted, while I wondered if expert witnesses were nothing more than highly compensated talking bobbleheads who said whatever their clients paid them to say.
If the clients—in this case, the DA and the ADAs—don’t like the expert’s “findings,” they’ll get a new “expert.” If need be, someday we would retain our own “expert” and pay him handsomely to do exactly the same thing that Mahoney was doing here, with an entirely different take on the same evidence. But he would still be our patsy, just the way Mahoney was Gascón’s. This was just another reality-check for me of our criminal justice system—the very same system that we tell other countries is the best and the fairest in the world.
Perhaps it is, but boy does it set the bar low.
Ted continued to ask a series of uneventful questions about what evidence Mahoney used when preparing his report. My ears prickled when Ted started asking about Strava. The media had grossly overstated the importance of this fitness-tracking website to the accident. Ted, Julie, and I viewed it as a real wildcard because, while Mahoney had mentioned it a few times in his report, we couldn’t figure out why or how he intended to use it against me. Because he had padded his gibberish “findings” with more gibberish, it made it really hard to u nderstand the report.
“[Did you review a] Strava printout for March 29th, 2012?” asked Ted.
“So [was] that one page?”
“Oh, no. I’ve got a whole stack of stuff here on that,” said Mahoney with a hearty chuckle. As he spoke, he picked up a two-inch-thick stack of paper and waved it around. My god, I thought, he printed all the Strava data from all my rides over the past three years—what an incredible waste of paper.
I imagined the ADAs instructing Mahoney to print all my GPX waypoints so as to give the impression that using Strava to record enough data to fill a ream of paper automatically made me guilty.
Ted and Omid went back and forth about some lingering discovery issues regarding Mahoney’s decision to use a distance-over-time calculation to determine my speed in lieu of the Strava data.
This came as a surprise to us, because the Mahoney report we had received as part of discovery detailed how he had eyeballed the GPS-interpolated speed graphs to determine that my speed was around 36 mph. But in his direct examination, he had settled on his remarkably precise 32.102 mph based on distances he couldn’t accurately measure divided by time rounded to the nearest whole second, giving him a precision of, best case , +/- 33%.
When dealing with three seconds total, being off by one whole second means one and only one thing: he failed.
“So, as you sit here today in court, your opinion regarding the speed of the bicycle is based upon your timed distance measurements and calculations as you described them to us on direct?” asked Ted.
“Not on Strava data.”
Along with his monosyllabic answer came the sound of the last nail in the Strava coffin.
Although the media and the DA had used my GPS ride-tracking on Strava to slander me, they never officially used it in their case against me. After dozens and dozens of articles and thousands of comments claiming that Strava was the thing that “made me do it,” this was the full extent to which the prosecutors cared about Strava: printing and waving a ream of paper around in front of the courtroom.
I felt sorry for the trees condemned to death so they could be used by Mahoney for these ridiculous purposes.
With Strava put to rest for good, Ted finally got to the interesting part.
“The third finding that you made was that the walk signal for east-west travel in the south crosswalk on Castro Street illuminated at 8:02:14, three seconds before the collision?”
Our review of the video, based upon adding seven seconds to the exact frame in which the traffic signal changed from green to yellow, showed that the WALK indicator came on when the video clock showed 8:02:17, when my bike had already entered the southern crosswalk and I was literally inches away from Mr. Hui, Mrs. Hui, and Wen-chih, and also dangerously close to five other pedestrians.
So, 8:02:14 vs. 8:02:17: these times are three whole seconds apart. Only one of them correctly reflected what happened. 8:02:17 meant that I went through a late yellow and pedestrians egregiously jumped the WALK indicator. 8:02:14 meant that I egregiously blew a red light by three seconds and most of the pedestrians waited for WALK indicator before crossing. Only one of those explanations was correct: The one based on the traffic signal. The other one was based on paying a pretend expert—certified eight ways to Sunday—$350/hour to lie on the stand.
“A fourth finding that you made was that the traffic signals controlling north-south traffic on Castro Street at Market Street were a solid red for six and a half seconds before the collision?”
“Yes.” Again, we knew Mahoney missed the mark here by at least three seconds, a veritable eternity in the world of traffic accident reconstruction. By comparison, all relevant information in the video pertaining to my accident takes place in a little over three seconds.
Ted continued confirming Mahoney’s findings, in excruciating detail. He then showed Mahoney a still from the video at 8:02:14 (Defense Exhibit A) and asked him to locate me and my bicycle, circle them, and label the circle with my initials. He complied.
“And so it appears to you that at 8:02:14, as you’ve told us, Mr. Bucchere’s position was inside the north side of the north crosswalk?” Ted asked, continuing to dig Mahoney’s grave with several more questions, making sure he was absolutely certain that I was inside the intersection at 8:02:14.
We of course knew—and Mahoney didn’t—that the light turned red at frame #4431, just before the “wall” clock turned to 8:02:14. This meant that Mahoney—once we showed him the traffic light in the video—would prove, with the DA’s own evidence, that I had entered on a yellow and that the light turned red when I was already in the intersection, well past the northern limit line.
“So, I’m going to write down here for you to look at in a minute: Bucchere location at 8:02:14, 141.25 feet from the point of impact; is that fair?”
“Now, I want to direct your attention to the video that’s on the screen.” Ted’s voice seemed to deepen a touch. I reflexively began tapping my pen on my little notebook. Julie grabbed my hand and gave me a look: Stop it!
Ted continued: “And as we discussed, this was a security camera video from the Twin Peaks Tavern on the southeast corner of Market and Castro streets, correct?”
“Do you know what model recorder it is?” We did, even though it hardly mattered at this point since any notion of precision had been thrown out the window.
“Do you know any of its specifications?” We did, even though they definitely didn’t matter, except for the frame rate of 6.2fps, which we got from inspecting the video.
“You see that it has a split screen?”
“And I want to go back to 8:02:01. I’m going to direct your attention to the lower screen and I’m going to ask that we run to 8:02:08. And this was the video that you examined as part of your investigation in this matter, correct?”
“And directing your attention to the upper screen and in the left-hand corner where I’m circling, can you tell us what that appears to be?” Ted drew imaginary circles over the left-hand corner of the projection screen, where a single traffic light glowed green.
“I have no idea,” said Mahoney.
Please don’t tell me that this guy is going to deny that there’s a traffic signal in the video—just like Pollak denied seeing his car stop at the limit line thirty seconds after the accident. Is he going to refuse to see the obvious presence of a traffic light in the video? I felt terrified once again.
“Okay. Do you see there’s a light at the bottom of it that appears to be lit?” Ted pointed to the green part of the light. That was a big hint. I was surprised that Omid didn’t object.
“No,” said Mahoney, continuing to deny the existence of a traffic light in the video. Still no dice.
“Okay. Why don’t you stand up and take a look.” Ted, somehow keeping his cool, really needed Mahoney to admit to the presence of a traffic signal. The signal served as the centerpiece of our entire defense—and my pass to get off this crazy train and go back to what was left of my life.
“Doesn’t that look to be a traffic signal?” Again, I was really surprised that Omid didn’t object to the leading question. Perhaps he was caught off guard so much by the traffic light that he couldn’t focus on how Ted was destroying this “expert” witness.
“For 17th Street?”
No! 17th Street dead-ends into an F Market train stop and Naked Guy Plaza. There’s no traffic signal controlling traffic at 17th because there’s no traffic to control.
“For Castro Street south,” Ted said, correcting the “expert” and again, somehow not drawing an objection from Omid for leading the witness. “We’ll figure that out in a minute. Does it appear to be a traffic signal?”
“It appears to be traffic signal. I don’t know what it’s hooked up to.”
“Okay. Please stand right there,” Ted said, like he was talking to a two-year-old, because he effectively was.
Just then Omid, who also stood near the defendant’s table, turned to face the wall and snapped, “This is a waste of my time!”
I spun my head to the right to look at him, not able to believe the blatant irony in what I had just heard. The introduction of a traffic signal in the video just upended the prosecutor’s case, but somehow we were wasting his time.
“So let’s watch that traffic signal. And we’ll go to 8:02:11. Did you see that the signal changed from [the] lower to the middle spot there?”
Ted showed Mahoney the video again while he stood there, just feet away from the video screen, looking like a blooming idiot.
“Okay. Let’s back up. Let’s go back to 8:02:08,” Ted said, becoming increasingly pedantic. Julie rewound the video. “8:02:07 is fine. I ask you to watch the traffic signal and tell me what happens at 8:02:11.”
Julie played the video. At roughly 8:02:11, the light changed from green to yellow, then three and a half seconds later, to red. Mahoney stared at the upper left portion of the video, where he saw something like this:
“No, I didn’t. I’m not seeing it move,” Mahoney said, after he watched the traffic signal turn from green to yellow to red and saw the traffic respond accordingly. At this point, I’m sure every other person in the courtroom could easily see a traffic signal changing colors from green to yellow to red, just like most of the traffic signals in this country. However, the impressively certified accident reconstructionist couldn’t.
“Okay,” said Ted, even though Mahoney’s shenanigans were anything but “okay.”
“But I don’t know what this signal is for,” added Mahoney.
There was no question pending, so I wondered why Omid didn’t object and move to strike, especially since it sounded like Mahoney had finally just admitted that there was in fact a traffic signal in the video. However, he was already preparing to weasel his way out of its relevance to our case by claiming that either it didn’t change colors or that it somehow didn’t apply to the intersection in which it was located.
“Right,” Ted snapped, trying to keep the “expert” focused. “We’re going to determine that in a minute. You agree, do you not, that at 8:02:11, the traffic signal for east-west traffic on Market Street was not green?”
“And it wasn’t yellow?”
“I don’t believe so, no.”
“Couldn’t have been, right?” It took Ted a while, but it seemed we had finally determined that Mahoney knows that if a traffic light is green or red, it can’t also be yellow at the same time.
“Well, if that’s a yellow light, then that has to be for north-south traffic on Castro Street, right?”
“I don’t know what it’s pointed to. That’s the 17th Street light.”
He is in full-on denial mode; there is no 17th Street light!
Ted eventually got Mahoney to identify a black sedan, a white minivan, Tobias and his bike, and, finally, after moving the video forward to 8:02:37, Nathan Pollak’s Honda Element.
“Now, I want to go back to 8:02:11. And I guess I do need you to stand, Mr. Mahoney. I’m sorry,” said Ted.
For $350 taxpayer dollars per hour, I’m sure Mr. Mahoney wouldn’t mind getting a little exercise. Julie played the video again, for the umpteenth time.
“In the upper screen, you see that this light has turned yellow?” asked Ted.
“And let’s go to 8:02:14. You see that the light turns red?”
“And you see that Mr. Bucchere’s head appears to be within the intersection?”
Bravo! With that answer, Mahoney’s newly discovered “expert opinion” indicated that I was already in the intersection when the light turned red, which is the exact opposite of running a red light.
“And so that light that appears to be controlling traffic north and southbound on Castro Street turned red at 8:02:14, correct?”
“That traffic signal, yes.”
Mahoney’s complexion started to make a faint but noticeable transition from pale white to pink to pinkish-red. Perhaps it had finally occurred to him that he had just debunked his own conclusions about the light and my position relative to it, giving me the uncontested right of way. Ted clearly also thought that Mahoney failed to answer the question, so he tried again:
“It appears to be controlling traffic north and southbound on Castro Street?”
“I don’t know what that traffic signal is controlling.” Dear god, here we go again.
“Okay. Thank you,” Ted said, as if he had already heard enough about the traffic signal located at the corner of Market and Castro that—somehow, according to Mahoney—did not actually control traffic at Market and Castro. All the while, Mahoney’s face kept turning progressively darker shades of red.
Ted decided to change the topic and started a different line of questioning.
“So, let’s go back to the WALK sign for pedestrians, and I’m going to ask you to assume for a minute that what I’ve been pointing to in the upper left corner of the upper screen is the traffic light controlling traffic north-south on Castro Street.”
“Yes. I want you to assume that for a minute.”
“If that signal turned red at 8:02:14, then the all red signal would be illuminated for another three and a half seconds, correct?”
“And that would take us to approximately 8:02:17.5?” The WALK signal had come on for east-west pedestrians at around that time.
“This is 8:02:14 and you would agree—bear with me on my assumption—that this is the traffic light controlling north-south traffic. If it just turned red and these people, these two individuals standing on the east side of the south crosswalk at Castro Street do not have a WALK signal?”
“If you are assuming that, correct.”
With that single stroke of brilliance, Mahoney just proved that Wen-chih’s testimony, Angelo’s testimony, Pollak’s testimony, Betty Hui’s statements to the police, and at least a dozen other eyewitness accounts of the accident—each of which said that I ran a red light and that all the pedestrians had the favor of the WALK symbol—were incorrect.
If, of course, we assume that the traffic signal at Market and Castro controls the traffic at Market and Castro.
But here in the topsy-turvy world of “criminal justice,” Michael Mahoney—whose face now looked like a tomato—tried to lie about how a traffic signal at Market and Castro didn’t actually control traffic at Market and Castro.
If I had any remaining bit of faith in our criminal justice system—or thought that it had any connection to reality—it was gone now, for good.
Ted, somehow keeping a cool head, plodded onward, trying to make Mahoney aware of the obvious truth: that eight pedestrians entered the crosswalk at various times and speeds, between two and fourteen seconds early, creating an impossible and deadly morass for me, the cyclist who had lawfully entered the intersection on a yellow light and then had no feasible way to safely exit that same intersection, what with a MUNI bus, a car, and eight pedestrians in the way.
Ted continued with the cross-examination, seeming not to mind that Mahoney was categorically denying that the traffic light located in the intersection where the accident occurred had anything to do with the accident.
“Directing your attention to the screen again, People’s Exhibit Two, 8:02:15, you see that?” The following image displayed on the projector screen, depicting the crosswalk approximately two seconds before the accident.
“Yes,” said Mahoney, confirming that he thought he was paying attention. In reality, who knew what this clown was and wasn’t seeing—and what he was hiding.
“And you can see that the two pedestrians [have] now advanced farther in the crosswalk in the westbound direction?”
“The female is approximately halfway across the street?” That female was Wen-chih, the most egregious jaywalker.
“The male is lagging somewhat behind her; is that correct?”
“Two pedestrians down here at the east side of the crosswalk now appear to have started to enter?” The pedestrian on the left remained unidentified, but the one on the right with the shiny head was Angelo Cilia, who we had heard from earlier that morning. Angelo, Wen-chih, and Betty Hui all said they had waited for the WALK symbol, Betty adding that Sutchi always waited a few extra seconds for good measure.
“And can you see up there that the two individuals at the top of the lower screen also appear to have started to walk forward?” Ted pointed to Mr. and Mrs. Hui, who stood side by side, Mr. Hui to the south (left) and Mrs. Hui to the north (right).
“I wouldn’t be able to tell from this viewpoint.”
“So, can we please reduce the lights?” asked Ted. The bailiff dimmed the lights. “We’ll go forward one frame to 8:02:16.” After Julie advanced the video one frame, the projector screen showed the following image:
It’s very easy to tell, by comparing this frame to the previous one, that Mr. and Mrs. Hui have started to cross.
“[At] 8:02:16, were you able to see that the two individuals at the top of the screen took a step into the intersection?”
“And consistent with your understanding, that would be Mr. and Mrs. Hui, correct?”
“And if the light turned red at approximately 8:02:14, then it’s your opinion that the WALK pedestrian signal would not have illuminated yet, correct?”
“That’s not my opinion. My opinion is that it was activated.”
“Yeah, I know,” said Ted, almost as if he was humoring him. “I’m asking you to—because I’m trying to save some time here—assume I’m correct that the light that [at which] we’ve been looking in the upper left-hand corner of the screen controls traffic for north-south on Castro Street, correct?”
“If you want to make that assumption. I don’t agree with that but that’s all right.”
Mahoney again insisted, in his expert opinion, that the traffic signal located in the southeast corner of the intersection of Market and Castro did not in fact control north-south traffic on Castro Street as it crosses Market Street.
I began to worry again. Will this guy get away with denying the traffic light? Will I go to jail for six years because he won’t recognize what is painfully obvious to everyone? How could he pull this off? Is he going to get away with it? How is Ted letting this happen?
“I’m asking you to,” said Ted, slowly and deliberately.
“Okay,” said Mahoney.
“And assume it turned red at 8:02:14 as we saw.”
“Okay. Then you would agree in that circumstance, that the walk signal for east-west traffic on Castro Street would not have illuminated yet?”
“Under that circumstance, yes.”
“Okay. Thank you. And then let’s go to 8:02:17.”
The following image glowed on the projector screen in the dimly-lit courtroom.
“And you see that the accident just occurred, correct?”
“You can see that one of the two individuals that entered the street is still standing?” That was Betty, who escaped death or serious injury only because she lagged maybe a half step behind her husband.
“And that the woman who was proceeding westbound is approximately three-quarters of the way across the street?” That was Wen-chih, who escaped death or serious injury because at the very last second I pulled out of a leftward dive, probably because I discovered that she and I were on a collision course.
“Probably within feet of the accident when it occurred?”
“And that at least three other individuals are well into the crosswalk at this time, correct?”
“And you would agree that if the red light controlling—and this is my assumption for you—controlling north-south traffic on Castro Street illuminated red at 8:02:14, then the pedestrian walk signal would illuminate at approximately 8:02:17.5?”
“Under that assumption, yes.”
At this point, my anger at Mahoney and at nearly everyone involved in this ludicrous campaign to ruin my personal and professional reputation started to subside. Mahoney, whether he knew it or not, had given us almost everything we needed. He told us that I was in the intersection when the light turned red. He told us that Betty and Sutchi Hui, Wen-Chih, Angelo, and five other pedestrians all crossed against a DON’T WALK symbol. He told us that the video depicted a traffic signal, that the traffic signal changed colors, and that it turned red at approximately 8:02:14. Now only one thing stood between me and my ticket to freedom: Mahoney just had to admit that the traffic signal at the corner of Market and Castro controlled north-south traffic at Market and Castro.
That seemed simple enough. How hard could that be?
Plus, I knew that Ted, the best criminal defense attorney in the Bay Area, armed with surveillance video evidence, didn’t plan on letting Mahoney get away with his lies.
Things finally seemed to be looking up. Ted pressed on:
“So during your examination of the accident scene, did you notice that there’s a little sort of plaza that’s sort of part way out into the street from the crosswalk? It’s a plaza area off the crosswalk on the south side of Market Street out in front of the Twin Peaks Bar?” Ted asked, in reference to Naked Guy Plaza, officially called Jane Warner Plaza.
“Do you see it depicted on the right-hand side of the video here at the lower screen?”
“And do you see it also on the left-hand side depicted at the upper screen?”
“And the traffic signal that we’ve been talking about appears to be at the far end of the plaza from the video camera?”
“I would like to show you what’s been marked as Exhibit D [and] ask you if you recognize that?”
“And what do you recognize it to be?”
“A picture of the intersection of Market and Castro looking northbound on Castro from the southeast corner.”
“Does it appear to have been taken from the area of the Twin Peaks Bar?”
“And as you look at it, do you see three traffic signals?”
Once again, we were making progress. Let’s keep this up.
“Are they all red?”
“And you see one on the lower right side above what appears to be some bushes?”
“And then you see one immediately behind it, still on the right side but on the other side of the street that appears to be clearly controlling traffic northbound on Castro Street?”
“And then across Castro Street on the west side, you see a third traffic signal also red that appears to control traffic northbound on Castro Street?”
“Okay. Now, does that cause you to recognize that this signal that we’ve been talking about in the upper screen of People’s Exhibit Two is the same traffic signal that appears on the right-hand side by those bushes?”
The anger that had started to subside now welled up inside me again, like a volcano right before eruption. Our entire case hinged upon his acknowledgement of this traffic signal, the traffic signal that anyone looking at the video or the photographs could easily tell controlled north and southbound traffic on Castro Street as it crossed Market Street. I don’t consider myself a violent person, but at this juncture, I considered violence.
Then, all of a sudden, my anger dissipated and wafted away into the stuffy, foul air in the courtroom. I realized—in a rare moment of clarity—that my anger and resentment far transcended Mahoney’s unbelievable stonewalling unfolding before me. It transcended my case altogether.
This isn’t even about me anymore. This is about all the poor bastards who preceded me and who didn’t have the luxury of a video account of their entire accident that clearly exonerated them. How many innocent people—everyday people like me—are serving time because of this motherfucker and his “math numbers”? Of how many millions upon millions of dollars did Mahoney defraud insurance companies, forced to pay out claims based upon false pretenses? Is this whole “accident reconstruction” industry a charade, a sham with nothing more than a façade of legitimacy?
It finally dawned on me how Mahoney determined that the WALK symbol came when people started walking: because his whole industry, with all its absurd “certifications,” was just a gaggle of quacks making up just enough “math numbers” to fool most judges and juries.
As these wild, disjointed thoughts coursed through my head, the interplay between Ted and Mahoney continued before me. I snapped back to reality.
Mahoney’s still in denial about this traffic light. I hope Ted has a plan. Ted had better have a plan.
“Okay. I’m going to show you one last exhibit and ask you if you recognize it. It’s been marked Defense Exhibit E,” Ted explained to Mahoney.
Perhaps this was Ted’s plan: keep asking the same goddamn question over and over and hope that eventually he gets the right answer.
“[Do] you recognize that?” asked Ted, pointing to Exhibit E.
“What’s that depict?”
“[It] depicts looking northwest through the foliage on 17th Street toward Market.”
“And you can see clearly that there’s a traffic signal that’s red, right?”
Suddenly, a voice to my left distracted me from Mahoney’s excuses for not acknowledging the traffic light in the video.
Wait, I recognize that voice—it’s Inspector Cadigan!
I looked over at the prosecution’s table and, sure enough, I found that Omid and Inspector Cadigan were engaged in a lively discussion, not even bothering to whisper. I could only assume it was about me and my case. If I could just read Lori’s lips a bit, I bet I could make out what they’re saying.
As I leaned forward, trying to process what I was hearing and seeing, Omid suddenly looked up and caught my eye. Quickly and deftly he leapt out of his seat and proclaimed, “Your Honor, the defendant is staring at me! I would ask our deputy to ask him to look forward during the preliminary hearing.”
I snapped my head forward and looked at the judge, for the very first time actually feeling guilty of something.
“Response?” asked Judge Cheng, looking at Ted.
“Your Honor, I’m sure Mr. Bucchere has no interest in looking at Mr. Talai.”
On the contrary, I felt deeply interested in their not-so-secret sidebar conversation, but I silently agreed to restrain my eye movements to the court-approved directions, if only because it would probably help my chances of not going to jail.
“All right. Instruct him not to do that,” ordered Cheng, seeming half puzzled and half annoyed at the same time. “Go ahead.”
“Now, do you see the traffic signal that’s pretty much in the center of the picture?” Ted asked Mahoney, trying yet again to prove that the traffic light in the intersection was in fact the traffic light in the intersection. How long will this go on? I wondered.
“And do you see it’s right above the foliage that marks the border of the plaza area outside the Twin Peaks Bar?”
“And you see it’s right next to the street sign that marks Castro Street?”
“And does that help you recognize that the signal we’ve been talking about in the upper corner on the left side is the signal that controls north-south traffic on Castro?”
Good grief. Somehow, Ted had the fortitude to press on.
“Okay. Sir, you told us that the distance from the point of impact to the north side, north crosswalk on Market Street is 167 feet?”
“You don’t know the distance to the limit line that’s further north of the north side crosswalk?”
“You agree that the pedestrian WALK sign for east-west traffic on Castro Street did not illuminate until three and a half seconds after the traffic signal turned red, correct?”
“You agree that if the traffic signal turned red at 8:02:14, then the pedestrian WALK signal illuminated at 8:02:17 and some change?”
“If you’re assuming that that traffic signal is covering north-south traffic.”
“You agree that at 8:02:14, westbound pedestrians were already in the crosswalk on Castro Street, on the south side?”
“You agree that at 8:02:14, westbound pedestrians started walking even further into the crosswalk?”
“You agree that at 8:02:16, a westbound female pedestrian was more than halfway across Castro Street?” Ah, Wen-chih.
“You agree that at 8:02:16, Mr. and Mrs. Hui started walking eastbound into the crosswalk?”
“That, I don’t know.”
How quickly you forget. Mahoney had already identified the Huis crossing two seconds early umpteen dozen questions ago.
“Okay. Going back to 8:02:15—I ask you to watch the two figures, the two figures that I’ve circled at the top of the lower screen, and tell me if you see them moving into the crosswalk between 8:02:15 and 8:02:16?”
“So, you agree that those two figures proceeded into the crosswalk at 8:02:16?” Ted traversed familiar territory, no doubt winding up for the big kill. All he needed to do was ask the right question—or show the right piece of evidence—and Mahoney would be forced to acknowledge the traffic signal. Why not just play the entire video, watching the signal change from green to yellow to red, over and over, and the vehicle traffic and foot traffic following suit?
“Yes,” said Mahoney. His bright red face now seemed to have a bit of a deer-in-the-headlights look, too.
“You agree at 8:02:17, the westbound female pedestrian was well into the southbound traffic lanes on Castro Street in that crosswalk?”
“She’s on the south side of the roadway, she’s not in the southbound traffic lane. She’s inside the crosswalk.”
Of course she’s in the crosswalk—but she’s ALSO in the middle of the southbound traffic lane. Because the crosswalk cuts right across the southbound traffic lane. Jesus.
“She’s inside the crosswalk and she’s passed the midline of the street into the southbound side of Castro Street?”
“And you would agree that she posed an obstacle to Mr. Bucchere as he proceeded into the intersection?”
“I have no idea,” Mahoney answered.
What a strange question, I thought. Where is Ted going with this?
Before I had time to ponder that, Ted quickly uttered five words I never expected to hear at this juncture: “I have no further questions.”
I could not believe what was happening right in front of me. Had Ted just given up?
6 March 2013—342 days since the accident
I gnashed my teeth and grabbed Julie’s arm. The desperate, half-whispered words, “Why the fuck did Ted just give up?” eked out from between my mashed-together molars. In response Julie, her calm demeanor in sharp contrast with mine, simply said, “He knows Mahoney isn’t going to give us what we need.”
I bowed my head in disbelief. As much as I didn’t want to believe it, Julie was probably right. Ted didn’t want to have to beg Mahoney to tell us that the traffic light on the southeast corner of Market and Castro controlled traffic flowing through the intersection of Market and Castro. Mahoney had already dug in, so further attempts to badger him for the truth about the traffic signal would only make us appear unprofessional.
Besides, I thought, Ted must have some kind of plan. He had better have some kind of plan.
My short-lived rumination session ended abruptly. Ted had a quick conversation with Omid and Judge Cheng, then he, Julie, Fred, and I gathered our things and walked out of the courtroom, navigating our way through a stormy sea of reporters asking pointless, inane questions, undoubtedly trying to elicit some sort of violent reaction from me.
As per the usual, they almost succeeded. Don’t let them get to you, I coached myself. Don’t do anything stupid.
Nary a word came out of anyone’s mouth as we walked down the outdoor steps of the imposing Hall of Justice and over to Cafe Roma, where we plunked ourselves down at a table for a quick debrief.
“I gave up on Mahoney when I realized he wasn’t going to change his mind about the traffic light,” said Ted, jumping straight to the most contentious topic.
“I know. Julie told me. I hope we never see that fucker again,” I said.
“Now wait a minute. We got almost everything we needed from him. You should be happy!”
“Yeah, I’m about to dance a goddamn Irish jig.”
“Come on, look what we got: We got him to tell us that he didn’t use Strava at all in his investigation; we got him to admit that you were already in the intersection when the light first turned red; and we got him to admit that Mr. Hui and a bunch of other people crossed against a DON’T WALK.”
“Yes, but all of that is predicated on the traffic light he managed to deny right out of existence. How did he get away with that?”
“He’s being paid to lie on the stand and everybody knows that. Besides, Mahoney’s not the only one who can prove that the light bears relevance. I can go down to Market and Castro tonight with a private investigator, and he can take photos and videos that will prove it. We need to beat sunset so we can get decent light for the video.”
“How much is this going to cost me?” I asked.
“Probably around a grand.”
“Do we have any other options?”
“Not that I can think of.”
“Well then, add it to my tab.”
With that, the other members of the group and I started to get up, but Ted grabbed my arm. I sat back down.
“Wait, there’s one more thing,” Ted said, as the expression on his face showed signs that he might be on the verge of losing a sliver of his relentless determination to win this case. “We might have already lost the PX.”
“What? What the hell makes you think that?”
“When I approached to talk to the judge, he asked me if we could just wrap things up right now instead of coming back tomorrow.”
“Dear god,” I muttered, rolling my eyes. “That means Judge Cheng has already made up his mind and doesn’t give two shits about the traffic signal or any other part of our case, right?”
“Remember, the standard for the prosecution in a PX is very low. All they have to do is show suspicion that there was gross negligence.”
“They haven’t shown a goddamn thing, Ted! Just a bunch of people who gave false testimony that didn’t match their own fucking video, and an expert who’s so certified, he’s practically certifiable!”
“Witness credibility can’t be factored into a PX either.”
“Witness credibility? This isn’t about credibility. It’s about how none of their facts lines up. Not one! Their entire case is based upon a litany of biases, misunderstandings, misconceptions, pseudo-science, and outright lies! There’s no way their bullshit is going to make it past the PX.”
“Look Chris, settle down. There are three things that can happen tomorrow: The judge can rule that you must stand trial for a felony; he can knock your charge down to a misdemeanor; or he can let you walk. After talking to Judge Cheng, I’m losing faith that things are going to go our way, but we still have a fighting chance.”
“Jesus! What are we going to do about this?”
“We’re gonna cut the crap and go get our PI to video that traffic signal while it’s still light out.”
With that, our impromptu meeting adjourned, and my entourage of highly compensated guardian angels stood up and scattered in different directions. As I walked back to my car, I grew more and more confident—that despite what Ted said about Judge Cheng having already made up his mind, when the PI took the stand tomorrow and showed the judge that the traffic signal was in fact the traffic signal, everything would come to a screeching halt and I would walk away a free man.
Perhaps I held false hope, but it mattered little at this juncture. False hope or not, it was all I had left.
>> Continue to PART VII (c): Kangaroo Court, Concluded
For a closer look at the research behind Bikelash, visit the companion GitHub project.